[Cites 11, Cited by 0]
Gujarat High Court
State Of Gujarat vs Vadiyabhai Dosalbhai Varu on 1 May, 2026
NEUTRAL CITATION
R/CR.A/61/2000 JUDGMENT DATED: 01/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 61 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
and
HONOURABLE MR.JUSTICE D.N.RAY Sd/-
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Approved for Reporting Yes No
--- No
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STATE OF GUJARAT
Versus
VADIYABHAI DOSALBHAI VARU & ORS.
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Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 01/05/2026
JUDGMENT
(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)
1. Present appeal is directed by the appellant - State
challenging the judgment and order of acquittal dated
09.12.1999 passed by learned Sessions Judge, Amreli, in
Sessions Case No.35 of 1997, whereby the learned Sessions
Judge acquitted the accused persons - the opponents herein
for the offence punishable under Sections 449, 302 and 34 of
the IPC.
2. As per earlier order dated 14.11.2025, respondent nos.1
and 2 have expired and appeal has abated qua them,
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therefore, the present appeal is heard only qua respondent
no.3.
3. The brief facts of the prosecution case are that on
26.7.96 at 9:30 a.m., at Nageshree Village of Jafrabad Taluka
in Amreli-District, the accused, (1) Wadiabhai Dogalbhai Varu
(2) Jorubhai Jilubhai Varu and (3) Jelubhai Jilubhai Varu, entered
the house of Kathi Nankubhai Kathubhai Varu with the
intention of committing the crime and in the courtyard of his
house, they assaulted the complainant Nankubhai Kathubhai
Varu on head, legs and other parts of his body with an iron rod,
causing him injuries and intentionally causing his death.
Nankubhai Kathubhai Varu, who died during treatment, had
filed a complaint against the accused at Nageshree Police
Station. On the complaint of the complainant, the Nageshree
Police registered a case against the accused persons under
Sections 302, 34, 449 of the Indian Penal Code and 135 of the
Bombay Police Act being Crime Register No.I-18/1996.
3.1 After registering the case upon finding sufficient evidence
during investigation against the accused, Police Inspector of
Nageshree Police Station had submitted the charge sheet in
the Court of the learned Judicial Magistrate. As the case was
exclusively triable by the Court of Sessions, learned Magistrate
Court under Section 209 of the Cr.P.C. committed the said case
to the Court of learned Sessions Judge, Amreli, which came to
be numbered as Sessions Case No35/1997. Since, the accused
did not plead guilty and claimed to be tried, they were tried for
the said offences.
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3.2 At the trial, in order to bring home the charges levelled
against the accused, the prosecution examined 14 witnesses
and also relied upon 21 documentary evidence.
Oral evidence:-
PW 1 - Exh.10 Pravinbhai Nankubhai Kathi.
PW 2 - Exh.13 Manharben, widow of Nankubhai Kathubhai.
PW 3 - Exh.30 Dr. Jayesh Maganbhai Waghmashi, Medical
Officer, Community Health Center, Rajula.
PW 4 - Exh.34 Tulshidas Kashiram Devmurari, retired Deputy
Mamlatdar, Rajula.
PW 5 - Exh.38 Panch Witness Bhimabhai Jinabhai Koli.
PW 6 - Exh.40 Panch Witness Nanjibhai Amrabhai Koli.
PW 7 - Exh.41 Panch Witness Dosalbhai Nanabhai Kathi.
PW-8 - Exh.44 Allahrakha Sidibhai Dal, Police Head Constable,
Rajula Police Station.
PW-9 - Exh.45 Pravinbhai Karshanbhai Der, Police Constable,
Rajula Police Station.
PW-10 - Exh.46 Ajitbhai Dadubhai Syed, Police Head Constable,
Rajula Police Station.
PW-11 - Exh.48 Dalsingbhai Savjibhai, Police Head Constable,
Rajula Police Station.
PW-12 - Exh.49 Ibrahimbhai Jamalbhai Shaikh, Police Head
Constable, Rajula Police Station.
PW-13 - Exh.50 Jayantibhai Ambalal Patel, Police Head
Constable, Nageshree Police Station.
