R/CR.A/563/2003 JUDGMENT DATED: 21/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 563 of 2003

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-

and

HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-

================================================================

Approved for Reporting Yes No

✔

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STATE OF GUJARAT

Versus

BHURABHAI DHARAMSHIBHAI SURELA & ORS.

================================================================

Appearance:

MS JYOTI BHATT, APP for the Appellant(s) No. 1

HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No.

1,2,3,4,5,6,7

YAGNESHKUMAR S JOSHI(8074) for the Opponent(s)/Respondent(s) No.

1,2,3,4,5,6,7

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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

and

HONOURABLE MR. JUSTICE VIMAL K. VYAS

Date : 21/02/2026

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE VIMAL K. VYAS)

1.The present appeal preferred under Section 378 of the

Code of Criminal Procedure, 1973, is directed against the

judgment and order of acquittal dated 31.01.2003 passed by the

learned Additional Sessions Judge, Amreli, in Sessions Case

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No.118 of 2000, whereby the learned Sessions Judge acquitted

all the accused persons from the charges levelled against them

for the offences punishable under Sections 302, 324, 504, 147,

148 and 149 of the Indian Penal Code.

PROSECUTION’S VERSION IN NUT-SHELL :

2.1It is the case of the prosecution that the complainant

Popatbhai Gobarbhai Koli had filed a complaint, inter alia,

stating that on 03.06.2000 at around 9 O’clock in the night,

there was an uproar/ruckus in the vicinity, therefore, he came

out of his house, where he saw exchange of words between his

uncle - Kalubhai Manjibhai, his cousin - Naranbhai Savjibhai,

and the accused Bhurabhai Dharamshibhai, Babubhai

Bhurabhai, Bhupatbhai Bhurabhai and Dakubhai Bhurabhai. It

is further the case of the prosecution, as per the complaint, that

the accused persons were quarreling regarding collection of

firewood and hurling abuses, therefore, the complainant had told

them not to utter filthy language.

2.2As per the case of the prosecution, the complainant has

further stated in his complaint that in the alleged incident which

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had occurred on 03.06.2000 at around 9 O’clock in the night,

the accused Babubhai Bhurabhai Koli got agitated and inflicted

Axe blows on the forehead of the complainant, on the right-hand

elbow of his uncle Kalubhai Manjibhai and on the head of

Naranbhai Savjibhai; whereas, the accused Dakubhai Bhurabhai

Koli had inflicted a spear blow on the abdomen of Kalubhai

Manjibhai and the accused Bhupatbhai Bhurabhai had inflicted

a sword blow on the left-hand of Naranbhai Savjibhai. It is

further the case of the prosecution that on hearing the outcry,

the co-accused Kantaben, wife of Bhupatbhai Bhurabhai;

Savitaben, wife of Bhurabhai Dharamshibhai, and Lilyben

Mavjibhai came running out and started pelting stones on the

complainant - Popatbhai Gobarbhai, the injured - Kalubhai

Manjibhai and the deceased - Naranbhai Savjibhai. Thereafter,

Jivtiben Kalubhai, Savitaben Naranbhai, Samjuben and other

ladies saved the complainant and the injured from further

assault by the accused persons.

2.3It is the case of the prosecution that the injured were

rushed to the Government Hospital, Dhari, and thereafter the

complainant (PW-1) Popatbhai Gobarbhai had filed the

complaint before the Dhari Police Station on 03.06.2000. The

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injured Naranbhai Savjibhai Koli succumbed to the injuries

during the treatment at the Junagadh Hospital.

3.On the basis of the complaint, an offence came to be

registered against the respondents-accused for the offences

punishable under Sections 302, 324, 504, 147, 148 and 149 of

the Indian Penal Code vide I-CR No.37 of 2000 registered before

the Dhari Police Station. Thereafter, the investigation

commenced and the Investigating Officer prepared a panchnama

of the place of the incident (Exh.39), inquest panchnama

(Exh.46), arrest panchnama of the respondents-accused

(Exh.40), took the blood samples of the deceased for examination

vide panchnama (Exh.48), muddamal panchnama (Exh.54) and

recorded the statement of the relevant witnesses.

4.After completing the investigation, charge-sheet came to be

filed against the respondents-accused before the learned Judicial

Magistrate, First Class, Dhari, which was registered as Criminal

Case No.562 of 2000. Thereafter, since the case was exclusively

triable by the Sessions Court, the same was committed to the

Court of the learned Additional Sessions Judge, Vadodara, under

Section 209 of the Code of Criminal Procedure, which was

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numbered as the Sessions Case No.118 of 2000. Since the

respondents-accused pleaded innocence, the trial was held.

