Oral Judgment

Hemant M. Prachchhak, J.

1. The appellant - original complainant has preferred this appeal under Section 372 of the Code of Criminal Procedure, 1973 against the judgment and order dated 05.10.1998 passed by the learned 3 rd Sessions Judge, Rajkot (hereinafter be referred to as "the trial Court") in Sessions Case No. 111 of 1994, whereby the trial Court has acquitted the original accused (respondents herein) from the offences punishable under Sections 143, 144, 148, 324, 326, 149, 302, 449 etc of the Indian Penal Code [hereinafter be referred to as "the IPC"] and under Section 135 of the Bombay Police Act.

2. Short facts of the prosecution case are that on 10.03.1994 at about 6.00 pm to 6.30 pm, the accused gathered and formed unlawful assembly and thereby tried to make assault on Raghavbhai Khengarbhai Bharwad and then accused caused the injury to one Girishbhai Laljibhai Kadiya who was friend of Raghavbhai and, thereafter they went behind the original Raghavbhai and Girishbhai wherein they made assault on one Matubhai who was standing outside of his house and as the injured Raghavbhai and Girishbhai went inside the house of Matubhai and caused knife blow to Matubhai and inside his house the accused had also caused his sister Jamnaben by their respective weapons. It is alleged that Matubhai sustained injury and succumbed to the injury and said Raghavbhai, Girishbhai and Jamnaben sustained injury, due to which, they were taken to the Rajkot Civil Hospital. Hence, a complaint being C.R. No.I-100/2009 was lodged by the complainant before Talaja Police Station for the aforesaid offences. The police prepared panchnama of the scene of offence and after preparing the arrest panchnama, the accused came to be arrested. On completion of investigation, the charge sheet was submitted in the Court of learned J.M.F.C.

          2.1 The charge against the accused came to be framed by the trial Court vide Exhibit 1 for the aforesaid offences against the accused. On being explained it to them, the accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Additional Sessions Judge.

3. It appears from the records that to prove the case, the prosecution has examined the following witnesses



4. In addition to this, the prosecution has also produced the following documentary evidence.







5. After closure of the evidence, the statements of the accused under section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied of having committed any offence and have stated that they are innocent.

6. After hearing both sides and considering the evidence on records, the trial Court by impugned judgment and order has acquitted the accused from all the charges levelled against them.

7. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant - complainant has preferred this appeal.

8. Heard Ms.Jyoti Bhatt, Additional Public Prosecutor for the appellant - State of Gujarat and Mr.Yatin Soni, learned counsel for the respondents - accused at length.

9. Learned Additional Public Prosecutor appearing for the appellant - State of Gujarat has submitted the same facts which are narrated in the memo of appeal and has also submitted that the prosecution has examined witnesses and produced documentary evidence, despite this fact, the trial Court has not considered the same in its true and proper perspective in passing the judgment and order of acquittal. Learned Additional Public Prosecutor, while referring to the entire oral as well as documentary evidence, has assailed the impugned judgment and order and submitted that the trial Court has not taken into consideration the evidence connecting the accused to the alleged offence in its proper perspective and even the prosecution has been able to prove the charges levelled against the accused. While referring to the evidence of the witnesses and the material collected against the accused, learned Additional Public Prosecutor has submitted that the prosecution has established the case against the accused by examining the witnesses, who have supported the case of the prosecution, however, the trial Court has discarded and disbelieved the evidence of these witnesses. Learned Additional Public Prosecutor has submitted that the witnesses have fully supported the case of the prosecution, however, the trial Court has not appreciated the same and passed the judgment and order of acquittal which is illegal and unjust. Learned Additional Public Prosecutor has submitted that it is settled legal position that the evidence of a single witness is sufficient for conviction if the same is reliable and trustworthy and in the present case, though the evidence of all the witnesses are reliable and trustworthy, without any cogent reason, the trial Court has disbelieved and discarded the evidence of the witnesses.

