Gujarat High Court
Hathising Nagjibhai Mavi vs The State Of Gujarata on 15 July, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/2357/2006 JUDGMENT DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2357 of 2006
With
R/CRIMINAL APPEAL NO. 689 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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HATHISING NAGJIBHAI MAVI
Versus
THE STATE OF GUJARATA
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Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 15/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
Judgment in Criminal Appeal No. 2357 of 2006
1. The present Criminal Appeal is filed by the Appellant –
Org. Accused against the judgment and order of conviction
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dated 07.11.2006 passed by the Ld. Additional Sessions Judge,
Dahod in Sessions Case No. 86/2006, whereby the Ld.
Sessions Judge has convicted the Appellant for the offence
punishable under Section 302 of the Indian Penal Code, 1860,
and has sentenced him to life imprisonment and also imposed
a fine of Rs. 5,000/-, and in default thereof, 6 months rigorous
imprisonment. The Appellant was also convicted for the
offence punishable under Section 323 of the Indian Penal
Code and sentenced to undergo rigorous imprisonment for a
period of six months and imposed a fine of Rs. 500/-, and in
default thereof, one month rigorous imprisonment.
2. Facts shorn of unnecessary details, as they appears from
the record are as follows:-
2.1 That on or about 6:00 PM on March 14, 2003, Kanubhai
Nagjibhai Mavi (stepbrother of the Appellant herein) was
assaulted by several persons who were armed with deadly
weapons. Said assault took place inside the house of the
deceased Kanubhai. The Accused forcibly entered the house
of the deceased Kanubhai. The Accused broke the doors and
roof and also damaged his motorcycle. Kanubhai ran away
from his house wearing a saree and was again assaulted near
a pond, where he was killed.
2.2 Prior to the murder of the said Kanubhai, Lalit was killed,
who happened to be the real brother of Kanubhai and
stepbrother of the Appellant herein. The children of Khetliben
were the accused in that murder case, and the witnesses werePage 2 of 42
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Kanubhai and his family members. To take revenge, Kanubhai
was killed by the children of Khetliben in a premeditated plan
on March 14, 2003. Therefore, the First Information Report
was recorded in Dahod Rural Police Station as CR No. I – 31
of 2003. At the relevant time, three accused were arrested,
namely Sundar Sadevan, Rajesh Hathising, and Savita
Sadevan. A chargesheet was filed, and the said accused were
tried in Sessions Case No. 221 of 2004. The said Sessions
Case was tried by the Ld. Additional Sessions Judge,
predecessor in office, and by the judgment and order dated
09.11.2004, the accused were given the benefit of doubt.
2.3 The chargesheet earlier filed against the aforesaid three
accused in Column No. 2 showed the names of the accused as
“not arrested” and “absconders.” The present Appellant was
arrested on 12.06.2006, and therefore, a supplementary
chargesheet has been filed against the Appellant. Still, Vijay
Hathising, Asian Hathising, Sanuben Hathising, and Sumitra
Sadevan are not arrested and are absconders.
2.4 Initially, three accused persons were arrested namely
(1)Sundarbhai Sahdevanbhai Mavi (2) Rajeshbhai Hathising
Mavi and (3) Savitaben Wife of Sahdevanbhai Nagjibhai Mavi
against whom, Sessions Case was conducted and were
acquited vide judgment and order dated 09.11.2004, where
the present Appellant namely Hathisingh was also accused
but was absconding. The supplementary chargesheet came to
be filed against the present Appellant since, he was arrested
only on 13.03.2006 and Sessions Case No. 86/2006 came to bePage 3 of 42
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registered, wherein, vide Exh. 2 charges are framed on
24.07.2006 and vide Exh. 3 his plea came to be recorded, he
denied the charged and prayed for Trial.
During the trial, the prosecution has relied upon the
following documentary evidences:-
Sr Particulars Exh.
N
o
1 Copy of the Complaint 15
2 Copy of the Inquest Panchanama 9
3 Copy of the Panchanama of place of incident 11
4 Copy of the Panchanama regarding the Seizure of 24
clothes of dead body.
5 Org. Panchnama of Seizure of Accused Hathisingh 23
6 Org. Panchnama of search of Accused Hathisingh
7 Medical Certificate of Deepmala 7
8 Copy of P.M.Note 6
9 Copy of Public Notice of Collector. 31
10 Copy of Yadi regarding the verification of Muddamal 28
Articles fowarded to the Assistant Director.
11 Receipt of Muddamal received by FSL 29
12 Report regarding the testing of Muddamal by FSL 30
13 Report regarding the 14 parcels Muddamal forwarded to 32
FSL as well as copy of Sirology Testing
14 True Copy of the half chargesheet of the Offence being 36
registered as First CR No. 82/2001
15 True Copy of Chargesheet at Exh. 4 in Sessions Case No.
85/2006
The prosecution has also relied upon the oral evidences
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of witnesses which are as follows:-
Sr Name of Witness P.W Exh.
No No.
1 Dr. Ashok Devidas Bachani 1 5
2 Kailashchandra Hukamichand Banarasi 2 8
3 Rupsingh Kidiyabhai 3 10
4 Deepmalaben Kantibhai Katija 4 14
5 Bijliben Kanubhai Nagjibhai 5 16
6 Geetaben Arvindbhai Damor 6 17
7 Chabuben Rajubhai Mavi 7 18
8 Ratnabhai Ranjibhai Bhuriya 8 19
9 Dilipbhai Nagjibhai Mavi 9 21
10 Sukhrambhai Sheniyabhai Mavi 10 22
11 Javsing Siska Mavi 11 25
12 Maheshbhai Pangadbhai Mavi 12 26
13 Gajendra Santilal Vyas 13 27
14 Rakeshkumar Rameshchandra Vasava 14 33
2.5 Ld. Additional Public Prosecutor before the Trial Court
tendered puris closing evidence on 11.10.2006 vide exh. 18
and on 16.10.2006, further statement under Section 313 of
the Criminal Procedure Code, was recorded, however, no
witnesses were examined by the defence and after placing on
record written argument vide Exh. 39, the impugned
judgment convicting the present Accused was passed on
07.11.2006. Hence, the present Appeal.
3. Arguments of Ld. Counsel on behalf of the Appellant :-
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(i) That the Ld. Additional Sessions Judge has committed a
grave error apparent on the face of the record by accepting
the evidence of the prosecution witnesses which are wholly
unreliable.
