Gujarat High Court
Nasimuddin Fakruddin Kazi vs State Of Gujarat on 1 May, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1208/2006 JUDGMENT DATED: 01/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1208 of 2006
With
R/CRIMINAL APPEAL NO. 1216 of 2006
With
R/CRIMINAL REVISION APPLICATION NO. 561 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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NASIMUDDIN FAKRUDDIN KAZI & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR SAURIN A SHAH (791) for the Appellant(s) No. 1,2
MR VIJAY PATEL for the Applicant in CRRA 561/06
MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/05/2026
JUDGMENT
1. Criminal Appeal no.1208 of 2006 is by original accused
nos.1 and 2, while Criminal Appeal no.1216 of 2006 is by
original accused nos.3 and 4, challenging the judgment
and order of conviction and sentence dated 19.6.2006
passed by the learned Additional Sessions Judge, Valsad
in Sessions Case no.75 of 2003.
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1.1 The accused came to be convicted under Section 325
read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC” for short), and were
sentenced to undergo three years rigorous imprisonment
with fine of Rs.2,500/- and in default of payment of fine,
to further undergo simple imprisonment of three months,
while were acquitted under Sections 143, 147, 148, 149,
323, 504, 506(2) and 307 of the IPC.
2. Criminal Revision Application no.561 of 2006 is filed by
the original complainant under Section 397 read with
Section 401 of the Code of Criminal Procedure, 1973
(“Cr.P.C.” for short) praying for enhancing the sentence
imposed by the Trial Court and to convict the accused for
the offences to which accused came to be acquitted.
2.1 Learned advocate Mr Vijay Patel submitted that the
Prayer has been made to enhance the sentence imposed
by the trial court to maximum punishment for the offence
under section 325, read with section 34 of IPC and for
convicting the accused for the offence under section 143,
147, 148, 149, 323, 504, 506(2), and 307 of IPC.
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2.2 It was contended by Advocate Mr. Patel that in acquitting
the accused the sessions court has not considered the
clear evidence of head injury which was proved beyond
reasonable doubt. The head injury was grievous which
discloses the intention of the assailants and that the
defence side has not been able to bring evidence to
create doubt, Advocate, Mr Patel stated that the
complainant had received fracture injuries on fingers and
several injuries on other parts of the body, he was
operated. While making efforts to save his head, received
injury on hands, but could survive thus submitted that
the cumulative effect of the evidence indicates intention
of the accused for committing murder of the petitioner.
Advocate Mr Patel stated that the conclusion of the
learned Judge becomes erroneous on record, to observe
that if the assailants wanted to commit murder they
could have driven the vehicle on the complainant. Mr
Patel stated that the punishment recorded is lesser in
comparison to the grievousness of the matter and
submitted that the learned Judge has erred in acquitting
the accused under section 307 of IPC and ought to have
punished under section 326 of IPC with the maximum
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sentence.
2.3 Section 372 of the CrPC gives right to the victim to prefer
an appeal against an order passed by a court acquitting
an accused or convicting for lesser offence or imposing
inadequate compensation. The proviso to Section 372
came into force wide effect from 31.12.2009. the present
Revision Application is of year 2006. Section 372 of CrPC
has not been given a retrospective effect. Here the
prayer is made for enhancing the sentence and
convicting the accused under section 326 of IPC with the
maximum sentence.
2.4 Having noticed the provision under section 401 of CrPC of
the High Court’s Revisional power, Sub-section (3) clearly
restricts the High Court to convert the finding of an
acquittal into one of conviction. Thus, the prayer of
convicting the accused under Section 307 or Section 326
of the IPC would not be maintainable in the revisional
jurisdiction.
2.5 The scope of Section 397 of CrPC is to set right a patent
defect or an error of jurisdiction or law or perversity
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which has crept in the proceeding. The prayer is also
made by the complainant regarding the insufficiency of
the sentence. In the case of Gopal Singh vs State of
Uttarakhand reported in (2013) 7 SCC 545, the
Supreme Court was examining the question of
sentencing. In para 18 and 19 it was held as under:-
“18. Just punishment is the collective cry of
the society. While the collective cry has to
be kept uppermost in the mind,
simultaneously the principle of
proportionality between the crime and
punishment cannot be totally brushed
aside. The principle of just punishment is
the bedrock of sentencing in respect of a
criminal offence. A punishment should not
be disproportionately excessive. The
concept of proportionality allows a
significant discretion to the Judge but the
same has to be guided by certain
principles. In certain cases, the nature of
culpability, the antecedents of the accused,
the factum of age, the potentiality of the
convict to become a criminal in future,
capability of his reformation and to lead an
acceptable life in the prevalent milieu, the
effect — propensity to become a social
threat or nuisance, and sometimes lapse of
time in the commission of the crime and his
conduct in the interregnum bearing in mind
the nature of the offence, the relationship
between the parties and attractability of the
doctrine of bringing the convict to the
value-based social mainstream may be the
guiding factors. Needless to emphasise,
these are certain illustrative aspects put
forth in a condensed manner. We mayPage 5 of 83
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hasten to add that there can neither be a
straitjacket formula nor a solvable theory in
mathematical exactitude. It would be
dependent on the facts of the case and
rationalised judicial discretion. Neither the
personal perception of a Judge nor self-
adhered moralistic vision nor hypothetical
apprehensions should be allowed to have
any play. For every offence, a drastic
measure cannot be thought of. Similarly, an
offender cannot be allowed to be treated
with leniency solely on the ground of
discretion vested in a court. The real
requisite is to weigh the circumstances in
which the crime has been committed and
other concomitant factors which we have
indicated hereinbefore and also have been
stated in a number of pronouncements by
this Court. On such touchstone, the
sentences are to be imposed. The
discretion should not be in the realm of
fancy. It should be embedded in the
conceptual essence of just punishment.
19. A court, while imposing sentence, has
to keep in view the various complex
matters in mind. To structure a
methodology relating to sentencing is
difficult to conceive of. The legislature in its
wisdom has conferred discretion on the
Judge who is guided by certain rational
parameters, regard been had to the factual
scenario of the case. In certain spheres the
legislature has not conferred that discretion
and in such circumstances, the discretion is
conditional. In respect of certain offences,
sentence can be reduced by giving
adequate special reasons. The special
reasons have to rest on real special
circumstances. Hence, the duty of the court
in such situations becomes a complex one.
The same has to be performed with due
reverence for the rule of law and thePage 6 of 83
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collective conscience on one hand and the
doctrine of proportionality, principle of
reformation and other concomitant factors
on the other. The task may be onerous but
the same has to be done with total
empirical rationality sans any kind of
personal philosophy or individual
experience or any a priori notion.”
2.6 Section 397 Cr.P.C. is for “calling of records to exercise
powers of revision” of this Court. The said power can be
invoked under Section 401 Cr.P.C. for the purpose of
satisfying as to the correctness, legality or propriety of
any finding, sentence or order, recorded or passed, and
as to the regularity of any proceedings of inferior Court
and when calling for such record, may direct that the
execution of any sentence or order be suspended and if
the accused is in confinement, that he shall be released
on bail or on his own bond pending the examination of
the record. Section 401 Cr.P.C. refers to the High Court’s
power of revision, which is reproduced hereinbelow:-
“401. High Court’s powers of
revision.– (1) In the case of any
proceeding the record of which has been
called for by itself or which otherwise
comes to its knowledge, the High Court
may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by
sections 386, 389, 390 and 391 or on aPage 7 of 83
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Court of Session by section 307, and, when
the Judges composing the Court of Revision
are equally divided in opinion, the case
shall be disposed of in the manner provided
by section 392.
(2) No order under this section shall be
made to the prejudice of the accused or
other person unless he has had an
opportunity of being heard either personally
or by pleader in his own defence.
(3) Nothing in this section shall be
deemed to authorise a High Court to
convert a finding of acquittal into one
conviction.
(4) Where under this Code an appeal lies
and no appeal is brought, no proceeding by
way of revision shall be entertained at the
instance of the party who could have
appealed.
(5) Where under this Code an appeal lies
but an application for revision has been
made to the High Court by any person and
the High Court is satisfied that such
application was made under the erroneous
belief that no appeal lies thereto and that it
is necessary in the interests of Justice so to
do, the High Court may treat the application
for revision as a applicant of appeal and
deal with the same accordingly.”
2.7 In the case of Sheetala Prasad & Ors. v. Sri Kant &
Anr., reported in (2010) 2 SCC 190, where the Hon’ble
Supreme Court has referred to the revisional power and
the proper mode to be exercised by the High Court and
the scope of interference, where the revision preferred is
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by the private complainant (State or accused have not
preferred any appeal). The Hon’ble Supreme Court has
categorized the cases, where revision preferred by the
private complainant would become maintainable. It has
been held in Paragraph 12 as under:-
“Without making the categories exhaustive,
revisional jurisdiction can be exercised by
the High Court at the instance of a private
complainant-
(1) where the trial court has wrongly shut
out evidence which the prosecution wished
to produce,(2) where the admissible evidence is
wrongly brushed aside as inadmissible,(3) where the trial court has no
jurisdiction to try the case and has still
acquitted the accused,(4) where the material evidence has been
overlooked either by the trial court or the
appellate court or the order is passed by
considering irrelevant evidence, and(5) where the acquittal is based on the
compounding of the offence which is invalid
under the law.”
3. Here in the matter, the prosecution case is that all the
accused, in order to carry out their common intention,
formed an unlawful assembly, and due to enmity arising
out of separation from the profession of advocacy and
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keeping a grudge in connection to the offence registered
against Advocate Naim Kazi at Valsad City Police Station,
with an intention to commit murder of the complainant,
on 15.1.2002 at about 17:00 hours, near Atul Chanvai
Road, near Ambamata Temple, when the complainant
was going towards Valsad on his motorcycle bearing
registration no. GJ-15 AA-5787, hit him with a jeep, and it
was stated that from another jeep bearing registration
no. GBS – 9998, all the accused got down and assaulted
the complainant with pipes and sticks, causing fractures
in both legs and inflicting grievous injuries.
3.1 The said complaint was initially registered with Valsad
City Police Station and then transferred to Atul Police
Station. The investigation was carried out by Police
Inspector, Rameshbhai Dhanjibhai Faldu who had drawn
Panchnama of the place of offence and took statements
of the concerned witnesses. He sent the sample to FSL
and then handed over the further investigation to Shri B.J.