PW-14 - Exh.53 Juwansinh Jivubhai Sarvaiya, Police Head
Constable, Nageshree Police Station.
Documentary evidence:-
Exh.14 Report by PSO, Rajula to PSI, Rajula, after filing the
complaint.
Exh.15 Yadi sent by Medical Officer, Rajula, to PSI, Rajula.
Exh.16 Yadi sent by PSO, Rajula, to Executive Magistrate,
Rajula for recording dying declaration.
Exh.17 Yadi sent by Medical Officer, Rajula to PSI, Rajula,
regarding death of the injured Nankubhai Kathubhai.
Exh.18 Inquest Panchnama along with Inquest Form.
Exh.19 Receipt for handing over the body of the deceased to
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Mangalubhai Kathubhai Varu.
Exh.20 Yadi for handing over the blood-stained clothes of the
deceased by Medical Officer, Rajula to PSI, Rajula.
Exh.21 Panchnama of the place of offence.
Exh.22 Panchnama regarding seizure of the clothes from the
dead body for examination.
Exh.23 Panchnama regarding production of clothes by
Manharben Nankubhai, which were worn by the
deceased at the time of the incident.
Exh.24 Arrest Pachnama of accused Wadiabhai Dogalbhai and
accused-Jorubhai Jilubhai.
Exh.25 Arrest panchnama of accused-Jelubhai Jilubhai.
Exh.26 Receipt of muddamal received by the analyzer for
examination and office copy of the muddamal.
Exh.27 Map of the scene of offence prepared by the Circle
Inspector, Taluka Panchayat, Jafrabad.
Exh.28 Notification under the Arms Act by Additional District
Magistrate, Amreli.
Exh.29 Analysis report of the Chemical Analyzer along with
forwarding letter.
Exh.32 PM Note of the deceased-Nankubhai Kathubhai,
prepared by Dr.Waghmashi.
Exh.39 Discovery Panchnama of the iron pipe given by
accused Jorubhai Jilubhai and the iron pipe given by
accused Wadiabhai Dosalbhai.
Exh.42 Discovery Panchnama of iron pipe given by accused
Jelubhai Jilubhai.
Exh.47 Complaint of Nankubhai Kathubhai Varu.
Exh.51 Extract of Rajula Police Station Diary Note Nos.13, 14,
18, 23 and 24.
3.3 At the end of the trial and after recording the statement
of the accused under Section 313 of the Code, and upon
hearing the arguments on behalf of the prosecution and the
defence, learned trial Court acquitted present respondents -
accused from all the offence vide impugned judgment and
order of acquittal dated 09.12.1999 passed by learned
Sessions Judge, Amreli, in Sessions Case No.35 of 1997 .
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4. Being aggrieved by the same, the appellant - State
preferred present appeal under Section 378 of the Code of
Criminal Procedure, 1973.
5. Heard learned APP, Ms.Monali Bhatt for the appellant-
State and perused the evidence available on record. Learned
APP for the appellant - State has contended that, the learned
Sessions Judge has committed an error in acquitting the
accused persons though the prosecution has successfully
proved the case beyond all reasonable doubt against the
accused persons. The prosecution has examined as many as
14 witnesses and produced 21 documentary evidence,
including the dying declaration of the deceased, panchnama,
postmortem report, FSL report, which proves the factum of the
incident. She has submitted that keeping in mind, the grudge
for right of way, the alleged incident took place. She further
submitted that the medical officer has also opined about the
injury caused by a hard and blunt substance. She has also
submitted that the factum of homicidal death is also proved.
She further submitted that the complaint is filed by the
deceased himself in the Government hospital, and during the
treatment, he succumbed to the injuries. She also submitted
that the role of each accused is clearly spelled out by the
witnesses and is clear that due to serious injuries caused by
the iron pipe, the deceased succumbed to the injuries. She has
also submitted that the son and wife of the deceased, i.e. PW-1
and PW-2 are the eyewitnesses to the incident, and they have
supported the case of the prosecution. She has submitted that
there was no reason to discard or disbelieve the cogent
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evidence led by the prosecution, more particularly, the dying
declaration which is proved by the Executive Magistrate
examined as Exhibit-PW4, and the version of the complainant
is also corroborated, and bloodstains are also found on the iron
pipe. Making all these submissions, she has prayed to allow the
appeal.
