Gujarat High Court
State Of Gujarat vs Gulabsing Chandansing Majbi on 27 March, 2026
NEUTRAL CITATION
R/CR.A/946/1998 JUDGMENT DATED: 27/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 946 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO: Sd/-
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER: Sd/-
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Approved for Reporting Yes
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STATE OF GUJARAT
Versus
GULABSING CHANDANSING MAJBI
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Appearance:
MR. PRANAV DHAGAT, APP for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 27/03/2026
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. The appeal is filed by the appellant State under
Section 378 of the Code of Criminal Procedure, 1973 against
the judgement and order of acquittal passed by the learned
Additional Sessions Judge, Ahmedabad (Rural) at
Gandhinagar (hereinafter referred to as “the learned Trial
Court”) in Sessions Case No. 12/1997 on 12.08.1998,
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whereby, the learned Trial Court has acquitted the
respondent for the offence punishable under Sections 302 of
Indian Penal Code, 1860.
1.1 The respondent is hereinafter referred to as “the
accused” as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 On 07.01.1997, the accused was working as a cleaner
on truck no. PB-13-B-9031 and the driver of the truck was
Balwindersinh alias Takasinh Pratapsinh. The truck came
to Hotel Mohan situated at Adalaj Crossroads at around
02.30 hours and as there was a puncture in the tyre of the
truck, a dispute arose between the driver and the accused
at around 02.50 hours. The accused took the wrench and
assaulted the driver – Balwindersinh with the wrench on
the head and as the driver was injured, he threw the wrench
and fled from the place of offence. The driver of truck
number PB-13-E-4100 and other persons who were working
at Hotel Mohan, ran and caught the accused and brought
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him to Hotel Mohan and telephoned the police who came
and took the driver Balwindersinh to Civil Hospital,
Gandhinagar for treatment. The driver expired during
treatment and the offence was registered by Surendrasinh
Dhanisinh Saini, a resident of Chandkheda who was sitting
at Hotel Mohan which belonged to his brother-in-law at the
time of the incident and the same was registered under
Section 302 of the Indian Penal Code, 1860 at Adalaj Police
Station, I – C.R. No. 9 of 1997.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Court of the Judicial
Magistrate First Class, Gandhinagar and as the said
offences against the accused were exclusively triable by the
Court of Sessions, the case was committed to the Sessions
Court, Gandhinagar as per the provisions of Section 209 of
Code of Criminal Procedure and the case was registered as
Sessions Case No. 12/1997.
2.3 The accused was duly served with the summons and
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the accused appeared before the learned Trial Court and it
was verified whether the copies of all the police papers were
provided to the accused as per the provisions of Section 207
of the Code. A charge at Exh. 4 was framed against the
accused and the statement of the accused was recorded at
Exh. 5, wherein, the accused denied the contents of the
charge and the entire evidence of the prosecution was taken
on record.
2.4 The prosecution examined 15 witnesses and produced
13 documentary evidences on record in support of their
case and after the learned APP filed the closing pursis, the
further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 was recorded, wherein,
the accused denied all the evidence of the prosecution on
record. The accused refused to step into the witness box or
examine witnesses on his behalf and stated that a false case
has been filed against him. After the arguments of the
learned APP and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit the accused from the
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charges levelled against him.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant – State has
filed the present appeal mainly stating that the impugned
judgment and order of acquittal passed by the learned Trial
Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the fact that all the
witnesses have supported the case of the prosecution and
during the cross-examination, nothing adverse has been
elicited in favor of the respondent. The case has been proved
beyond reasonable doubt and the prosecution has
successfully established the case against the respondent
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the law and the
reasons stated while acquitting the respondent are
improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
4. Heard learned APP Mr. Pranav Dhagat for the
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appellant State. Though served, the respondent has not
remained present either in person or through an advocate.
Perused the impugned judgement and order of acquittal and
have reappreciated the entire evidence of the prosecution on
record of the case.