Shahi. Thereafter, on 8.5.2002, the accused were
arrested and the Investigating Officer filed a charge-sheet
before the competent Court, which culminated into
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Criminal Case no. 1482 of 2003.
4. Heard Mr. Saurin Shah, learned advocate for the
appellants and Mr. Hardik Mehta, learned APP for the
respondent – State.
5. Mr. Saurin Shah, learned advocate appearing for the
appellants-accused assailing the impugned judgment and
order of conviction and sentence passed by the learned
Trial Court, contended that the same suffers from serious
errors of law as well as misappreciation of evidence on
record. Mr. Shah submitted that the learned Trial Judge
has failed to evaluate the oral and documentary evidence
in its true perspective and has erroneously recorded a
finding of guilt against the appellants.
5.1 At the outset, learned advocate Mr. Shah would submit
that the prosecution has miserably failed to establish its
case beyond reasonable doubt. Advocate Mr. Shah
contended that even if the entire evidence is taken at its
face value, no offence, much less the offence punishable
under Section 325 read with Section 34 of the Indian
Penal Code, can be said to have been proved against the
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appellants.
5.2 Learned advocate Mr. Shah has argued that the
prosecution has placed reliance solely upon the
testimony of interested witnesses, while deliberately
withholding independent witnesses who were admittedly
available at the scene of offence. It is pointed out that, as
per the case of the prosecution itself, at the relevant
point of time, workers of Atul Chemical Industries were
present near the place of incident, as it was closing time
of the industrial unit. Despite such a situation, none of
these independent witnesses have been examined by the
prosecution, thus, submitted that this omission is fatal to
the case of the prosecution. According to learned
advocate Mr. Shah, when independent witnesses were
available and yet not examined, adverse inference is
required to be drawn against the prosecution. It was
further contended that there existed prior enmity
between the complainant and the appellants, and
therefore, the possibility of false implication cannot be
ruled out.
5.3 While fairly conceding that conviction can be based on
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the testimony of injured witnesses, learned advocate Mr.
Shah has submitted that such evidence must be wholly
reliable, cogent, and must inspire complete confidence.
In the present case, the evidence led by the prosecution
is neither trustworthy nor free from doubt. It was
submitted that where the evidence does not inspire
confidence, it is always safer to seek corroboration from
independent sources. In the absence of such
corroboration, the learned Trial Court ought not to have
based the conviction upon such shaky evidence.
5.4 Learned advocate Mr. Shah has took the Court through
the medical evidence and has submitted that there are
material inconsistencies between the medical and ocular
versions. Referring to the deposition of the complainant –
Jiyauddin Miranmiya Kazi, it was submitted that the
complainant has stated that he had disclosed the names
of the accused persons before the doctor at the time of
treatment. However, this version is not supported by the
medical officer, Dr. Vijay Khatri, who has categorically
stated that the complainant had only informed that he
had sustained injuries due to a quarrel and had not
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disclosed the names of any assailants.
5.5 Learned advocate Mr. Shah further submitted that Dr.
Vijay Khatri has opined that such injuries could also be
sustained in an accident. According to learned advocate
Mr. Shah, this aspect assumes great significance and
creates a serious doubt as to whether the injuries were
caused in the manner alleged by the prosecution or were
the result of an accidental incident. It is therefore
contended that the prosecution has failed to establish a
clear nexus between the alleged assault and the injuries
sustained by the complainant.
5.6 Learned advocate Mr. Shah has thereafter drawn
attention to inherent contradictions in the version of the
complainant. It is submitted that the complainant has
stated that he was riding a motorcycle when the accused
persons came in two jeeps and assaulted him with sticks.
The complainant has further stated that he was wearing a
helmet at the time of the incident and that the helmet
was broken during the assault.
5.7 It is submitted that neither the helmet nor the motorcycle
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had been recovered by the investigating agency from the
scene of offence. Even the complainant has admitted that
he did not make any inquiry regarding the recovery of
these articles. The Investigating Officer (PW-6) has also
admitted in his deposition that no such recovery was
effected. According to learned advocate Mr. Shah, this
creates a serious dent in the prosecution case and
renders the version of the complainant doubtful.
5.8 Learned advocate Mr. Shah has submitted that the
testimony of PW2 – Jayesh Hiralal Panvala, who had
allegedly shifted the complainant to the hospital, is in
direct contradiction with the complainant. It is submitted
that this witness has deposed that a scooter was lying at
the scene of offence, whereas the complainant has
consistently stated that he was riding a motorcycle. This
contradiction goes to the root of the matter and creates
serious doubt regarding the manner in which the incident
had taken place.
5.9 It is further submitted that this witness PW2 has admitted
that he did not inquire about the incident from the
complainant while taking him to the hospital. He has also
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expressed inability to recollect where his statement was
recorded by the police. According to learned advocate
Mr. Shah, this shows that the witness is unreliable and his
testimony does not support the prosecution case.
5.10 Learned advocate Mr. Shah has also heavily relied upon
the deposition of the Investigating Officer, PW-6
Rameshbhai Dhanjibhai Faladu, to point out glaring
lapses in investigation. It is submitted that no helmet
allegedly worn by the complainant has been recovered,
the motorcycle allegedly used by the complainant has
not been seized, the clothes worn by the complainant at
the time of incident have not been recovered and that no
evidence regarding ownership of the motorcycle has
been collected. It is further submitted that statements of
nearby workers, including those of the sawmill, have not
been recorded and no independent eyewitnesses have
been examined despite the presence of public and traffic
at the relevant time.
5.11 It is submitted that these lapses clearly indicate that the
investigation is perfunctory and incomplete, and the
benefit of such lapses must go in favour of the accused.
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5.12 Learned advocate Mr. Shah has further referred to the
deposition of PW7 – Investigating Officer – Bhimbahadur
Jangbahadur Shahi, and has submitted that despite the
accused being taken on remand, no weapons allegedly
used in the commission of offence have been recovered.
It is further submitted that though the prosecution
alleges that the accused came in two jeeps, no such
vehicles have been recovered or traced during the course
of investigation. This, according to learned advocate Mr.
Shah, further weakens the prosecution case.
5.13 It is thus submitted that the prosecution has failed to
prove its case through reliable, cogent and convincing
evidence, and the learned Trial Court has committed a
grave error in placing reliance upon such doubtful
evidence to record conviction.
5.14 Learned advocate Mr. Shah has therefore submitted that
the learned Trial Judge has materially erred in
appreciating the evidence on record and has wrongly
held the appellants guilty for the offence punishable
under Section 325 read with Section 34 of the Indian
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Penal Code. The findings recorded by the learned Trial
Court are perverse, contrary to the evidence on record,
and unsustainable in law.
5.15 Learned advocate Mr. Shah has submitted that though
the learned Judge has framed the charge for the offences
punishable under Sections 143, 147 and 149 r/w sec. 149
of IPC, the charge is defective, inasmuch as, the charge
refers to only four accused. There is no reference in the
charge about these four accused forming unlawful
assembly with any absconding accused, namely,
Naimuddin Fakruddin Kazi. Thus, the framing of charge
being against four accused, without those four accused
forming unlawful assembly with unknown persons, the
charge under Sections 147, 147, 148 is not prima facie
emerging from framing of the charge.
5.16 Learned advocate Mr. Shah submitted that the learned
Judge failed to appreciate the medical evidence in its
proper perspective.
5.17 The size of CLWs 2 x 1 cm clearly renders the evidence of
the complainant about infliction of blows by stick and
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pipe doubtful. Considering the nature of weapon, namely,
stick and pipe, there bound to be injuries of more length
and width than the one which are found. As regards
injury on head there is no description and as it is
presented to be blunt injury, what was the size and
nature of that blunt injury is not emerging on record.
Similarly, injury no. (iii) reflects fractures of 4 th and 5th
fingers and thumb and there is no external injury
reflecting the size and nature of injury whether it is
contusion, or contused lacerated wound or abrasion. This
merely describes fractures of bones of thumb, 4 th and 5th
fingers.
5.18 Thus, considering the entire medical evidence and nature
of injuries, the complainant’s evidence about infliction of
blows by accused with pipe and sticks is not prima facie
substantiated. Furthermore, it is the case of the
complainant that there were wheel-marks on his body is
also not supported by the medical evidence. It is alleged
that Nazim had inflicted pipe blow on head but as
complainant had put on helmet and he had raised his
hand he had sustained injury on hand by pipe. It is
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further alleged that Nazim had snatched the helmet and
inflicted second blow on head which he warded off by
raising left hand and pipe blow felt on left hand. Thus,
according to the complainant pipe blow had not landed
on head and both blows sought to be inflicted by Nazim
felt on his hand. There are no external injuries on left
hand of the complainant when it is alleged that he
sustained injuries on left hand while trying to ward off
pipe blows being inflicted by Nazim.
5.19 Learned advocate Mr. Shah submitted that it is also
emerging from the evidence of the complainant that the
accused lzhar was driving jeep and he had tried to kill
him by driving jeep and hence he turnoff his motorcycle
and escaped from that place towards Atul Police Station.
It is further the case of the complainant that after going a
distance of about 15 ft. another jeep came from opposite
side and left side door of the said jeep was opened and at
that time he dashed with left side door and he fell down.
It is the case of the complainant that from this jeep
Nazim Fakru, Vasim Fakru and Vasim Nazim got down
and they started assault with pipe and sticks. Thus, one
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thing clearly emerges that the complainant had
accidentally collided with left side door of the jeep on its
opening and he had fallen down. This aspect would
clearly explain the nature of injuries on both legs viz.,
CLWs of 2 x 1 cm. The medical evidence clearly
probablize the injuries being received in an accident.
Thus, considering the nature of medical evidence and the
evidence of the complainant who is having inimical
relations with the family of the accused, the version of
infliction of blows suggested in the manner by the
complainant is highly improbable.
5.20 Learned advocate Mr. Shah further submitted that though
the incident took place at about 5.00 p.m. on a public
road where there are number of shops and even temple
and the complainant also admits that number of persons
had also assembled, no single witness is examined to
substantiate the case of the complainant.