5.To prove the guilt against the respondents, the prosecution

has examined in all ten witnesses and produced nineteen

documentary evidence, which are as follows :-

WITNESSES

Sr.

No.

Description of the document Exhibit

1Deposition of the Witness No.1 – Popatbhai Gobarbhai 22

2Deposition of the Witness No.2 – Savitaben Naranbhai 25

3Deposition of the Witness No.3 – Dr.Mahmadbhai

Usmanbhai

27

4Deposition of the Witness No.4 – Dr.Pravinbhai Ramji 31

5Deposition of the Witness No.5 – Dr.Sumit Bharatbhai 35

6Deposition of the Witness No.6 – Himmatbhai Somabhai 38

7Deposition of the Witness No.7 – Pratapbhai Nankubhai 53

8Deposition of the Witness No.8 – Kalubhai Manjibhai 55

9Deposition of the Witness No.9 – Udesinh Bhupatbhai 56

10Deposition of the Witness No.10 – Nazabhai Chhanabhai

Chauhan, Investigating Officer

57

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DOCUMENTARY EVIDENCE

Sr.

No.

Description of the document Exhibit

1Complaint by Popatbhai Gobarbhai 23

2Police Yaadi 28

3Death Certificate 29

4Postmortem Note 30

5Medical Certificate of Naran Savji 32

6Medical Certificate of Popatbhai Gobarbhai 33

7Medical Certificate of Kalubhai Manjibhai 34

8Medical Certificate of Naran Savji issued by Junagadh

doctor

36

9Case-papers issued by Junagadh Hospital 37

10Panchnama of the scene of offences 39

11Arrest Panchnama of the Accused 40

12Report submitted to the P.S.O., Dhari, by the P.S.I.,

Dhari, for registration of the offence

45

13Inquest Panchnama 46

14Receipt of handing over dead-body of the deceased

Naranbhai to Savjibhai

47

15Panchnama of blood sample obtained of the deceased

Naranbhai for examination

48

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16Map of the scene of offence prepared by the Circle

Inspector, Taluka Panchayat, Dhari

49

17Receipt of muddamal received by the Chemical Analyzer

along with the counterfoil of the muddamal

50

18Examination Report along with the forwarding letter of

the Chemical Analyzer and the Serological Department

51

19Arrest Panchnama of Daku Bhurabhai and Babu Bhura

as well as the Muddamal Panchnama

54

6.At the end of the trial, after recording the statement of the

accused under Section 313 of the Code of Criminal Procedure

and considering the arguments canvassed on behalf of the

prosecution and the defence, the learned Additional Sessions

Judge, Vadodara, vide judgment and order dated 31.01.2003,

acquitted the respondents-accused from all the charges, by

giving them the benefit of doubt.

7.Being aggrieved and dissatisfied with the aforesaid

judgment and order of acquittal, the appellant-State has

preferred the present appeal.

8.Heard learned APP Ms.Jyoti Bhatt for the appellant-State

and learned advocate Mr.Yagneshkumar S.Joshi for the

respondent-accused.

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9.Learned APP Ms.Bhatt appearing for the appellant-State

has vehemently contended that the impugned judgment and

order passed by the learned Additional Sessions Judge, Amreli,

is against the provisions of law and the learned Sessions Judge

has not properly appreciated the evidence led by the

prosecution. Moreover, on a bare perusal of the provisions of law

itself, it is established that the prosecution has proved the

offence against the respondents-accused by leading cogent

evidence.

10.Learned APP Ms.Bhatt, while taking this Court through the

oral as well as the documentary evidence, has submitted that

the evidence of the complainant (PW-1) Popatbhai Gobarbhai,

who himself is an injured eye-witness, the evidence of the

injured (PW-8) Kalubhai Manjibhai and the eye-witness (PW-2)