5. Learned APP Mr. Pranav Dhagat has taken this court
through the entire evidence of the prosecution on record
and has submitted that there are eyewitnesses to the
incident who have supported the case of the prosecution
and the complainant has also supported the case of the
prosecution. The accused was caught by the eyewitnesses
who ran and caught the accused and brought him to Hotel
Mohan and there is ample evidence that the accused had
committed the offence and has assaulted the driver
Balwindersinh on the head with the wrench and caused his
death. The offence under Section 302 of the Indian Penal
Code, 1860 is proved by the prosecution by oral and
documentary evidences but the learned Trial Court has not
appreciated the same in proper perspective and hence, the
impugned judgment and order of acquittal must be set aside
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and the accused must be found guilty for the said offences.
6. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court with regard to the powers of
the Appellate Court in acquittal appeals as observed in the
case of P. Somaraju Vs. State of Andhra Pradesh reported
in 2025 LawSuit (SC) 1423, in paras 11 and 12 which is
reproduced as under:
11. Before proceeding, it would be appropriate to recapitulate the
well-settled principles governing interference with an order of
acquittal by an Appellate Court, which were also discussed by
the High Court in the impugned judgment. At the outset, we rely
upon the seminal case of Chandrappa & Ors. vs. State of
Karnataka 2007 (4) SCC 415 wherein this Court had laid down
the five-point canonical test as follows:
“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.
(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 ownPage 7 of 30
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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.” 4 (2007)
4 SCC 415.
12. To summarize, an Appellate Court undoubtedly has full
power to review and reappreciate evidence in an appeal against
acquittal under Section 378 and 386 of the Code of Criminal
Procedure, 1973. However, due to the reinforced or ‘double’
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presumption of innocence after acquittal, interference must be
limited. If two reasonable views are possible on the basis of the
record, the acquittal should not be disturbed. Judicial intervention
is only warranted where the Trial Court’s view is perverse, based
on misreading or ignoring material evidence, or results in
manifest miscarriage of justice. Moreover, the Appellate Court
must address the reasons given by the Trial Court for acquittal
before reversing it and assigning its own. A catena of the recent
judgements of this Court has more firmly entrenched this
position, including, inter alia, Mallappa & Ors. vs. State of
Karnataka, 2024 INSC 104, Ballu @ Balram @ Balmukund & Anr.
vs. The State of Madhya Pradesh 2024 INSC 258, Babu
Sahebagauda Rudragaudar and Ors. vs. State of Karnataka
2024 INSC 320 and Constable 907 Surendra Singh & Anr. vs.
State of Uttarakhand 2025 INSC 114.
6.1 The Apex Court, in the case of Surendra Singh and
Ors. Vs. State of Uttarakhand reported in 2025 INSC 114,
has observed in Para No. 11 as under:
11. Recently, in the case of Babu Sahebagouda Rudragoudar and
others v. State of Karnataka6, 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]Page 9 of 30
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encapsulated the legal position covering the field after considering
various earlier judgments and held as below : (SCC pp. 482-83,
para 29)
“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. 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, reappreciate
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
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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.”
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
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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.”
7. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation
that no interference has to be made in the order of acquittal
unless after appreciation of the evidence produced before
the learned Trial Court, it appears that there are some
manifest illegality or perversity which could not have been
possibly arrived at by the Court. It is also a settled principle
that there is no embargo on the Appellate Court to review
the evidence but, generally the order of acquittal shall not
be interfered with as the presumption of innocence of the
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accused is further strengthened by the order of acquittal.
The golden thread which runs through the web of
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case of
the prosecution i.e. (i) guilt of the accused and (ii) his
innocence, the view, which is in favour of the accused,
should be adopted, and if the trial Court has taken the view
in favour of the accused, the Appellate Court should not
disturb the findings of the acquittal. The Appellate Court
can interfere with the judgment and order of acquittal only
when there are compelling and substantial reasons and the
order is clearly unreasonable and where the Appellate
Court comes to conclusion that based on the evidence, the
conviction is a must.