          9.1 Learned Additional Public Prosecutor has further submitted that the impugned judgment of acquittal is contrary to the evidence on record, based on erroneous appreciation of material evidence, and has resulted in a miscarriage of justice and the findings recorded by the learned Trial Court are perverse and unsustainable in law, thereby calling for interference by this Court in the exercise of its appellate jurisdiction. Learned Additional Public Prosecutor has also submitted that the learned Trial Court has materially erred in holding that the prosecution has failed to prove its case beyond reasonable doubt and the findings recorded by the trial Court were therefore perverse, illegal, and contrary to the evidence on record.

          9.2 Learned Additional Public Prosecutor for the appellant has submitted that the trial Court has wrongly come to the conclusion that accused have not committed any offence as alleged. Learned Additional Public Prosecutor has also submitted that the accused have formed unlawful assembly with clear intention to commit murder of the deceased as he was a Sarpanch before five years of incident and there was a dispute regarding the plot of land which was unauthorizedly occupied by the respondents and therefore there was an enmity between the accused and the deceased. Learned Additional Public Prosecutor has submitted that the sister of accused No.7 was having love affairs with Raghav Khengar and it was disliked to accused No.7 and hence they formed unlawful assembly with an intention to commit murder of deceased Matubhai. Learned Additional Public Prosecutor has submitted that so far as accused No.1 to 5 were concerned, witness Dilipbhai has supported the case of the prosecution and he deposed in his deposition that accused No.1 to 5 and one rickshaw driver were quarreling with Raghav Khengar and accused tried to assault on him. Learned Additional Public Prosecutor has further submitted that there is no reason to disbelieve the evidence of injured witnesses which establishes the presence of injured witness and there is no omissions or contradictions in their evidence and despite this fact, the trial Court has given undue importance to the minor omissions and contradictions in the evidence of the prosecution witnesses.

          9.3 According to learned Additional Public Prosecutor, the trial Court ought to have convicted the accused and ought to have imposed necessary sentence. Learned Additional Public Prosecutor has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal.

10. Per contra, learned counsel for the respondents - accused has supported the impugned judgment and order and has submitted that the trial Court has not committed any error of law and fact in acquitting the accused from the charges levelled against them. Learned counsel for the respondents - accused has submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and, therefore, the trial Court has rightly acquitted the accused as the complainant has failed to prove the charge levelled against the accused. Learned counsel for the respondents has also submitted that there is no iota of evidence to connect the accused with the alleged crime in question. Learned counsel for the respondents has submitted that the evidence led by the prosecution suffers from material contradictions, omissions, and inconsistencies, which create serious doubt about the veracity of the prosecution case and the prosecution has failed to establish the essential ingredients of the alleged offences and has not produced reliable, trustworthy, and corroborative evidence connecting the respondent with the commission of the alleged offence. Learned counsel for the respondents has submitted that it is a settled principle of criminal jurisprudence that the presumption of innocence in favour of an accused is further strengthened by an order of acquittal. It is submitted that unless the findings recorded by the trial Court are shown to be perverse, illegal, or contrary to the evidence on record, the Appellate Court should be slow in interfering with an order of acquittal. It is submitted that the appellant has failed to point out any infirmity, illegality, perversity, or misreading of evidence in the impugned judgment and order and the findings recorded by the learned trial Court are based upon proper appreciation of the evidence and settled legal principles. Learned counsel for the respondents has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order of acquittal deserves to be confirmed.

11. On perusal of the impugned judgment and order of acquittal passed by the trial Court, the questions arise for determination are as under:-

(1) whether the trial Court has rightly justified in passing the judgment and order of  acquittal.

          (2) whether the trial Court has rightly appreciated the evidence led by the prosecution in recording the reasons.

          (3) whether there is any illegality, irregularity and perversity in the impugned judgment and order of acquittal.