5.21 Learned advocate Mr. Shah contended that similarly, the
evidence of Jayesh Hiralal Panwala (PW.2/Exh.47) makes
the evidence of the complainant highly unnatural and
improbable. The witness has not witnessed the incident,
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but he is the witness who had taken the complainant to
the hospital of Dr. Vijay Khatri and he had seen vehicle of
the complainant lying on the road still he had not learnt
anything about the incident at the place of offence and
he also did not inquire from the complainant as to how
the incident took place. Thus, soon after the incident, the
complainant has not disclosed the happening of the
incident to witness Jayesh.
5.22 Thus, the learned Judge, while appreciating the evidence
of the complainant, ought to have taken into
consideration that the complainant is a lawyer and he has
animosity with the family of the accused and, more
particularly, advocate Naimuddin Kazi who is closely
related to the accused. There is no other circumstantial
evidence corroborating the case of the complainant. The
evidence of the complainant cannot be considered to be
wholly reliable and when his evidence is not consistent
with medical evidence and nature of the injuries, the
order of conviction and sentence for the offence under
Section 325 of IPC is absolutely illegal and unwarranted.
5.23 Without prejudice to the aforesaid submissions, it is
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submitted that the appellants were not enlarged on bail
during the trial and have already undergone substantial
period of imprisonment, having remained in custody
since 02.04.2004 against the sentence of two and a half
years. It is therefore prayed that this Court may consider
the period already undergone by the appellants.
5.24 In view of the aforesaid submissions, learned advocate
Mr. Shah has prayed that the impugned judgment and
order of conviction passed by the learned Trial Court be
quashed and set aside.
6. Mr. Hardik Mehta, learned APP appearing for the
respondent-State has strongly opposed the appeal and
has supported the prosecution case by contending that
the learned Trial Court has erred, in acquitting the
accused of the graver offences and in awarding a lesser
sentence, despite cogent, reliable and convincing
evidence available on record.
6.1 It is submitted by learned APP Mr. Mehta that the
evidence on record clearly establishes that the
complainant had sustained a head injury in the course of
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the incident, which stands duly proved beyond
reasonable doubt. It is contended that even if the said
injury is not classified as grievous or life-threatening, the
nature and location of the injury clearly disclose the
intention of the assailants. Drawing attention to the
deposition of the complainant at Exh. 38, it is submitted
that the complainant has consistently stated about the
assault on the vital part of the body, and the defence has
failed to bring on record any material to discredit or
create doubt regarding this aspect.
6.2 The learned APP Mr. Mehta has submitted that the
complainant had also sustained multiple injuries,
including fracture injuries on his fingers and other parts
of the body, for which he had to undergo surgical
intervention. It is further contended that such injuries
were sustained while the complainant was attempting to
shield his head from the assault, which ultimately
enabled him to survive. According to the learned APP, the
cumulative effect of these injuries, when read in light of
the manner of assault, clearly indicates that the accused
had the requisite intention to cause death of the
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complainant.
6.3 The learned APP Mr. Mehta has further submitted that the
learned Trial Court has erred in drawing an adverse
inference by observing that if the accused had intended
to commit murder, they could have used their vehicle to
run over the complainant. It is contended that such
reasoning is speculative and contrary to the evidence on
record. Referring to the deposition of the complainant at
Exh. 38, it is submitted that immediately after the
incident, several persons had gathered at the spot, which
prevented the accused from carrying out any further
assault. It is submitted that this explanation is plausible
and has not been discredited in cross-examination, nor
has the defence led any evidence to rebut the same.
6.4 The learned APP Mr. Mehta has also assailed the quantum
of sentence imposed by the learned Trial Court. It is
submitted that the learned Judge has committed a
serious error in awarding only three years of rigorous
imprisonment to the accused despite the fact that the
complainant had sustained grievous injuries, including
fractures on both legs, necessitating surgical treatment.
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It is contended that the nature of injuries clearly falls
within the ambit of grievous hurt, and the same were
inflicted by dangerous weapons such as pipes and
wooden logs.
6.5 It is further submitted by learned APP Mr. Mehta that
though the learned Trial Court has accepted the use of
weapons by the accused, as reflected in paragraph 22 of
the judgment, there is inconsistency in referring to the
weapons as “sticks” instead of pipes and wooden logs,
which is contrary to the evidence on record. According to
the learned APP, this misreading of evidence has resulted
in awarding a lesser punishment than what is warranted
in law.
6.6 The learned APP Mr. Mehta has therefore contended that
the offence made out against the accused squarely falls
under Section 326 of the Indian Penal Code, and the
sentence imposed ought to have been proportionate to
the gravity of the offence.
6.7 It is further submitted by learned APP Mr. Mehta that the
prosecution has successfully established the motive on
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the part of the accused to commit the offence. The
evidence of the complainant, which has been believed by
the learned Trial Court while recording conviction,
remains unimpeached and trustworthy. Once the
testimony of the complainant is accepted, there was no
justification for the learned Trial Court to dilute the
nature of offence or reduce the quantum of sentence.
6.8 In sum and substance, the learned Additional Public
Prosecutor Mr. Mehta has submitted that the findings
recorded by the learned Trial Court insofar as they relate
to acquittal for graver offences and imposition of lesser
sentence are erroneous, contrary to the evidence on
record and require interference by this Court.
6.9 It is therefore prayed that this Court may be pleased to
modify the impugned judgment and order by holding the
accused guilty for the offence under the appropriate
graver provisions, and by enhancing the sentence in
accordance with law.
7. The charge framed below Exh.24 in the Sessions Case
no.75 of 2003 was against four accused, accused no.1 –
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father and accused nos.2 to 4 – sons. The charge was
that all the four accused in furtherance of their common
intention, harbouring the enmity, owing to the
complainant’s disengaging himself from the practice of
advocacy with accused no.1, and of filing offence before
Valsad City Police Station against advocate – Naim Kazi
on 15.1.2002 at about 17:00 hrs. at Atul – Chanvai Road,
opposite Ambamata Temple, while complainant was
traveling on his motorcycle towards Valsad, dashed him
with one jeep, and thereafter, all the accused
disembarked from another jeep bearing registration no.
GBS – 9998 with pipes and sticks hit him and caused
fracture on both the legs resulting into grievous hurt to
be tried under Sections 143, 147, 148, 149, 323, 325,
307 of IPC.
8. The charge refers to two jeeps one dashing the
complainant, and another jeep, wherein from all the
accused alighted with pipes and sticks. One jeep is
unknown, while jeep from which accused got down is with
the registration number. The weapons are pipes and
sticks, and the injury is fracture on both the legs and
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fracture of the lower bone of left thumb and 4 th and 5th
finger.
9. In the background of the charge framed and the
arguments raised, the judgment of conviction and
sentence ordered by the Trial Court requires to be
examined on appreciation of the oral and documentary
evidence led during the trial.
10. Dr. Vijay Nagindas Khatri was examined as PW4.
According to his evidence, Ziyauddin M. Kazi was
admitted in his hospital on 15.1.2004. After he was
admitted, the Doctor informed the police in the evening
at 6:45 hrs., on the letter pad. The communication of the
Doctor was produced at Exh.54. The charge refers to the
incident occurring at 5 O’Clock in the evening and the
Doctor informed the police by the communication Exh.54
at 6:45 in the evening.
11. In the letter dated 15.1.2004 addressed to City Police
Station, Valsad, the Doctor wrote that Shri Zaruddin M.
Kazi was admitted in his hospital on that day and he
suffered fractures on both legs and left hand, such
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injuries he suffered during a fight, thus asked the police
to do the needful.
12. The document at Exh.54 does not reflect as to with whom
the fight took place. The accused were not named by the
complainant to the Doctor. The Doctor has not referred to
the name of the accused. Even in the certificate of injury
Exh.55 dated 21.1.2002, the Doctor while noting that
Ziyauddin M. Kazi was allegedly assaulted with sticks and
pipes, no reference is made of the names of assailants.
13. The medical evidence clearly refers to four injuries, they
are
i) Two CLWs of size of 2 x 1 cm on right leg disclosing
fracture of Tibia – Fibula;
ii) One CLW of 2 x 1 cm on left leg disclosing fracture of
Tibia – Fibula;
iii) There was fracture on lower bone of left thumb and 4 th
and 5th (small) fingers fracture;
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14. The Doctor stated that on 16.1.2002, he operated the
patient, who was discharged on 4.2.2002. No documents
of operation are produced. The Doctor opined that injury
nos.1 to 3 were grievous. In the cross-examination, the
Doctor could say that Yadi was received at the Police
Station at 19:20 hrs. The Doctor does not remember how
the Yadi was sent. The Doctor stated that when any
patient comes to the hospital, they would ask about the
history of the incident and generally would ask about the
place, where the incident occurred and how it occurred
and who played what role, and when the patient would
give the names of the assailant, they would write down
the names.
15. The Doctor had noted about the person who brought the
patient. The Doctor said that he cannot say, as to what
type and how many injuries could be caused if a person is
beaten with pipe and sticks. The Doctor also stated that
he cannot say that in the circumstances referred, the
complainant would have received more injuries than
sustained. The Doctor opined that the injuries to the
complainant were possible by at least four blow and not
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more than that. Such injuries could occur even because
of accident. The Doctor stated that the injuries cannot be
said to have caused to any sensitive part. There was no
possibility of death because of the injuries.
16. The Doctor, thus, opined that the injuries could be caused
only by four blows. It could also be by accident. The
injuries were not on vital part of body. Further, the
evidence also records that the names of assailants were
not given, further how the incident occurred was also not
recorded by way of history.
17. PW3 – Shahidhussain Mohammad Hussain is the close
friend of the complainant whose name has been referred
to in the complaint, prior to the incident after meeting
the police PW6 the complainant had gone to the house of
this witness.
18. PW3 was examined as the Panch of the place of incident.
Police has called him on 16.01.2002 at 8 in the morning
at Atul first gate police station, another Panch witness
was Rakesh Mishra, the witness stated that Jayeshbhai
(PW 2) was present there, from the Police Station they all
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had gone to a place near Amba Mata temple. The place
of Incident was shown to him by the police and PW2,
which was between Amba Mata temple and Saw-Mill on
the road from Valsad to Atul which was in the east-west
direction. On the eastern side of the Temple was the
Highway surrounding there were bakeries and ahead was
road towards Chanvay were they saw stains of blood.