8. In light of the above the settled principles law the
evidence of the prosecution is dissected and the
prosecution has examined PW1 – Dr. Shashank
Baswantrao Simpi at Exh. 8 who is the Medical Officer who
has performed the postmortem on the dead body of
deceased Balwinder Pratapsinh alias Kakasinh on
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07.01.1997 between 09.45 am and 10.30 am. The witness
has stated that as per Column No. 17 of the postmortem
note, the following injuries were found on the dead body of
the deceased.
1. CLW 2 x 0.5 cm just above the right eyebrow bone
deep.
2. CLW 5 x 3 cm. 1 cm above the left eyebrow bone
deep.
3. Lacerated wound 5 x 1 cm penetrating the parietal
and exposing the brain matter.
4. Swelling 5 x 4 cm over the right temporal region.
5. CLW 3 x 1 cm. 2 cm above the right temporal region
bone deep.
6. On external examination a fracture of the left
frontal bone and a fracture of the right parietal bone
was found.
7. Fracture on the right parietal bone.
All these injuries were antemortem and the cause of
death in the opinion of the Medical Officer was due to shock
and hemorrhage as a result of severe fatal head injury
which could be possible by a blunt weapon. The witness
has produced the postmortem note at Exh. 10 and the
cause of death certificate at Exh. 9. In the cross-
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examination by the learned advocate for the accused, the
witness has stated that he alone had conducted the
postmortem and no blood was flowing from any part of the
body but there were blood marks on the head and on the
turban on the head of the deceased. The shirt of the
deceased also had blood stains and besides the injury on
the head, there were no other internal injuries. The injury
could be sustained if a person had a fall from a height and
dashed his head against a stone. Injury no. 3 was a
transverse injury and if a person has a fall from a height
and hits his head against a sharp plate like item, he could
sustain injury no. 3.
8.1 PW2 – Hemendra Natwarlal Barot examined at Exh. 11
and PW3 – Navinchandra Keshavlal Patel examined at Exh.
13 are the panch witnesses of the panchnama of the place
of offence which is produced at Exh. 12. Both the panch
witnesses have not supported the case of the prosecution
and have stated that the police had merely asked them to
affix their signature in a panchnama which was ready and
they have no knowledge about any details of the
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panchnama.
8.2 PW4 – Dipakbhai Kantilal Patel examined at Exh. 14
and PW6 – Mahendrabhai Dahyabhai Patel examined at
Exh. 17 are the panch witnesses of the panchnama by
which the clothes of the accused were seized but both the
witnesses have not supported the case of the prosecution
and have denied the contents of the panchnama produced
at Exh. 15. In the cross-examination by the learned APP,
nothing to support the case of the prosecution has come on
record.
8.3 PW5 – Jalamsing Girdharising Rajput examined at
Exh. 16 is an eyewitness who was working at Mohan Hotel
as per the case of the prosecution. The witness has deposed
on oath and stated that he works from 12.00 midnight to
11.00 in the morning and along with him Nirmalkumar
Sharma and Kishor Adivasi also work at the hotel. The
counter is looked after by Saini and on 06.01.1997 he was
in the kitchen when there was a huge sound outside and he
came out and saw that his owner had caught one Sardar
and made him sit on the bed. He could not identify the
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Sardar and the police had recorded his statement. The
witness has not supported the case of the prosecution and
has been declared hostile and has been cross-examined at
length by the learned APP but nothing to suggest that the
witness was an eyewitness to the incident has come on
record.
8.4 PW7 – Surendrasing Tanising examined at Exh. 19 is
the complainant who has stated that he was at his counter
at Hotel Mohan when the driver and conductor came to him
and asked him about the road. They had tea and went to
the truck and when they saw that there was a puncture on
the tyre, they started removing the wheel and at that time
they had a quarrel. The accused assaulted the driver with a
wrench three times and thereafter ran away leaving the
wrench at the spot. The witness has identified the accused
before the learned Trial Court. The witness has stated that
as the accused ran away, Jhalam Singh a worker on his
hotel and other truck drivers ran and caught the accused
and brought him to the hotel and he telephoned the Adalaj
Police who came and took the injured to the Hospital and
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they also took the accused. He had filed the complaint
which is produced at Exh. 20. In the cross-examination by
the learned advocate for the accused the witness has stated
that the front portion of the truck was towards his hotel and
there was a light at the pump but the same was at a
distance. At the time of the incident, it was dark and there
are no lights on the road. The persons got down from the
truck asked for the road to Sarkhej and when they brought
the accused he found out that his name was Gulabsingh.