(ii) It has been proved by the prosecution itself that
Prosecution Witness No. 4, i.e., the daughter of the deceased,
was carrying a full-term pregnancy at the time of the incident,
and under such circumstances, she would not have been able
to run after her deceased father to the place of the incident,
which is almost 1½ KM away, coupled with the fact that the
accused were chasing the deceased’s father. A lady having
full-term pregnancy could hardly walk; hence, the question of
her reaching the place of the incident and witnessing the
incident creates serious doubts in the prosecution’s story.
(iii) That the other so-called star witnesses of the prosecution
are close family members of the deceased, namely, Bijliben
Wd/o the deceased, Chhabuben PW No. 7 – the daughter-in-
law of the deceased, Gitaben – daughter of the deceased PW
No. 6, Sukhram PW No. 10 and Javsingh PW No. 11, who are
also close relatives of the deceased. However, these witnesses
have seen only the first part of the incident. These witnesses
have not seen the second part of the incident according to the
prosecution’s evidence. These witnesses acquired knowledge
of second part of incident from PW No. 4, i.e., the first
informant. Thus, if the evidence of PW No. 4, the first
informant, itself is not inspiring confidence, the question of
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relying on the other witnesses does not arise.
(iv) The prosecution witnesses have not seen the incident
clearly, as the clothes missing from the body of the deceased
remain a mystery in the entire prosecution case, which is not
properly explained. However, the said fact ought to have been
explained by PW No. 9, who stated in his deposition that after
returning home, the deceased removed his clothes and ran
away from the residence wearing a saree. It is also highly
improper that a person would remove his clothes and talk
with anybody when other family members are present, and
that too, nobody would expose himself without any clothes to
an outsider. Therefore, the evidence of PW No. 9 does not
inspire any confidence.
(v) PW No. 4, who alleges to have witnessed the incident, does
not explain the fact that no clothes were found on the dead
body, coupled with the fact that the inquest panchnama at
Exh. 9 confirms the fact that the deceased was found without
any clothes except underwear. As per the evidence of PW No.
5 at Exh. 16, the deceased left the house wearing the saree of
the said witness. The conduct of the deceased is
unexplainable, inasmuch as the deceased, having seen the
arrival of the accused, hid himself in his house, closed the
door, and having assumed that the accused had left the place,
opened the door and was immediately chased by the accused.
Therefore, it is not the prosecution’s case that the deceased
was without clothes when the accused had arrived at the
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home of the deceased, or that the deceased had removed his
clothes while locking himself in the room and put on a saree.
If that is so, the conduct of the deceased was wholly
unnatural. Therefore, the prosecution story does not inspire
any confidence. The witnesses, or so-called star witnesses of
the prosecution, do not unfold the correct story before the
Court. Hence, their depositions should be treated as
unreliable and be discarded.
(vi) The only eyewitness to the incident of murder is the
complainant, i.e., PW No. 4, the daughter of the deceased;
however, it is not proved on record that she is stating correct
facts. It is also required to be noted that the said witness
declined to answer several questions. The said witness
refused, declined, and ignored several questions, such as
those relating to the accused residing in one premises known
as “Dela of the deceased’s grandfather.” However, she also
refused to answer where her father resided and refused to
answer questions regarding the direction of the houses. These
are just a few illustrations. The entire cross-examination of
the said witness clearly shows that she is not truthful,
answering only what suits her and refusing to answer
questions unfavorable to the prosecution. Hence, PW No. 4
does not inspire any confidence, coupled with the fact that she
has not explained the fact that the deceased was found
without any clothes except underwear. The saree alleged to
have been worn by the deceased as per the evidence of PW
No. 5 was also missing from the dead body. These facts
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clearly establish that these witnesses have not seen the
incident with their own eyes. The non-examination of
independent witnesses, though available, and examination of
only interested witnesses whose evidence on the face of it
appears wholly unreliable, shows that the prosecution has not
fairly investigated the offence, placed incorrect facts before
the Hon’ble Court, and failed to bring home the guilt against
the present Appellant beyond reasonable doubt.
(vii) That the Ld. Sessions Judge has committed an error
apparent on the face of the record inasmuch as the Ld. Judge
ought to have appreciated the fact that these very witnesses
were not found to be reliable in the earlier trial. If the
evidence of these witnesses in the earlier trial has not been
relied upon on its own merits, there is no question of placing
any reliance on the evidence of the said witnesses, and
therefore, the conviction recorded by the Ld. Judge is not
sustainable.
(viii) Thus, it is argued that when the three accused persons in
the said incident have been acquitted by the earlier Trial
Judge, the present Accused, having been convicted in a
subsequent trial since he was absconding, should be
acquitted. Hence, Ld. Advocate prays to allow the present
appeal and quash and set aside the judgment and order of
conviction.
4. Arguments of Ld. Additional Public Prosecutor
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(1) That the Trial Court has given a well-reasoned judgment
and order by interpreting the documentary as well as oral
evidence in its true perspective.
(2) That the fact of more than five accused coming to the
place of the incident with weapons, and that too yelling,
clearly establishes the common object of accused persons.
(3) That the fact of the complainant running after her father
and witnessing the entire incident cannot be disbelieved
merely because she was carrying a full-term pregnancy, as
there is nothing on record to suggest that a lady with a full-
term pregnancy cannot run. Merely because the complainant
was pregnant and carrying a pregnancy of almost eight
months, despite this fact, she ran after her father, witnessed
the entire incident, and stated the same before the Court,
coupled with the fact that she herself lodged the complaint
and witnessed the entire incident. It cannot be said that the
prosecution has failed to prove its case beyond reasonable
doubt.
(4) It is further argued that the complainant herself has seen
the entire incident, which took place in two parts: one of
attacking and second of chasing behind her father and
witnessing his murder.
(5) Thus, the number of witnesses are not important, but the
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quality of the deposition before the Court, which have been
relied upon by the Trial Court, does not call for any
interference, and it is therefore argued to reject the present
appeal.
5. Heard Ld. advocates for the respective parties, we have
carefully examined the impugned judgment as well as the
record of the case, more particularly the documentary and
oral evidence on record.