Savitaben Naranbhai, clearly establishes the complicity of the

respondents-accused in the alleged offence. Learned APP has

submitted that the evidence of the aforesaid witnesses are duly

corroborated by the medical evidence. Learned APP Ms.Bhatt has

further submitted that the star witnesses, in their respective

evidence, have described the incident minutely and also stated

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the details as to which accused had inflicted how many blows on

which part of their body and with which weapon. Hence, there

remains no doubt about the complicity of the respondents-

accused in the alleged offence. Ms.Bhatt has further submitted

that the evidence of the complainant (PW-1) Popatbhai

Gobarbhai, the injured witness (PW-8) Kalubhai Manjibhai and

the eye-witness (PW-2) Savitaben Naranbhai, if read in

juxtaposition with the medical evidence, it clearly establishes the

fact that the accused persons had inflicted blows with axe, spear

and sword on the complainant (PW-1) Popatbhai Gobarbhai, the

injured eye-witness (PW-8) Kalubhai Manjibhai and the deceased

Naran Savji. Learned APP Ms.Bhatt has, therefore, submitted

that the trial court has given undue importance to the minor

omissions and contradictions in the evidence of the witnesses.

She has, therefore, submitted that there was no reason for the

trial court to disbelieve the case of the prosecution and to acquit

the respondents-accused.

11.At the outset, it is required to be noted that the principles

which would govern and regulate the hearing of appeal by this

Court against an order of acquittal passed by the trial court have

been very succinctly explained by the Supreme Court in a catena

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of decisions. In the case of M.S. Narayana Menon @ Mani vs.

State of Kerala & Anr , reported in (2006) 6 SCC 39, the

Supreme Court has narrated about the powers of the High Court

in appeal against the order of acquittal. In para 54 of the

decision, the Supreme Court has observed as under:

“54.In any event the High Court entertained an appeal

treating to be an appeal against acquittal, it was in fact

exercising the revisional jurisdiction. Even while exercising

an appellate power against a judgement of acquittal, the

High Court should have borne in mind the well-settled

principles of law that where two view are possible, the

appellate court should not interfere with the finding of

acquittal recorded by the court below.”

12.Further, in the case of Chandrappa vs. State of

Karnataka, reported in (2007) 4 SCC 415, the Supreme Court

laid down the following principles:

“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,

reappreciate and reconsider the evidence upon which the

order of acquittal is founded.

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[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 curtain extensive powers

of an appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of ‘flourishes of

language’ to emphasis 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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13.Thus, it is a settled principle that while exercising appellate

power, 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.

14.Even, in the case of State of Goa vs. Sanjay Thakran &

Anr. reported in (2007) 3 SCC 75, the Court has reiterated the

powers of the High Court in such cases. In para 16 of the said

decision the Court has observed as under :

“16.From the aforesaid decisions, it is apparent that 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 judgement 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

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record. A duty is cast upon the appellate court, in such

circumstances, to reappreciate the evidence to arrive to a

just decision on the basis of material placed on record to find

out whether any of the accused is connected with the

commission of the crime he is charged with.”

15.It is also a settled legal position that in acquittal appeal,

the appellate court is not required to re-write the judgement or

to give fresh reasoning, when the reasons assigned by the court

below are found to be just and proper. Such principle is laid

down by the Apex Court in the case of State of Karnataka vs.

Hemareddy, reported in AIR 1981 SC 1417, wherein it is held as

under :

“…..This court has observed in Girija Nandini Devi vs.

Bigendra Nandini Chaudhary (1967)1 SCR 93 : (AIR 1967

SC 1124) that it is not the duty of the appellate court when it

agrees with the view of the trial court on the evidence to

repeat the narration of the evidence or to reiterate the

reasons given by the trial court expression of general

agreement with the reasons given by the Court the decision

of which is under appeal, will ordinarily suffice.”

16.Thus, in case the appellate court agrees with the reasoning

and the opinion given by the lower court, then the discussion of

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evidence is not necessary. Keeping in mind the aforesaid

principles, the Court has to appreciated the evidence on record.

17.We have given our thoughtful consideration to the

judgement and order passed by the trial court. We have also

perused the oral as well as documentary evidence led by the trial

court and also considered the submissions made by learned APP

for the appellant-State. It is settled position of law, as well as the

basic requirement for the prosecution, to prove the case against

the accused beyond reasonable doubt. It is, therefore, expected

that the evidence led by the prosecution must inspire confidence.

While appreciating the oral as well as the documentary evidence,

we found some serious discrepancies and contradictions in the

evidence of the witnesses.