Witness stated that blood stained soil was taken away by
the police in a plastic bag. The witness also stated that
Yamaha Motor Cycle was also lying there. The witness as
Panch identified his signature on Panchnama Exh 49.
19. PW3 was cross-examined, initially he denied of any
relation with the complainant stating that he only knew
him as an advocate. Thereafter the witness admitted that
on that day i.e. the day of incidence 15.01.2002, the
complainant has come to his house in afternoon at 3 p.m.
and stayed till 4:45 p.m. The complainant has come to his
house in relation to the theft case of his son. He stated
that he had not called the complainant but the
complainant had come on his own. The witness further
stated that he had not known about the incidence at 8
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o’clock in morning on 16.01.2002 but police had come to
call him. The distance between, his house and Atul police
station, was half a kilometer.
20. In the cross-examination, in context with the place of
incidence, the witness stated that the motor cycle was
lying on the western side of the road near the Saw-Mill
beyond the road. The witness stated that he has not seen
the helmet at that place. The deposition also reflects that
there are many shops and houses near the place of
incidence. In the cross-examination, the witness was
asked about the cases lodged against him. The witness
stated that he was not knowing of any case lodged
against him in regard to duplicate biscuits at the Jalaram
guest house and for that purpose arrest made. Witness
also expressed his ignorance of the case registered under
TADA at Anand Police State and the arrest thereto. The
witness also feign his ignorance of a case filed by
Afrozbibi Nazimuddin Kazi of Chanvai at Atul Police
Station as II-CR No. 11/02 under section 506(2), 114 of
IPC and Section 25(1)(c) of the Arms Act. The witness
admitted that he had given a complaint against Moin,
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Izhat and Naseem at Valsad City Police Station as II-CR
No. 3005/02 on 09.01.2002. The witness stated that he
was suspended from job as driver from Atul Company.
The witness has admitted that there was a case at Vapi
Police Station as I-CR No. 113/01 under section 387,
506(2) of IPC against him and other person. The witness
denied of knowing any complaint filed by him against PSI
Shukla. The witness denied of giving complaint against
PSI KG Vaghela. The witness denied of any complaint by
him against Sunil Sidhant of Atul Company filed in the
court of Judicial Magistrate First Class.
21. The witness denied that in the morning of 16.01.2002,
Jayesh Panwala has showed him the place of offence. The
witness denied the suggestion that in the panchnama it
had not got recorded of motor cycle lying at the place of
incidence and admitted that in the Panchnama it has
been recorded that the Motor Cycle was in the compound
of Saw-Mill.
22. The police are duty bound to select independent
unrelated person, and one free from bias to remain as
Panch. Here the Panch is a dear friend of the
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complainant. The Panch has criminal background. The
complainant through this Panch witness was also against
the accused of the present matter. The complainant had
referred to the name of Shahid who is the Panch of the
Panchnama in his complaint, whom he had met after
meeting Investigating Officer – Faldu prior to incident.
Inspite of that, PW3 – Shahid was taken as Panch of the
place of incident.
23. Balu Sudam Khalde v. State of Maharashtra, (2023)
13 SCC 365, would be a relevant judgment to refer for
appreciation of oral evidence:-
25. The appreciation of ocular evidence is a
hard task. There is no fixed or strait jacket
formula for appreciation of the ocular
evidence. The judicially evolved principles
for appreciation of ocular evidence in a
criminal case can be enumerated as under:
“I. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the Court to scrutinise the
evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is
against the general tenor of the evidence
given by the witness and whether thePage 36 of 83
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earlier evaluation of the evidence is shaken
as to render it unworthy of belief.
II. If the court before whom the witness
gives evidence had the opportunity to form
the opinion about the general tenor of
evidence given by the witness, the
appellate court which had not this benefit
will have to attach due weight to the
appreciation of evidence by the trial court
and unless there are reasons weighty and
formidable it would not be proper to reject
the evidence on the ground of minor
variations or infirmities in the matter of
trivial details.
III. When eyewitness is examined at length
it is quite possible for him to make some
discrepancies. But courts should bear in
mind that it is only when discrepancies in
the evidence of a witness are so
incompatible with the credibility of his
version that the court is justified in
jettisoning his evidence.
IV. Minor discrepancies on trivial matters
not touching the core of the case,
hypertechnical approach by taking
sentences torn out of context here or there
from the evidence, attaching importance to
some technical error committed by the
investigating officer not going to the root of
the matter would not ordinarily permit
rejection of the evidence as a whole.
V. Too serious a view to be adopted on
mere variations falling in the narration of an
incident (either as between the evidence of
two witnesses or as between two
statements of the same witness) is anPage 37 of 83
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unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be
expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness
is overtaken by events. The witness could
not have anticipated the occurrence which
so often has an element of surprise. The
mental faculties therefore cannot be
expected to be attuned to absorb the
details.
VIII. The powers of observation differ from
person to person. What one may notice,
another may not. An object or movement
might emboss its image on one person’s
mind whereas it might go unnoticed on the
part of another.
IX. By and large people cannot accurately
recall a conversation and reproduce the
very words used by them or heard by them.
They can only recall the main purport of the
conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to exact time of an incident, or
the time duration of an occurrence, usually,
people make their estimates by guesswork
on the spur of the moment at the time of
interrogation. And one cannot expect
people to make very precise or reliable
estimates in such matters. Again, it
depends on the time-sense of individuals
which varies from person to person.
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XI. Ordinarily a witness cannot be expected
to recall accurately the sequence of events
which take place in rapid succession or in a
short time span. A witness is liable to get
confused, or mixed up when interrogated
later on.
XII. A witness, though wholly truthful, is
liable to be overawed by the court
atmosphere and the piercing cross-
examination by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The subconscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful and honest account of the
occurrence witnessed by him.
XIII. A former statement though seemingly
inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement
has the potency to discredit the later
statement, even if the later statement is at
variance with the former to some extent it
would not be helpful to contradict that
witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat [Bharwada Bhoginbhai Hirjibhai
v. State of Gujarat, (1983) 3 SCC 217 : 1983
SCC (Cri) 728 : AIR 1983 SC 753] , Leela
Ram v. State of Haryana [Leela Ram v.
State of Haryana, (1999) 9 SCC 525 : 2000
SCC (Cri) 222 : AIR 1999 SC 3717] and
Tahsildar Singh v. State of U.P. [Tahsildar
Singh v. State of U.P., 1959 SCC OnLine SC
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17 : AIR 1959 SC 1012] ]
24. The complainant is an advocate by profession, he knows
the provision of law, so would have certainly have the
knowledge of giving right history to the Doctor from
whom he received treatment.
25. PW1 – complainant – Ziyauddin Kazi was having his
practice as advocate for last eight years in Valsad Court.
On 15.1.2002, he had reached the Court in time and after
completing his work at 12:30 in the afternoon, he had
gone to Atul Police Station for his work on his motorcycle
bearing registration no. GJ-15 – AA-5787, where he met
Police Sub-Inspector – Shri Faldu (PW6) and while he
waited for his work at that time, C.P.I. – Shri Vaghela met
him.
26. At 2:45 p.m., he went to visit his friend – Shahid PW3
residing at Atul and he was with this friend till 4.45 p.m.
and again came back to Atul Police Station and left
immediately to return to Valsad.
27. The unavoidable fact recorded is a mystery as to why the
complainant had to visit Atul Police Station, he had even
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met CPI – Vaghela, then again he went to Atul Police
Station. The evidence of the complainant proves that
prior to the incident, he had met the Investigating Officer
of this matter PW6 – Shri Faldu. He had visited Atul Police
Station twice on that day. From 12:30 p.m. to almost
about 2:45 p.m., the complainant was at Atul Police
Station. The complainant is not giving his cause to visit
the Police Station twice prior to the alleged incident. He
also does not clarify why he met PW3 his friend who had
been selected as Panch of the place of incident.
28. Regarding the incident, the complainant stated that at
about 5 O’Clock, he took a turn on his motorcycle at a
place near Ambamata Temple at Atul – Valsad Highway
Cross, at that time, one jeep had come behind him. The
jeep driver had cornered him on the road side and when
he saw in the jeep, were Izhar (A2) and Bhuriyo, Izhar
(A2) was driving the jeep. He perceived that to kill him,
the jeep was pushed towards him, so by taking a turn, he
tried to run away on the motorcycle towards Atul Police
Station. The complainant stated that he may have
traveled about 15 feet and then there was another black
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colour jeep bearing registration no. GVS – 9996, which
the complainant stated that it was of the ownership of
Advocate Naim Kazi. The jeep came near to him from
opposite side, and the left side door of the jeep was
opened and as the jeep side door struck the motorcycle,
he fell down. The complainant – witness stated that from
the jeep, Nasim Fakru, Wasim Fakru and Wasim Nasim
alighted down, and from the earlier jeep, Izhar and
Bhuriya came down. So, in total, according to the
complainant, there were five persons present there,
except the names of Nazim Fakru, Wasim Nazim and
Izhar, none of the other two names get connected to the
four accused, who were tried. Even the names of Nazim
Fakru, Wasim Fakru and Izhar had not been stated as per
the names of the accused recorded in the trial, which
were (i) Nasimuddin Fakruddin Kazi, (ii) Wasimuddin
Nasimuddin Kazi, and accused (iv) Izharuddin Nasimuddin
Kazi, and the one another named is the (iii) accused
Aheteshamuddin Nasimuddin Kazi.
29. The complainant – witness stated that in the hands of
Nazim, there was an iron pipe, while rest of them had
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wooden log in their hands who all had started beating
him. The witness stated that Nazim exhorted saying that
today he should not be left alive and thereafter, gave
blows with the iron pipe on his head, but since he had
worned the helmet and as he has raised his hand, he got
injured at his hands. The witness also stated that Nazim
had pulled down his helmet and gave a second blow on
his head and to resist the blow, he had raised his left
hand and he suffered injury on the left hand, which got
fractured. Rest of the accused had beaten him on
different parts of his body and gave blow on the ankle of
both legs. The witness stated that as was 5 O’Clock in the
evening and the workers from Atul Company had left the
working place, so many had gathered there and
therefore, the assailants had ran away, while running
away from the place, Nazim and Izhar verbally abused
him and had threatened him that if he would file any
complaint, they would do away with his life. The witness
stated that they had escaped in the jeep. The witness
does not recollect registration number of the jeep, which
was driven by Izhar. The witness further stated that the
persons gathered there included Jayesh Panwala the
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Clerk of Vipul Kapadia, and as he knew him and
therefore, along with others, Jayesh had taken him in
rickshaw to Vijay Khatri’s hospital. From the hospital, he
had given a complaint.