6. In the present case, two different appeals are being
heard by this Court against two sets of accused persons,
Hathising was convicted as he was absconding has preferred
present Criminal Appeal No. 2357 of 2006 and other three
persons who came to be acquitted for the same offence by the
Ld. Trial Court in Sessions Case No. 221 of 2004 against
which, the State has preferred Criminal Appeal No. 689 of
2005.
Hence, at this juncture, it would be profitable to refer
the judgment in the case of A. T. Mydeen vs The Assistant
Commissioner Customs reported in 2021 SCC OnLine SC
1017, where two different criminal appeals were being heard
against two sets of accused, on account of one of them
absconding, and decided against two different judgments
based upon evidence recorded in separate trials, though for
the commission of the same offence, the 3-judge of Apex Court
has held that the High Court fell into an error while passing a
common judgement, based on evidence recorded in only one
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trial, against two sets of accused persons having been
subjected to separate trials. The Apex Court held that the
High Court’s judgment was erroneous and it ought to have
distinctly considered and dealt with the evidence of both the
trials and then to decide the culpability of the accused
persons, the Apex Court said, “The essence of the above
synthesis is that evidence recorded in a criminal trial against
any accused is confined to the culpability of that accused only
and it does not have any bearing upon a co-accused, who has
been tried on the basis of evidence recorded in a separate
trial, though for the commission of the same offence.”
The Apex Court held that the High Court committed an
error of law in dealing with the evidence of one trial for
deciding both the appeals arising out of two separate trials.
Stating that it cannot proceed on presumption and assume
that everything was identical word to word, Apex Court
explained that, “The role of each accused cannot be said to be
the same. The same witnesses could have deposed differently
in different trials against different accused differently
depending upon the complicity or/and culpability of such
accused. All these aspects were to be examined and
scrutinized by the Appellate Court while dealing with both the
appeals separately and the evidence recorded in the
respective trials giving rise to the appeals.”
Thus, this Court will independently assess the evidence
available on record in these two serious cases and arrive at
conclusion.
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7. One of the important eyewitnesses, namely the
complainant Deepmala Kantibhai Khatija, was examined at
Exhibit 14 becomes important. From the examination-in-chief,
it transpires that she has stated that Hathising was holding a
sword in his hand, Rajesh bhai was holding an axe in his hand,
Vijay bhai was holding a Spear, and Asiyen was holding a
stick. Sundar was holding an axe. Savitha and Sumitra were
also holding sticks. Sumitra was also holding a stick in his
hand, and when all these persons came running to their
residence, due to fear, they ran inside the house and closed
the doors. They also tried to forcibly break the door, however,
they could not succeed. Thereafter, they kept silent and were
hiding, due to which her father believed that they had gone
away. Since her father opened the door along with the
persons who were inside the house under this belief, all these
people ran behind her father towards the village lake. All the
other accused also started running till the lake. That her
father was murdered by Hathisingh by hitting him with a
sword, Rajesh bhai by hitting him with an axe on the leg, and
Sundar by hitting him with an axe on the head, whereas Vijay
gave injury to her father on the face with a Spear. Asiyen and
others beat her father with sticks, after which the assailants
ran away. She was also injured by a stick. Thereafter, she
went to bring water. After her arrival with water, her father
had expired. This transpires to be the main witness who has
seen the incident at two places: one at the residence and
second at the lake. On perusing the cross-examination of the
complainant, it transpires that this witness does not answer
the relevant questions with regard to the persons residing
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near the place of the first incident. She also admits that she
was at her parent’s house since she was pregnant and was
carrying nine-months pregnancy. She also admits that when
the crowd rushed, at that time, they were inside the house.
She stated that the lake is one and a half kilometers away
from the residence. She stated that the incident of running
lasted for almost 15 minutes. She also stated that she herself
ran for 15 minutes along with her father. She states that she
does not know whether there are any residential houses near
field (Dungriwala). She does not know whether any criminal
cases were registered against her father. She also does not
know whether her father was a leading member of any
particular political party. She does not know whether there
are a number of residence from their family living in the
village of Nagarala. She also does not know that six cousin
uncles are residing there. She does not know that her father
used to reside in a separate house.However, she denies the
suggestion that it is not true that her father was not residing
separately and was, in fact, residing nearby. She does not
know whether Kaljibai was residing opposite the house where
the incident took place. She does not know whether Fuljibai
was residing near their house. However, she admits that
Fuljibai Mavi resides behind their house. She also admits that
her uncle, namely Lalitbhai, was murdered. In that case,
Sahdevan and Hatisingh Singh are accused, and they are
witnesses in the said complaint. The question, therefore,
which remains to be examined is whether the deposition of
this witness inspires confidence, more particularly, when she
does not know who resides nearby, nor does she know
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whether her uncles reside in the vicinity or not. Also,
considering the fact that she was carrying a full-term
pregnancy, whether she could run for almost one and a half
kilometers, that too, for 15 minutes, it creates serious doubts,
coupled with the fact that from the residence to the place
where the murder took place, no one – that is, no independent
witness has seen the incident occurring. These questions raise
serious doubt with regard to the veracity of the complaint –
present witness alleged to have seen the incident of the
murder of her father. The aspect of enmity cannot be
overlooked while considering the entire deposition of this
witnesses–more particularly when she rushed inside,
including the other witnesses, upon seeing the accused
persons running toward their house. After some time, running
toward the village lake, which is almost 1.5 kilometers from
the residence, and then witnessing the incident, creates
serious doubt. More particularly, when she was carrying full
term pregnancy. The factum of non answering even simple
questions, and on the other hand her narration of the fact of
her father’s murder by the accused persons in a detailed
manner further creates serious doubt about the veracity of
her deposition.
The principle of falsus in uno, falsus in omnibus is not
applied in India, and the Court is expected to separate the
truth from the falsehood.In the present case, we are unable to
separate the chaff from the grain, and in such circumstances,
the benefit of doubt must go in favor of the accused.