12. First, we examine the facts of the case. On 10.03.1994, between 6.00 p.m. and 6.30 p.m., the accused allegedly assembled and formed an unlawful assembly. They attempted to assault Raghavbhai Khengarbhai Bharwad and caused injuries to Girishbhai Laljibhai Kadiya, who was a friend of Raghavbhai. Thereafter, they chased Raghavbhai and Girishbhai, who entered the house of Matubhai. The accused allegedly followed them into the house, assaulted Matubhai, who was standing outside his house repairing his car, inflicted knife injuries upon him, and also caused injuries to his sister, Jamnaben, with their respective weapons. Thus, the accused were charged with offences punishable under Sections 143, 144, 148, 324, 326, 149, 302, and 499 of the Indian Penal Code, as well as Section 135 of the Bombay Police Act. It appears from the record that, in order to prove its case, the prosecution examined twenty-one witnesses, including doctors, injured witnesses, and four police witnesses.

13. Upon perusal of the evidence of P.W.1, Girishbhai Laljibhai Kadiya (Exhibit 14), who was examined as an eyewitness to the incident, and P.W.2, Raghavbhai Khengarbhai Bharwad (Exhibit 15), it appears that both witnesses stated that they were assaulted by the accused with their respective weapons. As per the FIR, the incident commenced with the assault on P.W.2. However, although P.W.2 sustained injuries, he did not support the case of the prosecution. On perusal of his cross-examination, it reveals that the prosecution failed to bring on record any incriminating or clinching evidence against the accused.

14. As regards the evidence of P.W.3, Dilipbhai Somabhai Koli, the injured eyewitness (Exhibit 16), he supported the case of prosecution only against respondent Nos. 1 to 5 and did not support the case against respondent Nos. 6 and 7. Consequently, he was declared hostile. On perusal of his cross-examination, further it reveals that no clinching evidence was brought on record by the prosecution against the accused.

15. With regard to P.W.8, Jayantibhai Matubhai Handa (Exhibit 28), the son of the deceased Matubhai, he was not an eyewitness to the incident. He did not witness the assault on the deceased because, at the relevant time, he was taking a bath in the washroom inside the house while the deceased was assaulted outside. The wife of the deceased, who was an eyewitness to the incident, was not examined by the prosecution. This omission creates serious doubt regarding the case of the prosecution. Therefore, the trial Court rightly extended the benefit of doubt to the accused.

16. Upon perusal of the evidence of P.W.9, Jamnaben Somabhai (Exhibit 30), an eyewitness and the sister of the deceased Matubhai, it appears that she specifically deposed that the injured Raghavbhai and Girishbhai entered the house, and the accused followed them inside. She further stated that when she attempted to intervene, she sustained injuries from stick blows. She also deposed that the wife of the deceased was present at the time of the incident and that both women raised cries and screams during the occurrence.

17. A perusal of the medical report relating to Jamnaben indicates that it does not support the prosecution's case as projected through her testimony. Upon considering the evidence of the medical officers, namely P.W.4, P.W.5, P.W.6, and P.W.7, it is evident that the prosecution succeeded in proving that the deceased Matubhai died due to the injuries sustained and that his death was homicidal. However, the prosecution failed to prove beyond reasonable doubt that the offence amounted to murder.