Only after the accused was brought he came to know that
there was a puncture in the truck and he did not see the
accused before the incident. When they brought the accused
to his hotel, the accused had told him that he had assaulted
the driver and hence, he came to know about the assault by
the accused. He did not hear the quarrel between them and
the police had written the complaint at his hotel. He did not
run to catch the accused and he did not hear the accused
and the deceased quarreling and did not intervene in their
quarrel. The witness has categorically stated that he did not
see the accused assaulting the deceased with the wrench
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and he had stated that the accused had assaulted the
deceased only as the accused had told him after he was
caught and brought to the hotel.
8.5 PW8 – Rameshbhai Khodabhai Parmar examined at
Exh. 23 is the Head Constable who was on the Adalaj
Mobile No. III in night patrolling. The witness has stated
that at around 03.00 am he received a wireless message
from Adalaj Police Station that there was a quarrel at Hotel
Mohan and he immediately reached the place. He alone had
gone to the place and a truck bearing registration no. PB-
13-B-9031 was lying at the spot and near the truck was a
person who was injured. He inquired from Surendrasinh at
the counter and found that he was injured in a quarrel and
he took the injured in his mobile to Civil Hospital,
Gandhinagar where the doctors had declared him dead.
After the dead body was placed in the postmortem room, he
went for his night patrolling. In the cross-examination by
the learned advocate for the accused the witness has stated
that the person at the hotel had told him that the cleaner
and the driver had a quarrel and the cleaner had assaulted
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the driver and ran away.
8.6 PW9 – Kiransinh Jalamsingh Parmar examined at Exh.
24 is the Police Constable who had brought the clothes of
the deceased from Civil Hospital, Gandhinagar and handed
them over to the PSO who had seized them in the presence
of two panch witnesses.
8.7 PW10 – Balaji Visaji Rana examined at Exh. 24 is the
PSI Dehgam Police Station who has stated that on
07.01.1997 he was in the jurisdiction of Adalaj Police
Station in night patrolling and at 03.00 am he received a
wireless message from the PSO of Adalaj Police Station that
there was a quarrel at Hotel Mohan. He came to Hotel
Mohan at Adalaj Crossroads at around 03.15 am and the
hotel owner Surendrasinh had caught the accused and
made him sit at the hotel. One another mobile had reached
the place earlier and had taken the injured to the hospital
and he took the custody of the accused and recorded the
complaint of the complainant which is produced at Exh. 20.
The complaint was thereafter sent to the Adalaj Police
Station. In the cross examination by the learned advocate
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for the accused, the witness has stated that he had met the
complainant and inquired from him about the incident.
8.8 PW11 – Sukhdev Ramlal Adivasi examined at Exh. 26
was working at Hotel Mohan on the date of the incident. The
witness has stated that Jalamsingh, Nirmal Sharma and
Surendrasinh were present at the hotel and there was a
noise from outside and two of the workers Jalamsingh and
Nirmalsinh went out and he came after them and at that
time two to three persons had caught a person and brought
him to the owner Surendrasinh. The owner of the hotel
Surendrasinh inquired from the person whom they had
caught and thereafter, he saw the driver unconscious near
the truck. In the cross examination by the learned advocate
for the accused, the witness has stated that he was working
at Hotel Mohan for the past three years and the hotel is
situated on the highway. The truck was lying in front of the
hotel and when he came out, the accused was near the
owner. He did not see the accused running or assaulting
anyone.
8.9 PW12 – Bhupendrasing Pratapsing Garewal examined
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at Exh. 29 is the brother of the deceased who has stated
that his brother Balwindersinh was working as a driver on
truck no. PB-13-B-9031 and would take the truck and go to
Uttar Pradesh, Bihar, Punjab, Gujarat, etc. and would
return home once or twice during the month. He was
informed by the owner of Preet Transport Company,
Jaidevsingh that his brother Balwindersingh had expired
and he came to Gujarat and found that his brother had
expired and his body was at the Civil Hospital,
Gandhinagar.