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8. From the perusal of the judgment, the Trial Judge has
not considered the entire cross-examination to test the
veracity of similar types of evidence, including that of Bijliben,
who is examined at Exh. 16, Chhabuben, daughter-in-law of
the deceased, examined at Exh. 18, and Dilipbhai Nagji Mavi,
examined at Exh. 21. Thus, it transpires that merely taking a
few lines from the cross-examination does not amount to
proper appreciation of evidence; rather, the entire deposition,
including the cross-examination, is relevant to test the
veracity of the witnesses. As noted herein above, coupled with
the fact that the Investigating Officer, examined vide Exh. 27
as PW 13, Gajendra Shantilal Vyas, has admitted in his cross-
examination that the place where the dead body was found is
one and a half kilometers away from the deceased’s residence
(Kanubhai). This witness also stated that from the place where
the dead body was found, at about 100 feet distance, Mavi
Faliya is located. Despite of murder in broad day light no
independent witness are found having seen the incidence
which was executed in two parts.
9. The Hon’ble Supreme Court in the case of Balaram vs
The State Of Madhya Pradesh (Criminal Appeal No. 2300 of
2009) has held in para 11 as under:-
“11. It is well settled, as laid down in a locus classicus case
of Vedivelu Thevar v. State of Madras, there are three types
of witnesses, which are
(i) wholly reliable,
(ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unereliable. The law
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laid down in Vedivelu Thevar (supra) is consistently followed
by this Court in a catena of judgments. It can thus be seen
that, there are three types of witnesses. If the witness is
wholly reliable, there is no difficulty inasmuch as relying on
even the solitary testimony of such a witness conviction
could be based. Again, there is no difficulty in the case of
wholly unreliable witnesses inasmuch as his/her testimony is
to be totally discarded. It is only in the case of the third
category of witnesses which is partly reliable and partly
unreliable that the Court faces the difficulty. The Court is
required to separate the chaff from the grain to find out the
true genesis of the incident.”
Thus, considering the settled principles of law, it clearly
transpires that the present eyewitness, namely the
complainant, is neither wholly reliable nor wholly unreliable,
as noted above. It is very difficult to separate the chaff from
the grain to ascertain the true genesis of the incidence when
there is previous enmity between the parties.
10. In the judgment of Balram (Supra), the Hon’ble Supreme
Court in Para 17 has observed that previous enmity is doubled
edged weapon on the one hand it provides motive, whereas,
on the other hand, the possibility of false implication cannot
be ruled out.
Having found that there is enmity between the parties
and the witnesses are near relatives, the evidence requires
close scrutiny with great care and caution, and upon such
scrutiny, having found that they are not credible, their
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evidence requires to be discarded. In the present case, the
murder is alleged to have arisen from enmity between
factions, and after dealing with the said witnesses and
conducting a thorough scrutiny, the story disclosed by the
complainant, who is the daughter of the deceased, does not
inspire confidence. Furthermore, having found that she was
carrying a full-term pregnancy, the probability of her running
along with her father for at least one kilometer for fifteen
minutes and witnessing the entire incident of the murder
creates serious doubts.
11. As far as the first part of the incident is concerned,
where the accused person attacks the residence of the
deceased with weapons like spear, swords, sticks, etc., the
Trial Court has found that the incident of attempting to break
open the door, damaging the motor vehicle, and the roof tiles
is not proved. Therefore, the witnesses, except for the
complainant, namely Deepmala, who is alleged to have seen
both the incidents for the reasons stated hereinabove, cannot
be relied upon for convicting the accused. Thus, it transpires
that the Trial Court has not thoroughly scrutinized the
testimony of the related witnesses and arrived at a conclusion
to convict the accused despite doubts regarding their
credibility.
12. It is also required to be noted that Dilipbhai, who has
been examined at Exh. 21 as PW 9, is the brother of the
deceased. He has stated that the deceased, Kanubhai, after
distributing the marriage invitation cards, was seated outside
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his home, having removed his clothes, and was talking with
his wife. However, he does not state in his examination-in-
chief that other persons were also present along with him in
the house and that they went inside. On this aspect, this
witness remains totally silent. He further states that the
distance is about 30 feet away, and since he was having pain
in his leg, he was sitting outside his house. This witness also
states that he witnessed the incident, that the accused
persons started, yelling, and came towards the house of the
deceased, after which deceased went inside the house and
closed the door. The accused persons damaged the bullet
bike, tried to break the door but could not succeed, and then
started breaking the roof tiles. After remaining silent for some
time, Kanubhai thought that the accused had fled away, so he
opened the door while wearing a saree and ran towards the
village lake, and his wife also ran away in a different direction
from the accused. Kanubhai and his daughter ran through
another way, and since Dilipbhai was having leg pain, he
could not run. In cross-examination, this witness states that
when the incident took place, he was sitting near the door of
the residence. He also denied the fact of other houses
between the lake and where he resides.
13. On analysis of the deposition of Bijliben, she also
deposed to the effect that Hatisingh, Rajesh, Sundar, Vijay,
Aeshyan, Sumitra, and Savita had rushed towards their house
shouting, but the door was closed. They tried to break it down
but could not succeed; thereafter, they remained silent. She
further stated that her husband said, “Let me run away,” and
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thereafter, her husband along with her daughter Deepmala
ran away. After that, the accused persons also rushed in, and
she, along with other persons, rushed in the opposite
direction. After some time, they went to the lake where she
found her husband’s dead body, and Deepmala was also
standing there; however, she immediately states that when
she reached the place, she was not there. She also states that
when her husband ran, he was wearing a saree around him,
and she did not see anyone inflicting injury. In her cross-
examination, she stated that the accused persons came
shouting to her place and the entire episode continued for
almost one hour. She also admits that Javsingh was there at
almost 100 meters distance. She further admits that
Deepmala was carrying a full-term pregnancy and had come
to their residence for delivery.
14. On perusal of the deposition of Geeta Ben at Exhibit 17,
PW 6, who is also the daughter of the deceased, she states
that after her father came to his residence after distributing
the marriage invitation cards, at that time, the accused came
with weapons; therefore, they closed the door. The accused
tried to break the door of the house. They remained silent for
some time, and thereafter her father ran; along with her
father, her sister Deepmala ran, while she, Jabu Ben, and Bijli
Ben ran in the opposite direction. She also states who was
holding which weapon. She further states that when her
father ran, he was wearing her mother’s saree. In cross-
examination, she stated that no one from the village had
gathered when the incident took place, nor had anyone else
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accompanied them from the village.