30. Jayesh Hiralal Panwala was examined as PW2 who stated
that he was having a job with Vipulbhai Vakil since last 19
years as a Peon. Thereafter, he started working as a Clerk
and at the time of deposition, he stated that he was
working as Computer Operator. On the day of incident at
about 3.30, he had gone to Sub-Registrar Office at Pardi
on his TVS Scooty. It was 15.1.2002 and he returned from
the office at 4:45, at the place of incident, he had
reached at about 5 or 5:15. The witness stated that the
place of incident was opposite the compound of
Chandrika Vijay Mills and when he reached the place, he
had seen the crowd of people and in the crowd, he had
seen Zahubhai lying down bleeding. Since Zahubhai was
a lawyer, he knew him. The witness stated that the injury
sustained by Zahubhai was on his legs, on the ground a
watch had fallen, which he returned back to Zahubhai,
the scooter of Zahubhai was lying on the side, he does
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not remember the scooter registration number. He stated
that since Zahubhai was injured, out of humanity, he had
got him admitted to Dr. Vijay Khatri’s hospital taking him
by rickshaw. He had taken the assistance of Paritosh
Bhatt to make Zahubhai sit in the rickshaw. The witness
stated that he had not known anything about the
incident. He had not inquired anything from injured
Zahubhai about the incident. The police has recorded his
statement.
31. This witness is a Clerk of an advocate. He had not seen
the accused at the place of the incident, when he had
reached the place, there was crowd and Zahubhai –
complainant was lying down bleeding and his scooter was
on one side. The witness, though being a Clerk to the
advocate, had not inquired about the incident from the
complainant and he states that he had not known
anything about the incident. It becomes strange that the
injured himself had not informed this witness about the
assailant of which one of them was an advocate. This
Clerk of the advocate, if he knows Zahubhai, he would
certainly have known accused no.1 as advocate.
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32. The complainant has stated in his evidence that he had
started his practice with accused no.1 – Nayan Kazi in
partnership for about four years and after that, leaving
the joint practice, he had opened his office at Vapi with
Rashidbhai Shaikh. He stated that because of that
enmity, he was beaten. His client who was his friend
Shahidhusain Mohammadhussain Shaikh – PW3 was also
threatened outside the Court and for that reason, Shahid
had given a complaint and in connection to that
complaint, Izhar and Nayan Kazi were arrested by the
police. The witness stated that harbouring suspicion that
the complainant had got the complaint filed through
Shahid and therefore, he was assaulted. In the present
matter, he had given the complaint before P.I. Shaikh of
Valsad City Police Station. The complaint was placed in
evidence at Exh.39. He further stated that if the weapons
are shown to him, he could identify them.
33. The crucial aspect in the investigation was that neither
the weapons were recovered, nor the helmet of the
complainant, nor his motorcycle, nor the clothes of the
complainant were seized. Even the vehicles alleged to be
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two jeeps, none of them had been seized, neither any
Panchnama had been drawn of the jeep, nor there is any
Panchnama of the motorcycle.
34. In the cross-examination of the complainant, it could be
elicited that in the year 1999, there was some complaint
against the complainant of assaulting the police. The
complainant was arrested and released on bail. The
complainant does not remember, apart from that, how
many cases were filed against him, nor does he
remember the interval between the complaints.
35. He further in the cross examination stated that on the
day of the incident, he was not having his mobile phone
with him. He denied of informing PSI Faldu at Atul Police
Station through his mobile phone. The witness as a
complainant stated that on the day of the incident, twice
he had gone to Atul Police Station for his professional and
personal work. The complainant also stated that he had
given names of the assailants to Dr. Vijay Khatri and also
stated the history before the Doctor. He does not
remember as to what Dr. Vijaybhai had done about the
names and the history. He does not know whether the
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Doctor had informed the police accordingly. He does not
remember the time when he was admitted at the
hospital, nor the time of the treatment. According to the
witness, Doctor had not given him any sedative or
painkiller injection. Within half an hour or an hour
according to him after the treatment, the police had
come. It was dusk and lights were on.
36. He stated that to record his complaint, Police Inspector
Shaikh and his writer had personally come at the
hospital. He does not remember whether others were
present at that time. He stated that Police Inspector
Shaikh had not inquired from him about the phone call of
Dr. Vijay Khatri.
37. In the cross-examination, when complainant was asked
about the place of incident, the witness stated that
opposite the place of incident, there was a temple and a
bus stand and at a distance of 50 ft., from the east side,
there was a house. He stated that when he took “U” turn
to go towards Atul, at that time, another jeep had come.
He denied that at the time of the incident, there were
divider on the road. He denied of any such divider on the
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road from Atul to Valsad road. After taking the turn, he
had traveled the distance of 15 ft. He stated that the jeep
was brought straight, directly towards him, while denied
the suggestion that the front part of the jeep had come
opposite to his steering. The jeep was running towards
Valsad and the left side door was opened while he was
traveling towards Atul on the right side of the road. He
denied the suggestion that after traveling 15 ft. by taking
the turn on his motorcycle, he was on the wrong side,
answering the same, he reaffirmed that he was on the
right side of the road.
38. The controversy, which has been created is about the
place of incident, which could have been proved by
getting a sketch drawn, which has not been done by the
Investigating Officer. The Investigating Officer who had
taken the further investigation from PW6 – Ramesh
Dhanjibhai Faldu, was examined as PW7 – Bhimbahadur
Jangbahadur Sahi who in his deposition has stated about
the arrest made of the accused. The Investigating Officer
stated that since the accused had not produced both the
jeeps as well as the weapons and therefore, a remand
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was asked from the Court, which came to be granted. He
also stated that the fifth accused – Nazimuddin Fakruddin
Kazi appeared as per the order of the Sessions Court and
that fact was informed to the learned Judicial Magistrate
First Class as well as to the learned Additional Sessions
Judge, Valsad by a Yadi. Thereafter, he had also given a
Yadi to RTO, Valsad to convey the name and address of
the owner of the jeep, bearing registration no. GBS –
9996. He had often raided the house of the accused and
their dependents. On 18.04.2002, in Misc. Application no.
1763 of 2002, one day remand was ordered and on
08.05.2002, all the four accused appeared before him at
8.05 hrs., so he made their arrest and informed about the
arrest to all the Police Station of the District. He has
recorded the statements of all the four accused and as
per the order of the High Court, the accused was sent to
Court custody and against wanted accused – Nazimuddin
Fakruddin Kazi, warrant under Section 70 of the Code of
Criminal Procedure, 1973 was processed to be issued and
on 29.04.2003, a charge-sheet was filed against all the
accused.
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39. In the cross-examination PW7, the Investigating Officer –
Bhimbahadur Sahi, admits that the weapons are
important evidence of the cases. Inspite of the remand of
the accused, he could not procure the weapons. The
Investigating Officer denied the suggestion that though
no offence had occurred under Section 307 IPC, inspite of
that, false charge-sheet was filed. The Investigating
Officer also stated that he had inquired about the
ownership of the vehicle. Jeep GBS – 9996 was of the
ownership of Naimuddin Fakruddin Kazi who was not
produced along with the charge-sheet. He had not
recorded the statement of the RTO officer with regard to
the same vehicle, nor the said vehicle was taken in
custody. The witness stated that since both the vehicles
could not be found and therefore, he had not seized
them. The Investigating Officer denied the suggestion
from the side of the accused that the jeep no. GBS – 9996
was not of the ownership of Naimuddin Fakruddin Kazi
and also stated that Naimuddin Fakruddin Kazi is by
profession an advocate and he had arraigned him as
accused.
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40. This Investigating Officer also stated that he had not got
the map of the place of incident prepared. The place of
incident is adjoining N.H. no.8 and it was a State
Highway. The FSL report shows that only blood stained
soil was sent for examination, the Scientific Officer of
Regional Forensic Science Laboratory, Surat had
concluded of the presence of blood. The Investigation
Officer was rather required to take the Panchnama of the
two-wheeler of the complainant and should have called
the local FSL to examine the two-wheeler of the
complainant to find out the presence of any colour or
metal scrap of the jeep involved. It is highly
unfathomable that the Investigating Officer could not
have found the jeep of the practicing lawyer. The
statement of the RTO Officer was recorded and it was the
suggestion from the accused that the jeep did not belong
to accused no.1. The Investigating Officer, thus, was
required to prove the ownership of the jeep alleged to
have been involved. The complainant could state that
there were two jeeps, but the evidence with regard to the
alleged jeeps could not be brought on record, nor could
be proved by any FSL report.
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41. PW6 as Investigating Officer Rameshbhai Dhanjibhai
Faldu stated that when he was at Atul Police Station as
PSI, on 15.1.2002, he received “0” number complaint
from Valsad City Police Station, which was filed by the
complainant Ziyauddin Vakil against the accused. Since
the offence was registered at Atul Police Station, he had
started the investigation. The Panchnama of the place of
offence was drawn, which he identified at Exh.49. He
stated that after recording the statement of witnesses, he
had searched many places for the accused. From the
place of incident, he directed to collect samples and sent
for FSL report. The communication and the report were
put in evidence at Exh.70 and 71. No further evidence
has been led in the examination-in-chief of the
Investigating Officer – Shri Faldu.
42. From the side of the accused no.1, when cross-examined,
the Investigating Officer stated that after taking over the
investigation, when he drew the Panchnama of the place,
he had not seized any motorcycle or helmet from there.
He had read the complaint prior to starting the
investigation and it had come to his knowledge that the
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complainant at the time of the incident had worn helmet.
The witness stated that he had not inquired about the
helmet from the complainant and had not seized the
helmet from the place of incident as no such helmet was
found there. The Investigating Officer affirmed that
surrounding the place of incident, there was Ambamata
Temple and many shops and houses. Having considered
the time of incident, he could say that there would have
been a larger frequency of vehicle, as well as of people.