8.10 PW13 – Chensinh Ishwarsinh Rao examined at Exh. 30
was working as the PSO on 06.01.1997 at Adalaj Police
Station. The witness has stated that at about 02.50 am he
received a telephone call from Surendrasinh Saini of Hotel
Mohan that there was a quarrel at the Hotel and he made
the necessary endorsement in the Register at Entry No. 7
and has produced the extract of the Entry at Exh. 33 and
the extract of the telephone Register at Exh. 34. Thereafter,
he received the complaint and had registered the complaint.
8.11 PW14 – Harpalsinh Chhatrasinh examined at Exh. 36
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has stated that he was working as a driver on truck no. PB-
13-E-4100 and on 03.01.1997, he took the truck with 200
bags of Maida and was coming to Ahmedabad with the
cleaner Jagga Singh. On 06.01.1997, at around 04.00 pm,
they came to Hotel Mohan at Adalaj Crossroads and had
food and were sleeping in the vehicle. At around 02.30 am,
another truck came and halted next to their truck and the
registration no. of the truck was PB-13-9031. He came
down from the truck and checked the number and went
back to his truck. After 10 to 15 minutes, he heard someone
shouting ‘Bhago Bhago Mara Mara’. He got up and saw a
person assaulting another person with a wrench and the
person threw the wrench and ran away. The driver of truck
number PB-13-B-9031 was injured and he was lying near
the left back wheel of the truck and blood was flowing from
his head. He immediately ran behind the person who had
assaulted the driver and caught him near the petrol pump.
Some other persons also came and they brought him back
to the hotel and inquired his name and thereafter handed
him over to the hotel owner. The owner of the hotel
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telephoned the police and the police came after 15 to 20
minutes and took the dead body of the deceased and also
the accused. In the cross-examination by the learned
advocate for the accused, the witness has stated that he
had earlier seen the accused in the Sunam Truck Union and
he knew his name was Gulabsingh. There was a distance of
about 5 meters between both their trucks and he had seen
the number plate fixed on the back side of the truck but
thereafter went and sat in his vehicle. When he awoke, he
did not hear any shouts and after he heard the shouts, he
got down from the truck. He did not see the accused
assaulting the deceased and he ran for about 50 to 60
meters behind the accused. He saw the accused assaulting
the deceased and hitting him with his wrench three times
on the head. When he caught the accused, he did not resist
and he brought the accused to the owner of Hotel Mohan.
The accused did not have any conversation with him and
did not have any conversation with any other person in his
presence. He knew the deceased for the past 4 to 5 years
and was friends with him.
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8.12 PW15 – Amin Swale Kasiri examined at Exh. 37 is the
Investigating Officer who has narrated the procedure
undertaken by him during investigation until the charge
sheet was filed. In the cross-examination by the learned
advocate for the accused, the witness has stated that he
had gone to the place with his writer and had arrested the
accused after the panchnama was prepared.