6. Considering the law laid down in the case of Babu
Sahebagouda Rudragoudar v. State of Karnataka, 2024
SCC OnLine SC 561, every criminal trial starts with general
presumption and one of the cardinal principle of criminal
jurisprudence is that, there is a presumption of innocence in
favour of the accused, unless proven guilty. Burden of proving
the case of the prosecution always rests on the shoulder of the
prosecution. As a consequence, the onus on the prosecution
becomes more burdensome as there is a double presumption
of innocence, which gathers strength before the appellate
Court.
7. It would be further apposite to refer the decision of the
Hon'ble Apex Court in case of Jafarudheen v. State of
Kerala, (2022) 8 SCC 440:
"While dealing with an appeal against acquittal by
invoking Section 378 CrPC, the appellate court has to
consider whether the trial court's view can be termed as
a possible one, particularly when evidence on record has
been analysed. The reason is that an order of acquittal
adds up to the presumption of innocence in favour of the
accused. Thus, the appellate court has to be relatively
slow in reversing the order of the trial court rendering
acquittal. Therefore, the presumption in favour of the
accused does not get weakened but only strengthened.
Such a double presumption that ensures in favour of the
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accused has to be disturbed only by thorough scrutiny on
the accepted legal parameters."
8. At the outset, the factum of death is not seriously
disputed by either of the parties before the learned trial Court.
The deceased himself had filed the complaint initially for the
offence punishable under Section 325 of IPC during treatment
and, since the deceased succumbed to injury, Section 302 was
subsequently added. Homicidal death is proved by the
evidence and is not seriously disputed by the defense. So far
as the allegation of causing the injury by the accused person
and the genesis of the incident is concerned, as per the say of
the deceased in his complaint and the dying declaration, the
cause of the incident was family discord. While leading
evidence before the learned Sessions Judge, witnesses have
stated about the fact that the dispute arose in connection of
right of way. It is stated that prior to two or three days, the
quarrel erupted between the complainant and the accused
person, and due to this reason, keeping the grudge of the
same incident, the accused persons with common intention
trespassed into the house of the deceased, and thereafter,
while the deceased was sitting at his home, they have
committed an assault.
9. To prove the aforesaid fact, the witness, namely,
Manharben, wife of the deceased and his son both are
examined. The widow of the deceased-Manharben, PW-2, is
examined at Exhibit-13. While his son Pravinbhai Nanubhai
Kathi, PW-1 is examined at Exhibit-10. As per the case of the
prosecution, these two witnesses are the eyewitnesses. But
the learned Sessions Judge has appreciated the evidence and
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both witnesses are not found reliable and the presence of both
witnesses is doubtful. More particularly, PW-1, son of the
deceased, was studying in standard 12, and his school time
was up to 1 O'clock, but conveniently, he has stated that he
was present in the house on the fateful day. PW-2, in her cross-
examination, she has stated that after the incident was over,
she came out from the house and she had seen the accused
person making an assault. Both witnesses are not found
reliable on the ground that there is no consistency in their
evidence. Considering the contradictions in the evidence of
both the witnesses, learned Sessions Judge has properly
appreciated evidence and found that both witnesses are not
reliable.
10. Considering the fact that the evidence of investigation
officer coupled with the investigation papers, dying declaration
recorded by the Executive Magistrate, PW-4, Tulsidas
Devmurari, Exhibit-34, in the cross-examination of PW-4, it
reveals that he has not verified about the consciousness of the
deceased. PW-3 Doctor, Jayesh Vagmasi, Exhibit-30, has
clearly stated that when the deceased was admitted in the
hospital, at that time, he was semi-conscious. Considering the
aforesaid fact, dying declaration alone is not sufficient in
absence of any corroborative piece of the evidence and, more
particularly, considering the mental fitness of the deceased,
the evidence is not found reliable.