18.Further, considering the Charge at Exh.2 and the original

complaint at Exh.23, the case of the prosecution is that, at the

time of the alleged incident, which had occurred on 03.06.2000

at 9 O’clock in the night regarding collection of firewood, the

accused Babubhai Bhurabhai Koli got agitated and inflicted Axe

blows on the forehead of the complainant (PW-1) Popatbhai

Gobarbhai, on the right-hand elbow of the injured (PW-8)

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Kalubhai Manjibhai and on the head of the deceased Naranbhai

Savjibhai. At the same time, the accused Dakubhai Bhurabhai

Koli had inflicted a spear blow on the abdomen of the injured

Kalubhai Manjibhai and the accused Bhupatbhai Bhurabhai had

inflicted a sword blow on the left-hand of the deceased

Naranbhai Savjibhai. From the aforesaid, it appears that the

complainant (PW-1) Popatbhai Gobarbhai, the injured (PW-8)

Kalubhai Manjibhai and the wife of the deceased (PW-2)

Savitaben Naranbhai, who is also the eye-witness to the

incident, are the star witnesses of the case and, therefore, their

evidence is required to be scrutinized carefully.

19.The complainant (PW-1) Popatbhai Gobarbhai is examined

by the prosecution at Exh.22, who, in his evidence, has

supported the case of the prosecution and stated that at the time

of the alleged incident which had occurred on 03.06.2000 at 9

O’clock in the night, on hearing the uproar/ruckus in the

vicinity, he came out of his house, where he saw the accused

persons quarreling with his uncle - Kalubhai Manjibhai and his

cousin - Naranbhai Savjibhai regarding collection of firewood

and were hurling abuses, therefore, he had told them not to

utter filthy language. The complainant has specifically stated

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that during the scuffle, the accused Babubhai Bhurabhai Koli

got agitated and inflicted Axe blows on his forehead, on the

right-hand elbow of his uncle Kalubhai Manjibhai and on the

head of his cousin - deceased Naranbhai Savjibhai. The

complainant has further stated that at the same time, the

accused Dakubhai Bhurabhai Koli had inflicted a spear blow on

the abdomen of his uncle Kalubhai Manjibhai, whereas the

accused Bhupatbhai Bhurabhai had inflicted a sword blow on

the left-hand of his cousin – deceased Naranbhai Savjibhai. He

has also stated that on hearing the outcry, the other co-accused

Kantaben, wife of Bhupatbhai Bhurabhai; Savitaben, wife of

Bhurabhai Dharamshibhai, and Lilyben Mavjibhai came running

out and started pelting stones on him, his uncle Kalubhai

Manjibhai and his cousin Naranbhai Savjibhai. Thereafter,

Jivtiben Kalubhai, Savitaben Naranbhai, Samjuben and other

ladies saved them and they took them to the hospital for

treatment, and during the treatment, his cousin – Naranbhai

Savjibhai succumbed to the injuries.

20.Considering the aforesaid evidence given by this witness in

his examination-in-chief, it is undoubtedly clear that the

incident had occurred at 9 O’clock in the night. However, this

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witness has stated that at the time of the alleged incident, he

and the accused Bhurabhai Dharamshibhai were having torch

with them, and during the quarrel, the accused Bhura had

placed the torch on the mound and assaulting him, the injured

and the deceased. It is pertinent to note that in the complaint at

Exh.23, there is no mention regarding the torch. During the

cross-examination, it has also been revealed that for the same

incident, cross-complaint was also filed, and regarding the same,

the complainant was also arrested. This witness has also elicited

that in the complaint at Exh.23, there is no mention regarding

the torch, however, he has stated that he had informed about

the same to the police, but it has not been recorded by the police

in the complaint. It is pertinent to note here that the

Investigating Officer (PW-10) Nazabhai Chhanabhai Chauhan, in

his evidence at Exh.57, has specifically stated that the

complainant, in his further statement recorded by him, has not

stated that he and the accused Bhura were having torch with

them at the time of the alleged incident.

21.The prosecution has also examined the eye-witness (PW-2)

Savitaben Naranbhai. This witness is the wife of the deceased

Naranbhai Savjibhai. She, in her examination-in-chief, has

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supported the case of the prosecution and stated that during the

scuffle, the accused Babu Bhura had inflicted Axe blows on on

the forehead of Popatbhai Gobarbhai, on the right-hand elbow of

Kalubhai Manjibhai and on the head of her husband Naranbhai

Savjibhai, due to which, her husband Naranbhai Savjibhai

succumbed to the injuries during the treatment. During her

cross-examination, she has made several contradictory

statements. On one hand, she stated that she had witnessed the

entire incident since the accused Bhura had a torch with him,

which was kept on the mound at the time of the alleged incident,

and the complainant Popatbhai Gobarbhai was also having a

torch with him. However, on the other hand, she has stated that

at the time of the alleged incident, there was a complete dark,

due to which, it was not possible to identify anyone. She has also

elicited that she does not know even as to who inflicted injury

with which weapon to whom and on which part of the body. She

has further elicited that since she was shocked due to the death

of her husband, she was not in a position to give the details to

the police, however, the complainant Popatbhai Gobarbhai had

provided the details to the police and the same were recorded by

the police on her behalf. She has elicited that she does not know

as to who had caused injuries to the complainant Popatbhai

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Gobarbhai and the injured Kalubhai Manjibhai. She has also

elicited that when she reached the place of the incident, her

husband was lying on the ground and was bleeding profusely.