9. Upon a fresh and independent re-appreciation of the
entire evidence on record, this Court finds that the
prosecution has failed to establish its case beyond
reasonable doubt, and the view taken by the learned Trial
Court is both plausible and legally sustainable, warranting
no interference in an appeal against acquittal. At the
outset, the very substratum of the prosecution case
appears doubtful. Though it is alleged that the deceased
was the driver of truck bearing No. PB-13-B-9031, no
cogent evidence has been adduced to substantiate this
foundational fact. The owner of the said truck who would
have been the best witness to prove the employment and
presence of the deceased as a driver, has not been
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examined. This omission assumes significance as it strikes
at the root of the prosecution story. Further, as per the
prosecution, independent witnesses namely Nirmal Sharma
and Kishor Adivasi who were stated to be present at Hotel
Mohan and to have witnessed the incident and
apprehended the accused, have not been examined. The
non-examination of these material and independent
witnesses gives rise to an adverse inference against the
prosecution, particularly when their presence is central to
unfolding the manner of the incident and the apprehension
of the accused. Similarly, the testimony of PW14
Harpalsinh Chhatrasinh refers to one Jagga Singh, stated
to be the cleaner on his truck and present at the time of the
incident. However, this witness has also not been
examined. The cumulative effect of non-examination of
such material witnesses renders the prosecution version
fragile and uncorroborated. The complainant, who has
lodged the FIR projecting himself as an eye-witness, has in
his deposition admitted that from the place where he was
sitting, he could not have seen the incident, as it occurred
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near the rear tyre of the truck. He has further categorically
stated that he did not witness the accused assaulting the
deceased. This admission demolishes the prosecution’s
claim of direct ocular evidence. As regards the medical
evidence, the injury found on the head of the deceased, as
per the opinion of the Medical Officer, could be caused by a
fall. This opinion introduces a reasonable alternative
hypothesis inconsistent with the prosecution case of
homicidal assault by the accused. The circumstances
surrounding the occurrence also render the prosecution
version doubtful. The incident is alleged to have taken place
at about 02.40 – 02.55 am, when admittedly there was no
sufficient lighting on the road. PW14, projected as an eye-
witness, has admitted that there was a distance of about 15
metres between the trucks and that he was asleep and
woke up only upon hearing shouts. In such conditions of
darkness and distance, the possibility of correct
identification and clear perception of the incident becomes
highly doubtful. His conduct is also unnatural, inasmuch
as despite allegedly noticing the arrival of the truck, he
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neither interacted with the deceased nor the accused. The
forensic evidence also fails to advance the prosecution case.
Though human blood was detected on the pant of the
accused, the blood group could not be determined.
Significantly, the investigating agency failed to collect the
blood sample of the accused and thus no comparison was
possible. In absence of such linkage, the Serology Report
remains inconclusive and cannot be treated as
incriminating evidence. The prosecution version regarding
the apprehension of the accused is also not free from
doubt. According to the complainant, immediately after the
incident, the accused was apprehended by Nirmal Sharma
and Kishor Adivasi and brought to Hotel Mohan. However,
PW8 – Ramesh Khodabhai Parmar, the first police witness
to reach the spot, is conspicuously silent about the
presence of the accused either at the scene of offence or at
Hotel Mohan. His testimony only indicates that he shifted
the injured to the hospital and spoke to the owner of Hotel
Mohan without any reference to the accused. It is only
subsequently, through PW10 Balaji Visaji Rana, that the
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accused is stated to have been taken into custody. This gap
in the prosecution narrative creates serious doubt
regarding the presence and apprehension of the accused at
the relevant time. In view of the aforesaid infirmities namely
absence of proof of foundational facts, non-examination of
material witnesses, unreliable ocular testimony,
inconclusive forensic evidence and significant
inconsistencies in the prosecution case, we find that the
prosecution has failed to establish a complete and cogent
chain of circumstances pointing unerringly towards the
guilt of the accused. It is trite that in an appeal against
acquittal, unless the findings of the Trial Court are
perverse, manifestly illegal, or wholly contrary to the
evidence on record, interference is not warranted. The view
taken by the learned Trial Court in the present case is a
reasonable and possible view based on the evidence and
does not suffer from any perversity.
10. The learned Trial Court has appreciated all the
evidence and we are of the considered opinion that the
learned Trial Court was completely justified in acquitting
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the accused of the charges leveled against him. The findings
recorded by the learned Trial Court are absolutely just and
proper and no illegality or infirmity has been committed by
the learned Trial Court and we are in complete agreement
with the findings, ultimate conclusion and the resultant
order of acquittal recorded by the learned Trial Court. We
find no reason to interfere with the impugned judgment and
order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
11. The impugned judgement and order of acquittal
passed by the learned Additional Sessions Judge,
Ahmedabad (Rural) at Gandhinagar in Sessions Case No.
12/1997 on 12.08.1998, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
Sd/-
(SANJEEV J.THAKER,J)
VASIM S. SAIYED
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