11. It is found that the panch witnesses have turned hostile.
Even investigation officer has also stated about the genesis of
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the case and admitted the fact that there was a dispute of
right of way and prior to the alleged incident, it was used as a
public way. Another glaring aspect of the entire evidence is
that the real brother of the deceased and uncle of the
complainant, who is an advocate, his presence is noticed
everywhere right from recording of the dying declaration,
drawing the panchnama, and at the time of recording the
evidence evidence by the investigation officer, which is clear
from the cross-examination of all witnesses. Considering the
aforesaid fact and enmity between the two parties, frivolity of
the FIR or over implication cannot be ruled out.
12. So far as the allegation of Section 34 is concerned, the
prosecution has to prove the fact that there was a common
intention on the part of the accused persons and in furtherance
to the common intention, they have committed the offence. In
the present case, panch witnesses have turned hostile and
recovery of weapon is also not proved. Only on one article i.e.
iron pipe, bloodstains are found. So far as weapon recovered
from the present applicant accused no.3 is concerned, no
bloodstains are found. Not only that use of weapon and its
recovery are also not proved. Therefore, it is found that there
were bloodstains only one weapon, which was recovered from
accused no.1, who has expired. Based on the said evidence, it
is highly unsafe to convict the accused no.3.
13. No any evidence is led by the prosecution about the pre-
consent, in the sense of the distinct previous plan or essential
liability under Section 34. Conscious meeting of the minds or
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participation is also not proved by the prosecution by leading
cogent evidence. Even no sufficient evidence is produced on
record based on which common intention may be inferred or
can be drawn against the accused person based on the proved
facts on record.
14. In view of the above, the prosecution failed to prove the
common intention, hence, no inference can be drawn for
vicarious liability of the present applicant. Hence, either direct
involvement in making an assault or vicarious liability in aid of
Section 34 is made out against the present applicant.
15. As discussed above, the presence of the accused persons
at the house is doubtful. No offence of the trespass is also
made out in the absence of any reliable evidence. The learned
Sessions Judge has not committed any error in extending the
benefit of doubt considering the evidence led by the
prosecution.
16. If two views are possible from the evidence on record,
then whichever view favorable to the accused is required to be
adopted. Considering the fact that the prosecution has to stand
its own leg, and the case is to be proved against the accused
persons beyond all reasonable doubts. No error has been
committed by the learned Sessions Judge.
17. It is a settled principle that while exercising appellate
powers, even if two reasonable conclusions are possible on the
basis of the evidence on record, the Appellate Court should not
disturb the finding of acquittal recorded by the trial Court.
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18. Considering the cardinal principles of Criminal
Jurisprudence until and unless offence is proved by the
prosecution against the accused persons beyond all
reasonable doubt accused is innocent. It appears that,
prosecution is failed to produced or adduced any clinching and
material evidence which is of sterling quality, which connect
the accused persons with the alleged offence.
19. In view of above, learned Sessions Judge has not
committed any error in recording the acquittal and prosecution
and appellant failed to prove the case against the accused
persons beyond all reasonable doubt. Considering the
aforesaid facts and reasons and even going through the
findings of learned trial Court, it appears that the same are
just, legal and proper. Further, learned APP has failed to point
out any palpable error in the reasons assigned by the learned
trial Court, which are manifestly erroneous or unsustainable.
20. In view of the above and in backdrop of the evidence
adduced/produced by the prosecution, material contradictions
which goes to the root of the case of the prosecution are
noticed by the learned trial Court and as the prosecution failed
to prove the case against the accused beyond all reasonable
doubts, learned trial Court has not committed any error in
acquitting the accused.
21. Accordingly, present appeal fails and is hereby
dismissed. The judgment and order of acquittal dated
09.12.1999 passed by learned Sessions Judge, Amreli, in
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Sessions Case No.35 of 1997 stands confirmed. Bail bond, if
any, given by respondent- accused stands discharged. Record
and proceedings be sent back to the concerned trial Court
forthwith.
Sd/-
(HASMUKH D. SUTHAR,J)
Sd/-
(D.N.RAY,J)
R.S. MALEK