He denied the suggestion that he had not taken any
independent Panchas from the place of incident. He
denied the suggestion that the Panch – Sahid was friend
of the complainant. The Investigating Officer affirmed,
that in the complaint, the complainant had narrated that
he had gone to visit Sahid at his house.
43. In the cross-examination from the side of the accused
no.2, it had been recorded that the Investigating Officer
had not recorded the complaint of the complainant after
he received the “0” number complaint from Valsad Police
Station. The witness affirmed that on that day prior to the
incident, the complainant had visited Atul Police Station
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around 11 in the morning. He had not recorded
statement of any person in connection with the visit of
the complainant at 10-11 in the morning at the Police
Station. The Investigating Officer stated that he does not
know as to why the complainant had come to the Police
Station. The Investigating Officer also stated that at the
place of the incident, there was complainant’s
motorcycle. He has not seized the motorcycle. He had
also not seized the clothes of the complainant. The
Investigating Officer stated that at the time when the
Panchnama was drawn, he had not felt that the
motorcycle was an important evidence to the matter. He
had not inquired about the cause of the quarrel. The
Investigating Officer stated that it was not disclosed
during the time of the investigation, of complainant
possessing a mobile phone.
44. From the side of the accused no.3, the Investigating
Officer was cross-examined, wherein he stated that
generally, the statements of all those persons who would
be referred in the complaint, would be recorded. He does
not remember the exact time of visit of the complainant
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between morning 10 to 1 in the afternoon at the Police
Station. The Investigating Officer stated that when the
complainant had come, at that time, along with
Investigating Officer was CPI – Vaghela Saheb.
45. From the side of accused no.4, when the Investigating
Officer was cross-examined, he stated that he had not
made any efforts to get the map or sketch of the place of
incident prepared since he did not feel the necessity to
do so. He had not procured any documents regarding the
ownership of motorcycle. He had not recorded the
statements of employer or employee of saw mill. The
witness stated that he had recorded statement of
Rameshbhai Jaganbhai of the saw mill and had recorded
the statement of factory owners near the place of
incident.
46. The crucial aspect, thus, becomes noticeable from the
evidence of both the Investigating Officer that both of
them had not felt the necessity to draw the sketch of the
place of incident. The weapons which were alleged to be
used in the incident had not been recovered. The vehicles
in the form of motorcycle or both the jeeps were not
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seized and most important evidence, the clothes of the
complainant and his helmet were not seized during the
investigation. The defence has been put that it was a
case of accident and not assault. The only evidence that
could be brought by way of FSL report is the blood
cladded soil, where the evidence of the FSL does not
show the blood group of the human blood found on the
soil.
47. The complainant was confronted in the cross-examination
about his mobile phone, which he stated that on the day
of the incident, he was not having his phone and denied
of informing Atul Police Station, PSI Faldu through his
phone. The witness, as the complainant, was asked the
reason for visiting Atul Police Station, but he failed to
disclose the same, only by referring that, he had visited
the Police Station for his advocacy and personal reasons.
The incident occurs at a distance of one kilometer of Atul
Police Station. The complainant stated that he had not
inquired about his helmet and motorcycle and stated that
he has no occasion to visit Atul Police Station thereafter
to inquire about the helmet and motorcycle. The police
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had not asked him about his helmet. The witness stated
that it was full helmet with plastic covering on the side
before his eyes and there was a lock system beneath the
chin. The witness also stated that when accused – Nazim
had pulled his helmet, at that time, he had not sustained
any injuries since the helmet belt was not fastened. He
does not know the owner of the rickshaw who had carried
him to the Hospital nor recollects the person driving the
rickshaw. Later on, he had not inquired about it, neither
the police had asked him about the rickshaw.
48. In the cross-examination, the complainant was asked
about his homely relation with Shahidhussain
Mohammadhussain who has been examined as a Panch
Witness PW3, which the complainant denied. The
complainant, in his own deposition as well as in
complaint, had stated that after visiting Atul Police
Station, he had gone to his friend’s house at Atul and he
named his friend as Shahid. Inspite of that evidence on
record, he denied. He denied the suggestion that he had
no enmity with the accused. The complainant stated that
his profession as advocate was with Naim Kazi and he is
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junior of S.M. Kazi. He denied the suggestion that the
injury he sustained was because of the accident.
49. In the further cross-examination from the side of the
accused no.2, The complainant stated during that period
of 2-3 hours between the incident and the recording of
the complaint, he had remained conscious throughout
and was in a fit state of mind to understand the nature
and consequences. In the rickshaw, except Jayesh
Panwala and the driver, no other person was present. The
witness also affirmed that while giving the complaint, he
had not made mention therein of informing about the
incident to any other person. He does not remember
whether his wife had visited him in the Hospital when was
in the ICU.
50. In the further cross-examination, the complainant stated
that when he was beaten, there were persons present
there. He does not remember whether they were cart
holders or shop keepers at the place of incident. The
incident took place within 10 to 15 minutes, at that time
he had shouted for help, but none had come forward. He
was beaten for about 10 to 15 minutes with the sticks on
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different parts of the body. He sustained injury, apart
from his legs, on different parts of his body and there
were signs of abrasions on his body. He had not seen the
injuries of his body prior to reaching the Hospital, but had
seen them prior to the treatment. He also got injured on
the back side of his palm. His clothes were covered in
blood. He has no information whether his clothes were
seized by the police. He stated that he has not received
back his clothes. The police had come to return his
motorcycle at home. The complainant does not know
whether there were any damage to his motorcycle apart
from scratches. He denied the suggestion that since he
had good relations with the police and therefore, the
police had come to drop his motorcycle straight at his
house. The complainant further stated that he had
without any cause visited Atul Police Station twice on that
day. He does not remember whether the police had
brought helmet at his house. He was knowing Jayesh
Panwala since 4 years prior to the incident.
51. The complainant stated that there was no straight dash
with his motorcycle, and after he fell down, no attempt
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was made to drive the jeep over him. He denied of saying
that within that 10 minutes period, there were all
circumstances to run the jeep over him. He was
suspicious of assault when the first jeep had come. The
witness stated that from the place of incident, the
distance of Atul Police Station was of one kilometer and
he had made attempt to rush his motorcycle to escape
from the place, but clarified that before could do so, the
second jeep had come and the persons in the jeep had
stopped him. The left side door of the jeep was opened to
make him fall down, but no attempt was made to drive
the jeep over him.
52. He stated that he has no evidence to show the
partnership with Nayan Vakil except the Vakalatnama in
his name. He was not filing income-tax returns. He stated
that he was sitting with Nayan Vakil since he was his
relative. The cause of quarrel, the complainant stated,
was his opening the office at Vapi with Rashid and the
cause to beat him was the threat by Nayan Vakil through
friend Shahid and further clarified that the accused or
Naim had not beaten Shahid.
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53. The complainant denied the suggestion that because of
the internal family dispute, a false complaint has been
given and that he sustained injury only during accident.
On further cross-examination from the side of the
accused no.3, the witness stated that he had not given
any proof regarding his ownership of the motorcycle. He
denied the suggestion that he has not got it recorded in
his complaint of motorcycle being of his ownership. He
stated that the motorcycle was not of his ownership but it
belonged to his brother.
54. In the cross-examination from the side of the accused
no.4, the witness stated that he had gone from Valsad to
Atul Police Station at 12:30 and had stayed there till
02:45. He has gone to the Police Station for his own
personal reasons but he does not want to disclose the
same. Shahidhussain was his client and therefore, he had
gone to his house. Regarding the place of incident, the
complainant was asked that within one minute, there was
a frequency of 10 vehicles to pass on road, to which, he
feign his ignorance. He also does not know that the place
of incident was old highway no.8 which was at that time
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known as State Highway. According the witness, from the
place of incident, the national highway was at the
distance of 2 kms. He does not know that near the place,
there was a saw mill and besides the bus station, there
was one citizen bakery. He does not know that near the
place of incident, there is a dispensary of Dr. Maganbhai
Desai. He denied the suggestion that a false complaint
has been lodged and that he was not assaulted by pipes
or sticks.
55. In the case of Balu Sudam Khalde v. State of
Maharashtra, (2023) 13 SCC 365, the principles for
appreciation of injured witness has been laid down for the
Court to keep in mind. Paragraphs 26 and 27 become
relevant, which read as under:-
26. When the evidence of an injured
eyewitness is to be appreciated, the
undernoted legal principles enunciated by
the courts are required to be kept in mind:
26.1. The presence of an injured
eyewitness at the time and place of the
occurrence cannot be doubted unless there
are material contradictions in his
deposition.
26.2. Unless, it is otherwise established by
the evidence, it must be believed that an
injured witness would not allow the realPage 63 of 83
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culprits to escape and falsely implicate the
accused.
26.3. The evidence of injured witness has
greater evidentiary value and unless
compelling reasons exist, their statements
are not to be discarded lightly.
26.4. The evidence of injured witness
cannot be doubted on account of some
embellishment in natural conduct or minor
contradictions.
26.5. If there be any exaggeration or
immaterial embellishments in the evidence
of an injured witness, then such
contradiction, exaggeration or
embellishment should be discarded from
the evidence of injured, but not the whole
evidence.
26.6. The broad substratum of the
prosecution version must be taken into
consideration and
discrepancies which normally creep due to
loss of memory with passage of time should
be discarded.
27. In assessing the value of the evidence
of the eyewitnesses, two principal
considerations are whether, in the
circumstances of the case, it is possible to
believe their presence at the scene of
occurrence or in such situations as would
make it possible for them to witness the
facts deposed to by them and secondly,
whether there is anything inherently
improbable or unreliable in their evidence.
In respect of both these considerations,
circumstances either elicited from those
witnesses themselves or established by
other evidence tending to improbabilise
their presence or to discredit the veracity of
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their statements, will have a bearing upon
the value which a court would attach to
their evidence. Although in cases where the
plea of the accused is a mere denial, the
evidence of the prosecution witnesses has
to be examined on its own merits, where
the accused raise a definite plea or put
forward a positive case which is
inconsistent with that of the prosecution,
the nature of such plea or case and the
probabilities in respect of it will also have to
be taken into account while assessing the
value of the prosecution evidence.