15. On perusal of the deposition of Chhabuben Mavi at
Exhibit 18, she states that while her father-in-law, after
distributing marriage invitation cards, was staying in the
house, at that time Hathising, Sahadevan, Vijay, Sumitra, and
Savita came along with weapons. They started shouting, and
as they were frightened, they closed the door. The accused
tried to break the door for about ten minutes but could not
succeed. Thereafter, they remained silent. The father of the
deceased thought they had fled from the place and therefore
decided to hide nearby. Thereafter, her father-in-law slightly
opened the door and started running towards the lake, with
her daughter Deepmala running behind him. However, she
stated in her cross-examination that after 10-15 minutes, they
reached the place where her father-in-law was bleeding. She
went to the place along with her mother-in-law, Geetaben.
16. On perusal of the deposition of the aforestated
witnesses, all are silent with regard to the fact that no
independent person witnessed the incident, though it is
alleged that the incident took place at 6 o’clock and all the
accused came shouting and rushing towards the house of
Kanubhai. Even the brother of the deceased, who has been
examined at Exh. 21, namely Dilipbhai Mavi, exhibits doubtful
conduct, more particularly because in the examination-in-
chief, he himself states that he was having pain in his leg and,
due to this pain, he could not run. This witness neither shouts
nor raises voice. This conduct of the witness creates serious
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doubt. There is no presence of any independent witnesses
either at the first place of the incident, i.e., the residence of
the deceased or at the lake. None of the independent
witnesses stated that they saw the deceased running along
with Deepmala, with the accused also running behind them,
which is not believable–more particularly when the distance
between the residence of the deceased and the lake is almost
1 to 1.5 km. No one witnessed any person inflicting any injury
to Kanubhai, especially considering the fact that at a distance
of 200 meters, Deepmala (the complainant) went to the house
of Jav Singh Mavi, who gave water to the complainant.
Although the wife of the deceased stated that the incident
continued for almost one hour, still none of the independent
witnesses have witnessed the incidence. The fact that she,
along with others, went to the place where her husband’s
dead body was lying at the lake is stated to be after one hour.
However, the daughter-in-law states that they visited the
place merely ten minutes after running away from the
residence. The fact of the deceased sitting at his residence
with undergarments only and fleeing away by wearing a saree
also does not repose confidence in the story of prosecution.
17. Last but not least, the victim Deepmala was carrying a
full-term pregnancy and still allegedly ran almost a kilometer
along with her father and witnessed the entire incident, which
does not inspire confidence. On close scrutiny of all the
witnesses, serious doubt is created regarding the veracity of
the depositions of the witnesses who are alleged to have
witnessed the first part of the incident, and only Deepmala is
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said to have witnessed the second part of the incident, i.e., the
murder of her father. Under these circumstances, it is not safe
to hold that the prosecution has proved its case beyond
reasonable doubt.
When there is enmity between the parties, witness are
not only related but interested also and considering the
overall facts and circumstances as well as the ocular evidence
and its close scrutiny, we are of the opinion that the judgment
and order passed by the trial court convicting the accused
requires interference at the hands of this Court. Hence, the
following order is passed.
(1) The Appeal is allowed.
(2) The judgment and order of conviction dated 07.11.2006
passed by the Ld. Additional Sessions Judge, Dahod in
Sessions Case No. 86/2006, whereby the Ld. Sessions Judge
has convicted the Appellant for the offence punishable under
Section 302 read with 149, and 323 of the Indian Penal Code,
1860, is hereby reversed and the Appellant is acquitted of
charges by giving benefit of doubt.
(3) The Appellant is reported to be on bail, his bail bond is
discharged.
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Judgment Criminal Appeal No. 689 of 2005
1. The present Criminal Appeal is filed by the State of
Gujarat under the provisions of Section 378(1)(3) of the Code
of Criminal Procedure, 1973 against the judgment and order
of acquittal passed by the Ld. Additional Sessions Judge,
Dahod in Sessions Case No. 221 of 2004 dated 09.11.2004.
2. The facts shorn of unnecessary details as appears from
the record of the case are as follows:-
3. The FIR was registered before the Dahod Rural Police
Station under Sections 302,34,147,148,149,323, read with
Sections 427 of the Indian Penal Code, and Section 135 of the
Gujarat Police Act against the eight accused persons. In the
said FIR, Dipmala alias Kaliben, the daughter of the deceased
Kanubhai, has alleged that because of previous enmity with
the accused persons, the accused persons came at the place
of incident at 6 pm on 14.03.2003. At that time, Hathising was
carrying sword in his hand, Rajeshbhai was carrying Axe,
Vijay was carrying Spear, Sundar was carrying Axe, Savita is
carrying stick and Sumitra was carrying sword in her hand
and all the aforesaid accused came at the residence of the
complainant’s father and due to which the Complainant and
her relatives rushed in the house and closed the doors from
inside. Therefore, all the accused trying to break down the
door of the house however, could not succeed and had also
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pelted stones on the house. It is further alleged that after
sometime, when everyone went silent at that time, father of
the Complainant under the impression that the accused have
left the place, open the door and at that time all the accused
rushed with the weapons and therefore, the father of the
Complainant run away and her mother and sister also trying
to flee away from the place of offence. However, all the
accused have inflicted with their respective weapons on the
body of the father as a result of which, his father died. It is
also alleged that the accused gave blows to the Complainant
due to which she received injury and she treated at Dahod.
4. After investigation, chargesheet came to be filed before
the Ld. Judicial Magistrate First Class, Dahod and the said
case came to be committed under Section 209 of the Criminal
Procedure Code, 1973 before the Ld. Sessions Court,
Panchmahal and Since, new judiciary district was created, the
same came to be transferred to Dahod and thus, the Sessions
Court registered as 194/2003 before the Panchmahal Court
came to be registered as new Sessions Case No. 221/2004
before the Dahod Sessions Court.
5. Ld. Sessions Court vide Exh. 3 framed charges on
16.02.2004 against the present Appellants. Plea came to be
recorded against the present Appellant vide Exh. 4,5 and 5
respectively where they denied the charge and prayed for
trial.
During the trial, the prosecution has relied upon the following
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documentary evidences:-
Sr Particulars Exh.
No
1 Panchnama of Place of offence 9
2 Inquest Panchanama 11
3 Copy of the Panchanama regarding the Seizure of 13
clothes of dead body.