22.Now, in this context, if we consider the evidence of the

injured (PW-8) Kalubhai Manjibhai, it appears that he, in his

evidence at Exh.55, has initially tried to support the case of the

prosecution and stated the same thing as narrated by the

complainant (PW-1) Popatbhai Gobarbhai, however, during his

cross-examination, he has elicited that the incident had

occurred in the night at around 9 O’clock on a public place

where there was no light and it was completely dark. He has

further elicited that during the scuffle, there was stone pelting

from both the sides and, therefore, it could not be ascertained as

to who, from which side, got injured. This witness has further

elicited that at the time of the alleged incident, the complainant

(PW-1) Popatbhai Gobarbhai, the deceased Naranbhai Savjibhai

and the eye-witness (PW-2) Savitben Naranbhai were not having

any torch. He has specifically stated that as the eye-witness

Savitaben Naranbhai had informed them to look about the

deceased Naranbhai Savjibhai, they went there. However, due to

darkness, it was not possible for them to ascertain the injuries

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sustained by the deceased Naranbhai Savjibhai. He has further

elicited that at the time of taking the treatment, he and the

complainant Popatbhai Gobarbhai both had similarly stated

before the doctor that they got injured due to stone pelting by

the accused. It also reveals from the evidence of this witness that

he since they were having doubt that the accused Bhura might

file a complaint against them, therefore, he as well as the

complainant Popatbhai Gobarbhai and the eye-witness (PW-2)

Savitaben Naranbhai had discussed and decided how the

incident to be narrated and the statement to be given before the

police; whose name is to be given; and which weapon & what

role to be attributed to which accused. The injured Kalubhai

Manjibhai has also elicited that since it was complete dark, it

was not at all possible for them to identify anyone, as well as

describe with certainty as to who, with which weapon and on

which part of the body caused injury to whom. It reveals from

the cross-examination of this witness that after their discharge

from the hospital, they all went to their home and ultimately he

as well as the complainant (PW-1) Popatbhai Gobarbhai and the

eye-witness (PW-2) Savitaben Naranbhai had discussed and

decided as to which weapon to be attributed to which accused.

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23.Considering the evidence of this injured eye-witness along

with the evidence of the complainant Popatbhai Gobarbhai and

the eye-witness Savitaben Naranbhai, it clearly appears that

their evidence are contradictory and inconsistent to each other

as well as to the case of the prosecution.

24.On conjoint reading of the evidence of all the aforesaid star

witnesses, it transpires that at the time of the alleged incident,

there was no light and it was a complete dark in the vicinity and

not possible for anybody to identify a person or the weapon. It

also appears that there was a scuffle, and in the said scuffle, the

complainant (PW-1) Popatbhai Gobarbhai, his uncle Kalubhai

Manjibhai and his cousin Naranbhai Savjibhai had sustained

injuries, and during the treatment, Naranbhai Savjibhai

succumbed to the injuries. If the evidence of the star witnesses

is read in juxtaposition, it clearly established that all the

witnesses have improvised their version about having a torch.

Even, the Investigating Officer (PW-10) Nazabhai Chhanabhai

Chauhan, in his evidence at Exh.57, has elicited during cross-

examination that he had recorded the further statement of the

complainant (PW-1) Popatbhai Gobarbhai, wherein, he has

nowhere mentioned that at the time of the alleged incident, he

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was having a torch and the accused Bhura had also placed his

torch on the mound.

25.Considering the aforesaid, there remains no doubt that the

complainant (PW-1) Popatbhai Gobarbhai and the injured

witness (PW-8) Kalubhai Manjibhai have improvised their version

regarding presence of torch at the time of the alleged incident

with a view to establish that they saw the incident in the

torchlight. Furthermore, considering the admission made by the

injured witness - Kalubhai Manjibhai as well as considering the

evidence of the Investigating Officer - Nazabhai Chhanabhai

Chauhan, it clearly established that at the time of the alleged

incident, none of them were having a torch. This cast serious

doubt about the version of the prosecution.

