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2025 DIGILAW 840 (GUJ)

State Of Gujarat v. Sureshbhai Keshubhai Jethva

2025-08-02

DEVAN M.DESAI, NIKHIL S.KARIEL

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JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned APP Mr. Tirthraj Pandya for the appellant and learned advocate Mr. Umang Oza for the respondents – original accused. 2. By way of this acquittal appeal, the appellant – State has sought to challenge the judgment and order passed by learned Additional Sessions Judge, Junagadh in Sessions Case No.48 of 2004 more particularly, the learned Sessions Court having acquitted the respondents herein for the offences punishable under Sections 302 , 323, 504 and 114 of INDIAN PENAL CODE , 1860. It would appear that the case of the prosecution being on the date date of the accident i.e. 13.5.2004, at around 9.00 am, at the place in question i.e. village Dholav, an altercation had taken place between the families of the present respondents i.e. original accused and the deceased and her son more particularly with regard to the cleaning of Varranda and whereas the accused and the complainant being neighbors, and whereas as a result of such altercation, the allegation being that the original accused No.1 had assaulted the deceased i.e. the mother of the complainant, with the wooden log and whereas as a result of injuries sustained, the deceased Laxmiben had expired whereas the complainant Pravinbhai had also sustained injuries. 3. It appears that the prosecution had examined 11 witnesses, and whereas 10 documentary evidences had been placed before the learned Sessions Court. It would appear that except for the official witnesses, namely the treating doctor who had also carried out the postmortem, and the investigating officer, all other witnesses had turned hostile. The learned Sessions Court noticing the above fact, and coming to a conclusion that the prosecution could not establish the charges beyond reasonable doubt, had acquitted the present respondents - original accused. The State being aggrieved by such acquittal has approached this Court by way of this appeal. 4. Learned APP Mr. Pandya on behalf of the State would take this Court through the relevant statements. The State being aggrieved by such acquittal has approached this Court by way of this appeal. 4. Learned APP Mr. Pandya on behalf of the State would take this Court through the relevant statements. Learned APP would submit that while it is undoubtedly true that the complainant as well as the witnesses to the incident had resiled from their original statements given before the investigating officer and whereas they had been declared as hostile yet there was sufficient material before the learned Sessions Court in terms of the deposition of the treating Doctor as well as the deposition of the investigating officer to convict the accused. Learned APP would take this Court in detail through the deposition of the doctor who has inter alia deposed that the deceased had sustained three different injuries and whereas the doctor who incidentally had also conducted the postmortem, had opined that the cause of death as being cardiac failure on account of excessive blood loss upon the arteries being ruptured as well as the lungs of the deceased collapsed. Learned APP would submit that the doctor in question had clearly stated that at the time of getting treatment, the first informant had informed in the police report that the deceased as well as the complainant who incidentally had also sustained injuries on account of assault by the accused party, that is the respondent's herein. Learned APP would submit that the testimony of the doctor coupled with the PM note would clearly reveal that the deceased had sustained injuries on account of the assault, and whereas the assault having been carried out by the respondent's herein, the learned Sessions Court had gravely erred in not convicting the accused. Learned APP would also rely upon the deposition of the investigating officer who also has stood by the allegation that the deceased and the complainant had been assaulted by the accused party, more particularly, the investigating officer submitting that the statements had been recorded at the relevant point of time as had been submitted by the complainant. 5. On the other hand, learned Advocate Mr. Oza would vehemently oppose submission of the Learned APP. Learned Advocate Mr. 5. On the other hand, learned Advocate Mr. Oza would vehemently oppose submission of the Learned APP. Learned Advocate Mr. Oza would submit that the learned Sessions Court had gone through the evidence and had come to a conclusion that the prosecution had failed to establish that the accused party had committed the crime in question beyond reasonable doubt, and whereas under such circumstances, learned advocate would request this Court not to interfere. 6. Heard learned advocates for the respective parties and perused the documents on record. 7. This Court would crave leave to refer to a recent decision of the Honorable Supreme Court in the case of Mallappa and others v. State of Karnataka reported in 2024(3) SCC 544 , this Court has also relied the said decision in Criminal Appeal No.506 of 2001 dated 5.7.2025. Paragraph Nos.7, 7.1 and 7.2 being relevant for the present purpose are reproduced herein below for benefit. “7. Having heard learned advocates for the respective parties, at the outset, before examining the submissions made by learned advocates for the respective parties, this Court would like to reiterate the principles which are to be kept in mind while considering an appeal against an order of acquittal. The principles as regards considerations which should weigh with the Appellate Court, having been reiterated by the Hon’ble Supreme Court in catena of judgments, this Court would crave leave to refer to a recent decision of the Hon’ble Supreme Court in case of Mallappa and Others vs. State of Karnataka, reported in 2024 (3) SCC 544 . Paragraph no.42 of the said decision, being relevant for the present purpose, is quoted