56. There can be no denial to the proposition of law that the
evidence of injured witness has greater evidentiary value,
on the ground that the witness to the occurrence himself
got injured in the incident. The injured witness of the
incident guarantees his presence at the scene of crime.
There is always an assumption that the injured witness
would not spare his actual assailant in order to falsely
implicate someone. Here, in the present case, the enmity
between both sides runs deep. The professional rivalry
with criminal background of the complainant and his
friend Shahid – PW3 put the Court on guard to assess
false implication.
57. In the case of Abdul Sayeed v. State of M.P., (2010)
10 SCC 259, it was observed by Hon’ble Supreme Court
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as under:
28. The question of the weight to be
attached to the evidence of a witness that
was himself injured in the course of the
occurrence has been extensively discussed
by this Court. Where a witness to the
occurrence has himself been injured in the
incident, the testimony of such a witness is
generally considered to be very reliable, as
he is a witness that comes with a built-in
guarantee of his presence at the scene of
the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone. “Convincing evidence is required
to discredit an injured witness.” [Vide
Ramlagan Singh v. State of Bihar [(1973) 3
SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC
2593] , Malkhan Singh v. State of U.P.
[(1975) 3 SCC 311 : 1974 SCC (Cri) 919 :
AIR 1975 SC 12] , Machhi Singh v. State of
Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri)
681] , Appabhai v. State of Gujarat [1988
Supp SCC 241 : 1988 SCC (Cri) 559 : AIR
1988 SC 696] , Bonkya v. State of
Maharashtra [(1995) 6 SCC 447 : 1995 SCC
(Cri) 1113] , Bhag Singh [(1997) 7 SCC
712 : 1997 SCC (Cri) 1163] , Mohar v. State
of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri)
121] (SCC p. 606b-c), Dinesh Kumar v.
State of Rajasthan [(2008) 8 SCC 270 :
(2008) 3 SCC (Cri) 472] , Vishnu v. State of
Rajasthan [(2009) 10 SCC 477 : (2010) 1
SCC (Cri) 302] , Annareddy Sambasiva
Reddy v. State of A.P. [(2009) 12 SCC 546 :
(2010) 1 SCC (Cri) 630] and Balraje v. State
of Maharashtra [(2010) 6 SCC 673 : (2010)
3 SCC (Cri) 211] .]
29. While deciding this issue, a similar view
was taken in Jarnail Singh v. State of Punjab
[(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107]Page 66 of 83
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, where this Court reiterated the special
evidentiary status accorded to the
testimony of an injured accused and relying
on its earlier judgments held as under :
(SCC pp. 726-27, paras 28-29)
“28. Darshan Singh (PW 4) was an injured
witness. He had been examined by the
doctor. His testimony could not be brushed
aside lightly. He had given full details of the
incident as he was present at the time
when the assailants reached the tubewell.
In Shivalingappa Kallayanappa v. State of
Karnataka [1994 Supp (3) SCC 235 : 1994
SCC (Cri) 1694] this Court has held that the
deposition of the injured witness should be
relied upon unless there are strong grounds
for rejection of his evidence on the basis of
major contradictions and discrepancies, for
the reason that his presence on the scene
stands established in case it is proved that
he suffered the injury during the said
incident.
29. In State of U.P. v. Kishan Chand [(2004)
7 SCC 629 : 2004 SCC (Cri) 2013] a similar
view has been reiterated observing that the
testimony of a stamped witness has its own
relevance and efficacy. The fact that the
witness sustained injuries at the time and
place of occurrence, lends support to his
testimony that he was present during the
occurrence. In case the injured witness is
subjected to lengthy cross-examination and
nothing can be elicited to discard his
testimony, it should be relied upon (vide
Krishan v. State of Haryana [(2006) 12 SCC
459 : (2007) 2 SCC (Cri) 214] ). Thus, we
are of the considered opinion that evidence
of Darshan Singh (PW 4) has rightly been
relied upon by the courts below.”
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58. The defence had been put that the complainant
sustained injuries by way of motor accident. Dr. Khatri
could also affirm that the injuries suffered by the
complainant could occur because of accident. The Doctor
has ruled out the possibility of indiscriminate blows on
the body of injured. No injuries were recorded in the form
of abrasion or CLW or other parts of body, except the
fractures referred.
59. The case of Jarnail Singh v. State of Punjab, (2009)
9 SCC 719 was taken in view, to consider the reiteration
of judicial approach to give special value to the testimony
of injured accused. The law was summarized in the case
of Abdul Sayeed (supra) in Paragraph 30:-
30. The law on the point can be
summarised to the effect that the
testimony of the injured witness is accorded
a special status in law. This is as a
consequence of the fact that the injury to
the witness is an inbuilt guarantee of his
presence at the scene of the crime and
because the witness will not want to let his
actual assailant go unpunished merely to
falsely implicate a third party for the
commission of the offence. Thus, the
deposition of the injured witness should be
relied upon unless there are strong grounds
for rejection of his evidence on the basis ofPage 68 of 83
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major contradictions and discrepancies
therein.
60. Here the evidence of the complainant as an advocate is
against his co-partner in the profession of advocacy. The
complainant has made the advocate and all his three
sons accused in the matter. The case is also drawn
against one advocate Naimuddin Fakruddin Kazi shown
as absconder to invoke the provision of Sections 143,
148, 149 of IPC. According to PW7, the Investigating
Officer PSI – Bhimbahadur Jahi the jeep no. GBS – 9996
was of the ownership of Naimuddin Fakruddin Kazi. The
charge refers to the enmity, as one case was filed against
Naim Kazi at Valsad Police Station. The charge framed by
the learned Sessions Judge does not refer to Naimuddin
Fakruddin Kazi.
61. The conduct of the complainant for the whole day creates
doubt, to the complaint, as alleged to have stated. Before
the incident, twice the complainant was with PW6 PSI of
Atul Police Station – Shri Ramesh Damjibhai Faldu. At first
time, the complainant was with PW6 from 12:30 in the
afternoon till 2.45 p.m. during that period, the
complainant even meets C.P.I. Shri Vaghela. The
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complainant does not want to disclose the reason for
meeting the PW6 – Shri Faldu. Again, he visits Shri Faldu
at 5 P.M. at Atul Police Station after visiting his friend
Shahid (PW3). The complainant was with PW3 for the
period almost 2:45 p.m. to 5:00 p.m. excluding the transit
period. The incident is the place one kilometre away from
Atul Police Station. Neither PW6 PSI Kaldu, nor PW3 the
friend PW3 discloses the reason for meeting. The
complainant had flatly refused to disclose the cause of
meeting Shri Faldu on that day prior to the incident.
62. The complaint came to be recorded by PW5 – Gulab
Saddik Abdul Rahim Shaikh since he visited the hospital
as Doctor Vijay Khatri had given written information to
Valsad City Police. The complaint was recorded by PW6 at
Dr. Khatri’s hospital as “0” number offence had taken
place in the jurisdiction of Atul Police Station.
63. Before Dr. Khatri, the complainant did not disclose the
name of the assailants. The complaint records incessant
blows with wooden logs and pipe all over the body,
however, no such external injuries as complained gets
reflected in the testimony of Dr. Khatri or his certificate
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Exh.55.
64. The importance of ocular evidence and medical evidence
has been referred in Abdul Sayeed (supra), which reads
as under:-
39. Thus, the position of law in cases where
there is a contradiction between medical
evidence and ocular evidence can be
crystallised to the effect that though the
ocular testimony of a witness has greater
evidentiary value vis-Ã -vis medical
evidence, when medical evidence makes
the ocular testimony improbable, that
becomes a relevant factor in the process of
the evaluation of evidence. However, where
the medical evidence goes so far that it
completely rules out all possibility of the
ocular evidence being true, the ocular
evidence may be disbelieved.
65. The complaint was with the fact that the accused were
trying to kill him, while in the cross-examination, the
complainant has not supported or substantiated that
intention of the accused. The weapon with which the
injuries were alleged to have been caused are not coming
on record. The clothes of the complainant, which could
have supported the story of indiscriminate blows with
pipe and wooden logs by the accused, were not produced
by the complainant. Even Panchnama of the
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complainant’s motorcycle GJ-15 – AA-5787 was not
recorded, while PW2 – Jayesh Panwala said that he had
seen complainant’s scooter on the side. PW2 is a Clerk to
an advocate, he would certainly have known the
difference scooter and motorcycle. The helmet of
complainant does not find place during the trial nor the
jeeps of the accused involved in the incident are proved.
PW2 – Jayesh Panwala and PW4 – Dr. Khatri were not
informed about the incident, nor about the assailants.
66. The glaring fact is that after the “0” number complaint at
Valsad City Police Station, registration of the same at Atul
Police Station is not proved by PW6 – Faldu by any
document, PSI Faldu could only state that the offence
was registered at Atul Police Station.
67. Exh.59 and 60 are the communications of Valsad Police
Station Exh.60 is by G.A. SHaikh PW5 as Police Inspector,
Valsad Police Station, to Police Station office at Valsad
Police Station of having recorded the complaint and
instructing to register as “0” number complaint, to be
sent to Atul Police Station. The time of recording the
complaint is not stated in Exh.60, nor the complaint
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Exh.39 dated 15.1.2002 reflects any time on it of its
being recorded.
68. Exh.59 is written by A.S.I. Shanker Raghubhai, Valsad
Police Station City to Police Sub-Inspector, Atul Police
Station with Javak no. 297/02 of sending criminal register
no. 0/02.
69. At what time that complaint got registered at Atul Police
Station does not get clear on record, however, the
mention of the C.R. no. 3/02 could be found in the
communication by the FSL to Police Sub-Inspector Atul.
70. The investigation was not thorough. Investigation by both
the Investigating Officers appears to be shady. Except
the soil stained with blood picked up from the place of
incident, there is no other physical evidence. The FSL
report also does not prove that the blood group on the
soil was of the complainant or any of the accused.
71. Testimony of both Investigating Officer – PW6 – Shri Faldu
and PW7 – Shri Sahi appears to be tainted with bias. The
complainant’s testimony shows his close relation with
PW6. Even PW7 had gone to such an extent that he often
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raided the house of accused and their dependents for
Advocate Nazimuddin Kazi. Under Section 70 of the
Cr.P.C., warrant was issued who appeared by the order of
Sessions Court.