4 Panchnama of discovery of weapon 15
5 Panchnama of Physical Condition as well as seizure 18
of Accused Nos. 1 and 2
6 Panchnama of Physical Condition as well as seizure 19
of Accused Nos. 3
7 Medical Certificate of Deepmala 22
8 Map of place of incident 24
9 Copy of P.M.Note of Deceased Kanubhai 26
10 Copy of Public Notice of Collector. 27
11 Org. Complaint 34
12 Copy of Notice regarding Seizure of Weapon 40
13 Copy of forwarding letter about Muddamal 41
forwarded to the FSL
14 Receipt depcting the muddamal received by FSL 42
15 FSL Report 43
16 Report of Sirology test. 44
The prosecution has also relied upon the oral evidences
of witnesses which are as follows:-
Sr Name of Witness P.W Exh.
No No.
1 Rupsingh Kidiyabhai Buriya 1 8
2 Kailashchandra Hukamichand Banarasi 2 10
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3 Parubhai Suniyabhai 3 12
4 Rameshsingh Ratansingh 4 14
5 Kantibhai lunabhai Arjuniya 5 16
6 Nandabhai Premabhai Gari 6 17
7 Javsinghbhai Rasikabhai Mavi 7 20
8 Dr. babulal Badriprasad Mittal 8 23
9 Dr. Ashok Devidas Bachani 9 25
10 Kalidas Virjibhai Damor 10 28
11 Amarsingh Madubhai Bariya 11 30
12 Deepmala Alias Kaliben Kantibhai 12 33
13 Bijliben Kanubhai 13 36
14 Sabuben Rajubhai 14 37
15 Gajendrakumar Santilal Vyas 15 39
6. Ld. Additional Public Prosecutor vide Exh. 45 tendered
closing pursis closing the evidence and after recording further
statement of the Accused under Section 313 of the CRPC and
hearing the parties passed the impugned order below Exh. 50
by giving benefit of doubt. Hence, the present Appeal against
acquittal is filed.
7. Ld. Additional Public Prosecutor, Mr. L. B. Dabhi for the
Appellant – State, has contended that ……
(1) That the Judgment and order of acquittal passed by the
Ld. Sessions Judge is against the documentary as well as oral
evidence on record.
(2) That the Trial Court has not properly considered the
deposition of the witnesses in its true perspective. The Trial
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Court has not considered the documentary evidence properly.
(3) The Trial Court has ignored the fact which is clearly
established that there is previous enmity between the
Complainant and the Accused and thus, has not considered
the aspect of motive for commission of the present offence
and thus, committed grave error.
(4) That the Ld. Trial Court has not considered the
deposition of Dr. Ashok Devidas Bachani vide Exh. 25 and has
also not considered the PM Note vide Exh. 26 which clearly
establishes that the deceased Kanubhai Nagjibhai expired
because of injuries received on him by the weapons as alleged
by the Complainant.
(5) The Trial Court has wrongly doubted the deposition of
the Circle Officer namely Kalidar Virjibhai Damor recorded at
Exh. 28.
(6) That the Trial Court has ignored the injury received to
the Complainant as deposed by Dr. Babulal Badriprasad Mittal
at Exh. 23.
(7) The Trial Court has also ignored the deposition of the
Complainant namely Dipmala who is the eyewitness and has
seen the incident with her eyes and also received injury.
However, the Ld. Sessions Judge has observed that she has
related and interested witness and thus, not believe her.
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(8) That the Ld. Judge has also wrongly held that there are
contradiction and omission given by the Complainant. The Ld.
Trial Judge has wrongly held that in the present case only
interested and related witness are examined though other
independent witnesses were residing near residence of
complainant and thereby, wrongly doubted the prosecution’s
case.
(9) That the Ld. Trial Court ought to have given proper
weight to the deposition of the independent witness Javsingh
Rasikabhai Mavi exhibited at Exh. 20 who had witness the
entire incident and was residing just 30 feet distance from the
place of incident and thus, has committed grave error.
(10) That the Trial Court has doubted the prosecutions story
and has wrongly questioned as to how Saree came into the
picture and why the deceased Kanubhai was wearing Saree at
the time of incident.
(11) That the Trial Judge has also materially erred in holding
that at the time of incident the Complaint was pregnant. She
was carrying nine months fetus and it is not possible for her to
run at the place of incident of murder which is one kilometer
away from the residence.
(12) That the Trial Court has not believed deposition given by
Sabuben vide Exh. 37 who is also supported the case of the
prosecution, however, the Ld. Trial Judge wrongly discarded
her deposition. Thus, it is argued that the present Appeal be
allowed and accused be held guilty of the offence.
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9. At the outset, it would be appropriate to refer the
judgment of the Hon’ble Supreme Court in the case of Masalti
Vs. State of U.P reported in AIR 1965 SC 202 wherein in para
14 it is held as under:-
“14…There is no doubt that when a criminal Court has to
appreciate evidence given by witnesses who are partisan or
interested, it has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the evidence; whether or
not the evidence strikes the Court as genuine; whether or not the
story disclosed by the evidence is prob- able, are all matters which
must be taken into account. But it would, we think, be
unreasonable to contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of partisan or
interested witnesses. Often enough, where factions prevail in
villages and murders are committed as a result of enmity between
such factions, criminal Courts have to deal with evidence of a
partisan type. The mechanical rejection of such evidence on the sole
ground that it is partisan would invariably lead to failure of
justice.”
The Hon’ble Apex Court in the case of State of Uttar Pradesh
Vs. Kishanpal and others reported in (2008) 16 SCC 73, at
para 18 and 19, has observed as under:-
“18. The plea of defence that it would not be safe to accept
the evidence of the eye witnesses who are the close relatives
of the deceased, has not been accepted by this Court. There
is no such universal rule as to warrant rejection of the
evidence of a witness merely because he/she was related to
or interested in the parties to either side. In such cases, if
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by such witness is found in the light of the surrounding
circumstances and probabilities of the case to be true, it can
provide a good and sound basis for conviction of the
accused. Where it is shown that there is enmity and the
witnesses are near relatives too, the Court has a duty to
scrutinize their evidence with great care, caution and
circumspection and be very careful too in weighing such
evidence. The testimony of related witnesses, if after deep
scrutiny, found to be credible cannot be discarded.