26.The prosecution has also examined the witness (PW-6)

Himmatbhai Somabhai at Exh.38, who is the panch-witness to

the panchnama of the scene of offence as well as the panchnama

of arrest and recovery of weapon. This witness has also not

supported the case of the prosecution and turned hostile.

Similarly, the second panch-witness of the panchnama of arrest

and recovery of the weapon (PW-7) Pratapbhai Nankubhai, who

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is examined at Exh.53, has also not supported the case of the

prosecution and turned hostile.

27.Thus, it appears that all the star witnesses, in their

respective evidence, have tried to support the case of the

prosecution, however, considering the facts revealed in their

cross-examination, the entire case of the prosecution appears to

be doubtful. Even, the trial court, after appreciating the

evidence, has arrived at the same conclusion. Admittedly, the

medical evidence corroborates the injuries sustained by the

deceased as well as the injured witnesses. However, considering

the inconsistencies and material contradictions in the evidence

of the star witnesses, it can certainly be said that, no doubt, the

incident has occurred, but not as per the version of the

prosecution.

28.It is pertinent to note that as per the case of the

prosecution, at the time of the arrest of the accused in presence

of these panch-witnesses, the accused persons had produced

different weapons used in the commission of the offence.

Considering the biological as well serological reports of the FSL

at Exh.51, it clearly established that no blood was found from

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any of the weapons allegedly used in the incident and seized by

the police. Therefore, considering the same, it appears that the

evidence regarding recovery of the weapons allegedly used in the

incident seems to be doubtful since the panchas have not

supported the case of the prosecution. Furthermore, the FSL

report suggests that no blood was found on any of the weapons

seized by the police.

29.Upon careful examination of the judgment of the trial court

at Exh.59, it is evident that even the trial court has observed the

inconsistencies and contradictions in the evidence of the star

witnesses. The trial court, after careful appreciation of the

evidence, has arrived at the conclusion that the evidence of the

complainant (PW-1) Popatbhai Gobarbhai, the injured (PW-8)

Kalubhai Manjibhai and the eye-witness (PW-2) Savitaben

Naranbhai are mutually inconsistent and contradictory with

each other. Furthermore, they have improvised their version

regarding presence of the torch. The trial court has also arrived

at the conclusion that the recovery and the use of weapons

seems to be doubtful as no panchas have supported the recovery

and even the FSL evidence is not in corroboration with the case

of the prosecution.

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CONCLUSION :

30.Upon reassessment of the entire evidence of the

prosecution, this Court is of the opinion that the prosecution has

failed to prove the case beyond reasonable doubt and the learned

APP is not in a position to show any evidence to take a contrary

view of the matter or that the approach of the trial court is

vitiated by some manifest error or illegality or that the decision is

perverse or that the trial court has ignored material evidence

available on record.

31.Before parting with the judgment, it would be apt to refer

to the judgment of the Supreme Court in the case of Mallappa

vs. State Of Karnataka, reported in (2024) 3 SCC 544, wherein

the Supreme Court has observed thus :-

“26.It may be noted that the possibility of two views in a

criminal case is not an extraordinary phenomenon. The two-

views theory has been judicially recognized by the Courts

and it comes into play when the appreciation of evidence

results into two equally plausible views. However, the

controversy is to be resolved in favour of the accused. For,

the very existence of an equally plausible view in favour of

innocence of the accused is in itself a reasonable doubt in

the case of the prosecution. Moreover, it reinforces the

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presumption of innocence. And therefore, when two views

are possible, following the one in favour of innocence of the

accused is the safest course of action….”

32.On the overall appreciation of the evidence as well as

considering the impugned judgment and order, this Court is of

the considered opinion that the findings recorded by the trial

court do not suffer from any perversity or illegality. The findings

recorded by the trial court are absolutely just and proper, and in

recording the same, no illegality or infirmity has been committed

by the trial court. This Court is in complete agreement with the

findings, ultimate conclusion and the resultant order of acquittal

recorded by the trial court. Hence, no interference is warranted.

33.On the facts and in the circumstances of the case, t he

Appeal, therefore, fails, and the same is hereby dismissed.

Records and proceedings be sent back to the concerned trial

court.

(SANGEETA K. VISHEN, J.)

(VIMAL K. VYAS, J.)

/MOINUDDIN

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