72. Ultimately, inspite of going to such an extent nothing was
brought on record as Muddamal article so much so that
the helmet weapons, vehicles, could not be found. The
clothes of the complainant were not seized. The FSL or
Panchnama report of the vehicle of the complainant
could have been brought on record.
73. In context of the above observation, of suspecting the
testimony of the witnesses and introducing false
elements into the stories at the instigation of the police,
the relevant observation made in the case of Dalip
Singh v. State of Punjab, AIR 1953 SC 364 in
Paragraph 26 requires a special mention, the said
observation is as under:-
26. Now what is the ground for suspecting
the testimony of these two witnesses? The
only other reason given by the learned High
Court Judges is that they have introduced a
false element into their story at the
instigation of the police in order to save thePage 74 of 83
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“face” of the lambardars. But if that is so, it
throws a cloak of unreliability over the
whole of their testimony and, therefore,
though it may be safe to accept their story
where the corroborative element of the
bloodstained clothes is to be found, it would
be as unsafe to believe, on the strength of
their testimony, that at least five persons
were present as it would be to accept that
the ones who have been acquitted were
present; and once we reach that conclusion
Section 149 drops out of the case.
74. Learned advocate Mr. Saurin Shah for the accused had
relied upon the judgment of Deepak Kumar v. Ravi
Virmani & Ors., reported in (2002) 2 SCC 737 to stress
upon the need of corroboration of testimony of interested
witness by evidence of an independent witness when
required.
75. Availability of independent witness of the place of
incident is non-deniable fact. The incident alleged to have
happened on highway, the place, where there were
workers of the mill, shop owner. The place was opposite a
temple. Not a single person from the place of incident
has been examined as witness. PW6 – Investigating
Officer stated that he recorded the statement of
Rameshbhai Jaganbhai of saw mill and statement of
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factory owner. None have been examined during the trial.
Both the Investigating Officer and PW3 even PW2 were as
per the record closely related to the complainant.
76. The appreciation of the evidence of related witnesses
was dealt with in the case of Bhaskarrao v. State of
Maharashtra, (2018) 6 SCC 591, wherein it was
observed as under:-
32. … It would be beneficial to recapitulate
the law concerning the appreciation of
evidence of related witness. In Dalip Singh
v. State of Punjab [Dalip Singh v. State of
Punjab, (1953) 2 SCC 36 : 1954 SCR 145 :
AIR 1953 SC 364 : 1953 Cri LJ 1465] , Vivian
Bose, J. for the Bench observed the law as
under: (AIR p. 366, para 26)“26. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and
that usually means unless the witness has
cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily,
a close relative would be the last to screen
the real culprit and falsely implicate an
innocent person. It is true, when feelings
run high and there is personal cause for
enmity, that there is a tendency to drag in
an innocent person against whom a witness
has a grudge along with the guilty, but
foundation must be laid for such a criticism
and the mere fact of relationship far from
being a foundation is often a sure
guarantee of truth. However, we are not
attempting any sweeping generalisation.
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Each case must be judged on its own facts.
Our observations are only made to combat
what is so often put forward in cases before
us as a general rule of prudence. There is
no such general rule. Each case must be
limited to and be governed by its own
facts.”
77. The person who was immediately available on the spot
was PW2 – Jayesh Panwala. He had seen the scooter of
the complainant lying aside. PW2 had seen a watch of the
complainant lying there, but not the helmet. PW2 gave
evidence, that the complainant was injured at the legs.
PW2 says of scooter but not of motorcycle. The
complainant was conscious throughout, inspite of that, he
had not said anything of the incident to PW2 who was
knowing the complainant as well as accused no.1. This
conduct of the complainant would become doubtful if
considered by way of appreciating the evidence of PW2-
Jayesh Panwala who becomes res gestae witness. In
Section 6 of the Evidence Act, principle of res gestae has
been explained. Reference with specific emphasis on the
case of Balu Sudam Kholde (supra) of Paragraphs 47,
48 and 49 becomes relevant to consider, which are
reproduced hereinbelow:-
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47. The reason for referring to the
aforesaid a piece of evidence is that PW 3
Nasir Rajjak Khan (Ext. 10) could be termed
as a res gestae witness. This principle of res
gestae is embodied in Section 6 of the 1872
Act:
“6. Relevancy of facts forming part of
same transaction.–Facts which, though
not in issue, are so connected with a fact in
issue as to form part of the same
transaction, are relevant, whether they
occurred at the same time and place or at
different times and places.”
48. In Sukhar v. State of U.P. [Sukhar v.
State of U.P., (1999) 9 SCC 507 : 2000 SCC
(Cri) 419] , this Court noticed the position of
law with regard to Sections 6 and 7,
respectively, of the 1872 Act thus : (SCC
pp. 511-12, paras 6-7)
“6. Section 6 of the Evidence Act is an
exception to the general rule whereunder
the hearsay evidence becomes admissible.
But for bringing such hearsay evidence
within the provisions of Section 6, what is
required to be established is that it must be
almost contemporaneous with the acts and
there should not be an interval which would
allow fabrication. The statements sought to
be admitted, therefore, as forming part of
res gestae, must have been made
contemporaneously with the acts or
immediately thereafter. The aforesaid rule
as it is stated in Wigmore’s Evidence Act
reads thus:
‘Under the present exception [to hearsay]
an utterance is by hypothesis, offered as anPage 78 of 83
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assertion to evidence the fact asserted (for
example that a car-brake was set or not
set), and the only condition is that it shall
have been made spontaneously i.e. as the
natural effusion of a state of excitement.
Now this state of excitement may well
continue to exist after the exciting fact has
ended. The declaration, therefore, may be
admissible even though subsequent to the
occurrence, provided, it is near enough in
time to allow the assumption that the
exciting influence continued.’
7. Sarkar on Evidence (Fifteenth Edition)
summaries the law relating to applicability
of Section 6 of the 1872 Act thus:
‘1. The declarations (oral or written) must
relate to the act which is in issue or
relevant thereto; they are not admissible
merely because they accompany an act.
Moreover the declarations must relate to
and explain the fact they accompany, and
not independent facts previous or
subsequent thereto unless such facts are
part of a transaction which is continuous.
2. The declarations must be substantially
contemporaneous with the fact and not
merely the narrative of a past.
3. The declaration and the act may be by
the same person, or they may be by
different persons e.g. the declarations of
the victim, assailant and bystanders. In
conspiracy, riot, the declarations of all
concerned in the common object are
admissible.
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4. Though admissible to explain or
corroborate, or to understand the
significance of the act, declarations are not
evidence of the truth of the matters
stated.'”
49. The rule embodied in Section 6 is
usually known as the rule of res gestae.
What it means is that a fact which, though
not in issue, is so connected with the fact in
issue “as to form part of the same
transaction” becomes relevant by itself. To
form particular statement as part of the
same transaction utterances must be
simultaneous with the incident or
substantial contemporaneous, that is, made
either during or immediately before or after
its occurrence.
78. The evidence of all the related witnesses, as specified
hereinabove, starting from complainant, Panch and both
the Investigating Officer, creates a doubt about the
actual genesis of the incident. Was it pre-planned to
falsely implicate the accused? Panch witness PW3 –
Shahid is a man who had filed complaints against police
officers. The police appears to be working under the
pressure of PW3 and the complainant. All the laxity in the
investigation, by not bringing material physical evidence
to corroborate the case of the complainant, can be
considered for the inference that no such evidence was
actually available. Weapons allegedly used have not been
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proved. The jeep used by the accused is not proved.
Height of the matter is the clothes of the complainant, his
helmet and his two wheeler are also not proved.
79. PW3 and the complainant had all the reasons to falsely
implicate the appellants – accused. The case, as put up
by defence of motor accident, cannot be ruled out when
the Doctor’s evidence do support the case of accident
with the injuries sustained by the complainant.
80. Jayesh Panwala was the res gestae witness, but
complainant had not informed him about the incident,
nor had given the names of the assailants who were even
known to Jayesh Panwala.
81. Next is Dr. Khatri, the complainant was conscious
throughout, still he had not informed the Doctor about
the history of the incident as well the name of the
assailant.
82. The prior meeting of the complainant with PW6 –
Investigating Officer – Faldu and PW3 – Shahid as
elaborated hereinabove appears to have laid the
planning to drag the accused in the case, to see them
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behind bars. And the planning is by the complainant as
Advocate, the Investigating Officer and the friend of
complainant examined as Panch who too had reason to
put the accused in jail, as Criminal Case was lodged
against him. The background of PW3 is criminal. The
presence of the complainant at the place of the incident
cannot be doubted, but the description of the event
shows that the complainant must have met with motor
accident. Jayesh Panwala’s testimony and Dr. Khatri’s
testimony corroborate the defence version of motor
accident, and when Jayesh Panwala and Dr. Khatri had no
knowledge about the incident and were not knowing the
names of the assailants, the complainant himself who
was harbouring enmity with the accused cannot be
believed. No reliance can be placed on the evidence of
complainant as injured witness to convict the accused.
The circumstances brought on record during trial leads to
give benefit of doubt to the accused, it can be said that
the prosecution has failed to prove the case beyond
reasonable doubt. The appreciation of evidence by the
Trial Court to the foregoing reason and to the proposition
of law as summarized hereinabove becomes erroneous.
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Since the prosecution failed to prove the case beyond
reasonable doubt, the appeals are required to be allowed
and when no case of conviction is proved, there would be
no case for enhancement of sentence and hence, the
revision of the complainant requires to be rejected.
83. In the result, Criminal Appeal no.1208 of 2006 and
Criminal Appeal no.1216 of 2006 are allowed. Criminal
Revision Application no.561 of 2006 is rejected. The
judgment and order of conviction and sentence dated
19.6.2006 passed by the learned Additional Sessions
Judge, Valsad in Sessions Case no.75 of 2003 is set aside.
The appellants-original accused are acquitted of all the
charges leveled against them. Bail bond stands
discharged. Registry is directed to send the record and
proceedings back to the concerned Trial Court forthwith.
(GITA GOPI,J)
MaulikPage 83 of 83
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