19. It is now well settled that the evidence of witness
cannot be discarded merely on the ground that he is a
related witness, if otherwise the same is found credible. The
witness could be a relative but that does not mean his
statement should be rejected. In such a case, it is the duty of
the Court to be more careful in the matter of scrutiny of
evidence of the interested witness, and if, on such scrutiny it
is found that the evidence on record of such interested
witness is worth credence, the same would not be discarded
merely on the ground that the witness is an interested
witness. Caution is to be applied by the court while
scrutinizing the evidence of the interested witness. ”
8. In the present case, two different appeals are being
heard by this Court against two sets of accused persons,
present Accused persons who came to be acquitted by the Ld.
Trial Court in Sessions Case No. 221 of 2004 against whom
present Criminal Appeal No. 689/2005 is filed and Hathising
was convicted as he was absconding has preferred Criminal
Appeal No. 2357 of 2006..
Hence, at this juncture, it would be profitable to refer to
the judgment in the case of A. T. Mydeen vs The Assistant
Commissioner Customs reported in 2021 SCC Online SC
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1017, “where two different criminal appeals were being heard
against two sets of accused, on account of one of them
absconding, and decided against two different judgments
based upon evidence recorded in separate trials, though for
the commission of the same offence, the 3-judge of the
Hon’ble Apex Court has held that the High Court fell into an
error while passing a common judgment, based on evidence
recorded in only one trial, against two sets of accused persons
having been subjected to separate trials. The Apex Court held
that the High Court’s judgment was erroneous and it ought to
have distinctly considered and dealt with the evidence of both
the trials and then to decide the culpability of the accused
persons, the Apex Court said, “The essence of the above
synthesis is that evidence recorded in a criminal trial against
any accused is confined to the culpability of that accused only
and it does not have any bearing upon a co-accused, who has
been tried on the basis of evidence recorded in a separate
trial, though for the commission of the same offence.” The
Apex Court held that the High Court committed an error of
law in dealing with the evidence of one trial for deciding both
the appeals arising out of two separate trials. Stating that it
cannot proceed on presumption and assume that everything
was identical word to word, Apex Court explained that, “The
role of each accused cannot be said to be the same. The same
witnesses could have deposed differently in different trials
against different accused differently depending upon the
complicity or/and culpability of such accused. All these
aspects were to be examined and scrutinized by the Appellate
Court while dealing with both the appeals separately and the
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evidence recorded in the respective trials giving rise to the
appeals.”
Thus, this Court will re-appreciate the evidence recorded in
the Sessions Case No. 221 of 2004 against the present
Accused.
At this juncture, it would be profitable to refer the judgment
of the Hon’ble Supreme court in the case of Constable 907
Surendra Singh and Another Vs. State of Uttrakhand reported
in (2025) 5 SCC 433, regarding scope of interference in an
Appeal against acquittal in para 11 has held as under
“Recently, in the case of Babu Sahebagouda Rudragoudar and
others v. State of Karnataka, a Bench of this Court to which one of
us was a Member (B.R. Gavai, J.) had an occasion to consider the
legal position with regard to the scope of interference in an appeal
against acquittal. It was observed thus:
“38. First of all, we would like to reiterate the principles laid down
by this Court governing the scope of interference by the High Court
in an appeal filed by the State for challenging acquittal of the
accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v.
State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31]
encapsulated the legal position covering the field after considering
various earlier judgments and held as below : (SCC pp.482-83, para
29) 6 (2024) 8 SCC 149
“29. After referring to a catena of judgments, this Court culled out
the following general principles regarding the powers of the
appellate court while dealing with an appeal against an order of
acquittal in the following words :(Chandrappa case [Chandrappa v.
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State of Karnataka, (2007) 4 SCC 415 :(2007) 2 SCC (Cri) 325] ,
SCC p.432, para 42)
42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re appreciate and
reconsider the evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 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 emphasise 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.
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“40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara
v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748]
this Court summarised the principles governing the exercise of
appellate jurisdiction while dealing with an appeal against acquittal
under Section 378CrPC as follows : (SCC p. 584, para 8)
“8. … 8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal,
is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal,
after reappreciating the evidence, is required to consider whether
the view taken by the trial court is a possible view which could
have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with the order of acquittal
only if it comes to a finding that the only conclusion which can be
recorded on the basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable doubt and no other
conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate court for reversing the judgment of
acquittal recorded by the trial court in favour of the accused has to
be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider
material evidence on record; and
41.3. That no two reasonable views are possible and only the view
consistent with the guilt of the accused is possible from the
evidence available on record.”
Keeping in view the aforesaid principles, the issues
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which requires to be decided as to whether the interference is
required at the hands of this Court in the judgment and order
of acquittal passed by the Ld. Additional and Sessions Judge,
Dahod in Sessions Case No. 221 of 2004, where the parties
are having enmity, are close and interested witness and the
present Appeal arising out of two different judgments based
upon evidence recorded in seperate trials though for the
commission of the same offence.
9. At the first instance, Dipmala who is the complainant
and daughter of deceased Kanubhai Nagjibhai who is alleged
to have witnessed the entire incident i.e., the first episode at
the residence and second episode at the lake where his father
was murdered is required to be considered. It is the case of
the prosecution that she was also injured by the Accused
persons and she was examined by Dr. Babubhai Badriprasad
Mittal, who was examined at Exh. 23 at PW 8.
On perusal of the entire evidence, it transpires that
Dipmala had received injuries on left and right thigh and also
on the back which was simple in nature and were possible
with blunt substance. It is also stated that patient Dipmala
was carrying nine months fetus. She has also stated in the
history that on 14.03.2003 at about 6 o’clock stone pelting
had taken place. That the Doctor has admitted that the lady
carrying full term pregnancy cannot run speedily for quarter
of kilometer. As per the prosecution’s case, Dipmala had
stated that she had received injuries by the inflicting blows
upon her by the accused, however, she states that she
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received injury by stones. Thus, two sets of evidence are
before the Court.