18. Upon perusal of the evidence of P.W.10, P.W.11, P.W.12, P.W.13, P.W.14, P.W.15, P.W.16, and P.W.17, it appears that these witnesses were panch witnesses who did not support the prosecution's case and were declared hostile. On perusal of their cross-examinations, it does not reveal any clinching evidence in support of the case of the prosecution. Although it is well settled that a panchnama may be proved through the evidence of the Investigating Officer even if the panch witnesses do not support the prosecution, the facts of the present case indicate otherwise. The injured witnesses themselves did not support the prosecution and gave versions contrary to their earlier statements. The trial Court, in paragraph 75 of its judgment, observed that the evidence of P.W.18, Anilbhai Dudabhai Parmar (Exhibit 49), completely demolished the prosecution's case and further observed that the prosecution had suppressed the genesis of the crime and had not approached the Court with clean hands. After considering the evidence and the facts of the case, the trial Court, from paragraph 81 onwards, assigned detailed reasons for disbelieving the prosecution's case and granting the benefit of doubt to the accused. Upon perusal of the impugned judgment and order, as well as the depositions of the witnesses, it appears that there was every likelihood that the prosecution had falsely implicated the accused. It is pertinent to note that there existed longstanding animosity between the two groups, and there was every possibility of false implication on account of such rivalry. Therefore, the trial Court rightly disbelieved and discarded the evidence of the prosecution witnesses. Although the case involves the serious allegation of causing the death of Matubhai and inflicting injuries upon Raghavbhai and Jamnaben, the prosecution failed to establish its case as the injured witnesses did not support the prosecution. Moreover, the prosecution failed to examine the most material witness, namely the wife of the deceased Matubhai and the mother of P.W.8. The brothers of P.W.8, namely Rameshbhai and Bharatbhai, who had reached the place of occurrence shortly thereafter, were also not examined. Likewise, Dudhiben, the mother of P.W.8, was not examined. In these circumstances, it appears that the prosecution did not approach the trial Court with clean hands and failed to place all the relevant facts before it. Upon appreciation of the entire evidence, the trial Court rightly granted the benefit of doubt to the accused. There are also material discrepancies regarding the time of the incident. P.W.9 initially stated that the incident occurred between 4.00 p.m. and 4.30 p.m. However, in her subsequent statement, she stated that it was around 7.00 p.m. when the injured Dilipbhai Somabhai entered the house while running in an injured condition. She further deposed that the streetlights were switched on when the injured entered the house. P.W.9 specifically named only Prabhat Merambhai and Vaja Kanabhai and did not disclose the names of the remaining accused. This also lends support to the possibility that, owing to the animosity between the two groups and the fact that the deceased had previously served as the Sarpanch of the village, the remaining accused may have been falsely implicated. She herself admitted that the other accused were not known to her. Despite this, the prosecution failed to conduct any Test Identification Parade (T.I. Parade) for the identification of the accused. In view of the evidence adduced by the prosecution and the circumstances of the case, the trial Court rightly passed the impugned judgment and order of acquittal. We are, therefore, of the considered opinion that the trial Court did not commit any error of fact or law in passing the impugned judgment and order. No illegality or infirmity is found in the judgment warranting interference.

19. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial Court.

20. Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused are connected with the commission of the crime with which they are charged.

21. The scope and principles are enunciated by the Hon'ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraph Nos. 42 and 43, which was subsequently re-affirmed by the Hon'ble Apex Court in the case of Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph No. 26 the general principles are set out by the Hon'ble Apex Court based upon various decisions of the Hon'ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, we are in complete agreement with the findings recorded by the trial Court.

22. It is also worthwhile to refer to the recent decision of the Hon'ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble Supreme Court has held and observed in paras-20 and 21 as under:-

          "20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:

          "42. .... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

          (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

          (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

          (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

          (5) 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.

          21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."

23. So far as section 113 of Evidence Act is concerned, it is also appropriate to refer the decision of this Court in cases of State Of Gujarat Versus Ashvinbhai Naginbhai Tandel reported in 2025 (0) GUJHC 20677, State Of Gujarat Versus Bhaveshbhai Manilalbhai Patel reported in 2025 (2) GLR 923, State Of Gujarat Versus Haji Haroon Meman reported in 2026 (0) GUJHC 7002 as well as the decisions of the Hon'ble Apex Court in the cases of Ramesh Kumar Versus State Of Chhattisgarh reported in 2001 (9) SCC 618 and Ram Pyarey Versus State Of Uttar Pradesh reported in 2025 (6) SCC 820. Even, so far as the statutory presumption under Sections 113A and 113B of the Indian Evidence Act is concerned, the Hon'ble Supreme Court has recently held that before such a presumption can be drawn, there must be at least some cogent material or evidence giving rise to an inference against the accused. In the absence of even the slightest evidence on record from which such an inference can reasonably be drawn against the respondents regarding the commission of the alleged offences, the statutory presumption cannot be invoked.

24. Considering the entire evidence on record, it clearly appears that there is no credible evidence to connect the present accused with the alleged crime and the evidence on record is not so convincing to prove beyond reasonable doubt that the accused has committed the alleged crime. Therefore, the accused cannot be convicted on the evidence on record.

25. On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges levelled against them. Even on re- appreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed.

26. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order of acquittal passed by the trial Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.