10. It is also required to be noted that the entire incident
took place in two parts. Firstly at the residence of the
deceased where the Complainant Dipmala was present
alongwith other family members and at that time, the accused
came together as unlawful assembly and started rioting and
tried to break the door of deceased’s residence and also
damage Bullet and roof tiles. Thereafter, they kept silent for
some time and Kanubhai had escaped from his residence. The
accused also went behind them and murdered him at lake
which is one kilometer away from the residence. It is the case
of the prosecution that at the time of incident, Kanubhai
alongwith his wife, Bijaliben, pregnant daughter Dipmala who
is complainant, another daughter Gitaben, and Sabuben
daughter in law of deceased (wife of Rajubhai) and other
children were present at the residence and on seeing accused
rushing towards their residence, they closed the door from
inside and thereafter, they kept silent for sometime and
Kanubhai running towards the lake was chased by the
accused and inflicted the blows with respective weapons.
Thus, Dipmala is only present to have witnessed both parts of
incidents. However, first part of incident was witnessed by
daughter of deceased Gitaben, daughter in law, Sabuben and
wife of deceased Bijaliben. It is also required to be noted that
all the witnesses are close relative to the deceased coupled
with the fact that there is previous enmity between the
parties. Since, the Complainant side as well as the accused
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side are the relatives of first and second wife of deceased
Kanubhai coupled with the fact that when the witnesses are
near relatives, their evidence are required close scrutiny with
great care and caution and can be relied only after they form
credibility else requires to be discarded.
11. On close scrutiny of the evidence of the complainant vide
Exh 33 read with the Complaint at Exh. 34, it has came on
record that she has denied the fact that when unlawful
assembly came near their house, they had closed the doors
since, they were of the apprehension that they would start
fighting, however, she on her own volation stated that we all
left the house. She also stated that first she run away from the
house and thereafter, her sister in law and sister, two children
came out of house and his father alone was inside the house
and because his father was frighten that he would be killed,
he closed the door from inside. Thus, in cross examination she
has stated that except his father all the persons from the
house came out. However, on perusal of the complaint, it is
clear that all the persons had locked them inside the house. If
the deposition of other witnesses are taken into consideration
they have also stated that except the deceased all were ran
away from their hose. It clearly transpires that the witnesses
is shifting her statement to suit her convenience. If she was
locked inside, she could not stated as to who were the persons
in the unlawful assembly and which person committed which
act with which weapon could also not be deposed by her.
Thus, in the Complaint she has stated to have been locked
herself inside, while before the Court has stated that except
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her father all the persons were outside the house.
12. It is also the case of the prosecution that, after pelting
stones, they kept silence for some time due to which, his
father was of the believed that they had fled the place and
therefore, he open the door, if that be so the case, the
complainant as well as other family members of the family
could have easily knock the door and informed the deceased
that no accused are present and he may came out or either
can raise alarm that all the accused are still waiting outside so
as not to come outside. This aspect creates serous doubt in
the deposition of Dipmala. This Court is not discussing other
witness who have seen the first part of the incident since all
these witnesses have stated that they ran and came out of
house and the deceased alone was inside the house.
On perusal of cross examination of Bijaliben examined
vide Exh. 36, she has stated to the effect that she have not
seen people coming since, she was frighten, and she ran
away. This witness has been declared hostile. Despite her
cross examination by the prosecution nothing fruitful has
come on record. On perusal of Cross examination of Sabuben
examined vide Exh. 37, she has stated that all accused
rushing towards the house and she ran away alongwith other
and deceased Kanubhai, i.e., his father in law, had locked the
door from inside.
Thus, from the deposition of the above two witnesses,
the fact of first incident is also not proved since, on seeing the
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accused rushing towards their residence, they fled away from
the scene of offence.
13. Kalibhai Virjibhai Damor who had examined at Exh 28
had admitted that on receiving summons of Court on
11.02.2004, he has prepare the map of place of offence. Thus,
the deposition of this witness does not carry forward the case
of prosecution.
14. Babulal Badriprasad Mittal had examined at Exh. 23,
who is the Doctor at the medical Hospital Dahod, and has
examined the Dipmala, daughter of deceased. He clearly
stated in his deposition that she has stated in Hospital that on
14.03.2003 in the 6 o’clock of evening, she was injured by
stone pelting. He also stated that, she was carrying pregnancy
of nine months. On cross examination of this witness, he has
stated that she was admitted as indoor patient because she
was carrying full term pregnancy and having pain in her back
due to which, there were chances of miscarriage. He has also
admitted that a lady carrying full term pregnancy cannot run
speedily for a quarter of kilometer. He has also admitted that
if a person runs, and fells down the injury found on Dipmala
can happen. As per the case of the prosecution, more
particularly, Dipmala ran after his father and has witness the
entire incident coupled with the fact that she was carrying a
full term pregnancy and also considering the deposition of the
Dorctor that a full term pregnant lady cannot be run speedily
for a quarter of kilometer creates serious doubts with regard
to the veracity of the deposition of Dipmala having witness the
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incident of murder of his father.
15. It is also required to be noted that none of the
Panchnamas are proved in accordance with law, more
particularly, panchas not supporting the prosecution and
Investigating Officer not deposing the contents of the
panchnama.
Thus, close scrutiny of all the witnesses, serious doubts
is created with regards to the veracity of the deposition who
have alleged to have witness alleged first part of the incident
and only Dipmala have witness second part of the incident,
that too, also while she was carrying a full term pregnancy
and still said to have run almost a kilometer alongwith her
father and witness the entire incident coupled with the fact
that there is enmity between the parties and thus, on close
scrutiny, it does not inspire confidence. It is also required to
be noted that previous enmity between parties is doubled
edged weapon, on the one hand it provides motive, whereas,
on the other hand, the possibility of false implication cannot
be ruled out. Thus, when the witnesses are close relatives and
it is found that the witness are neither wholly reliable nor
wholly unreliable and it is difficult to to separate the chaff
from the grain to ascertain the true genesis of incident
coupled with the fact that when there are two views possible,
this Court in appeal cannot interfere with the judgment and
order of acquittal passed by the Trial Court for the reasons
discussed herein above,
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16. In view of the aforesaid facts and circumstances, and on
re-appreciation of entire evidence on record, when two views
are possible, no interference is required at the hands of this
Court. Thus, the judgment and order passed by the Ld.
Additional Sessions Judge, Dahod on 09.11.2004 acquitting
the accused persons is upheld. The present Appeal is hereby,
rejected.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
MMP
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