hereinbelow for benefit:- “42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. Paragraph no.42 of the said decision, being relevant for the present purpose, is quoted hereinbelow for benefit:- “42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive – inclusive of all evidence, oral or documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal; (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. ” 7.1. A perusal of the above paragraph reveals the principles which have to be kept in mind while an Appellate Court decides an appeal against acquittal. The first issue being with regard to appreciation of evidence comprehensively and whereas, all the evidences including the oral, documentary evidences should necessarily be examined. The second principle being a corollary of the first principle namely in case there is a partial or selective appreciation, then it would result in a miscarriage of justice and would itself be a ground of challenge. Most importantly, the Hon’ble Supreme Court in the third principle lays down that after appreciation of the evidence, if the appellate Court finds that two views are possible, then one in favour of the accused shall ordinarily be followed. Most importantly, the Hon’ble Supreme Court in the third principle lays down that after appreciation of the evidence, if the appellate Court finds that two views are possible, then one in favour of the accused shall ordinarily be followed. Again, as a corollary thereof, it is laid down by the Hon’ble Supreme Court that if the view of the learned Trial Court is a legally plausible view, then mere existence of a possibility of a contrary view would not be enough to justify the reversal of the acquittal. 7.2. The Hon’ble Supreme Court has further laid down that if the Appellate Court is of the opinion that the acquittal is to be reversed upon the re-appreciation of the evidence, then the Appellate Court is required to specifically give reasons as regards not accepting the findings of the learned Trial Court as regards acquitting the accused. Again, most importantly, the Hon’ble Supreme Court has laid down that in case of reversing an acquittal to conviction, the Appellate Court should specifically demonstrate an illegality, perversity or error of law or fact in the decision of the learned Trial Court.” 8. Considering the case on hand, from the perspective of the law laid down by the Honourable Supreme Court, it would appear to this Court that the learned Sessions Court has not committed any error whatsoever in acquitting the accused, more particularly, since the prosecution has not been able to establish the case against the accused beyond reasonable doubt. In this regard, it would be relevant to note that the complainant, i.e. the son of the deceased, who was present at the site of the incident, had resiled from the statement he had given before the investigating officer. It would appear, reading the deposition of the complainant, that the complainant has stated that upon his niece coming inside the house crying, he had gone out to inquire and found that his mother was lying unconscious on the Veranda. The complainant further takes the story forward by stating that he had tried to revive his late mother and whereas he had thereafter called neighbors to help him and had taken his mother to the hospital. The complainant does not in any manner implicate the present respondents as being responsible for the assault which had led to the demise of his late mother. The complainant does not in any manner implicate the present respondents as being responsible for the assault which had led to the demise of his late mother. It would also be pertinent to mention here that as per the case of the prosecution, the complainant himself had sustained injuries in the assault, yet, he himself had resiled from his original testimony. It would also be relevant to observe here that the complainant, had in the first information, mentioned about 2 persons who were witnesses to the incident, namely a Utensil Seller, named Dhirubhai Samadbhai Kamaliya, who had been examined as prosecution witness No.10 and whereas the said witness had also testified in his deposition before the learned Sessions Court that he had not seen any assault taking place. It would also appear that the second eyewitness as mentioned in the FIR, wife of Vallabhbhai had not been examined by the prosecution. It would also appear that all the Panch Witnesses had turned hostile. 9. In so far as the testimony of the treating doctor, who had incidentally conducted the post-mortem, while in his examination in chief, he has stated in detail about the injuries being sustained by the deceased, and whereas he has also deposed that the wooden log using which the deceased had been allegedly assaulted, was sufficient to cause the injuries sustained by the deceased, more particularly if the assault had taken place using the said weapon. While the doctor says as such in his examination in chief, the doctor admits that the injuries sustained by the deceased could also have resulted upon the deceased sustaining a fall and whereas it is further stated by the doctor that some of the injuries could have been sustained if the deceased had sustained a fall while she had been walking or running. That is to state that the fall should be impactful. It would appear to this Court that none of the witnesses testifying in favor of the prosecution, and while the doctor in his examination in chief, states that the weapon in question, was sufficient to cause the injuries sustained by the deceased, yet, on the other hand, it would appear that the doctor himself has stated that the injuries could be sustained by a fall, may be an impactful fall as having been attempted to be stated by the treating doctor. 10. 10. In so far as the investigating officer is concerned, the investigating officer except for reiterating what has been stated by the first complainant in his complaint, does not state anything further. No response could be elicited from the investigating officer, based upon which, learned Sessions Court could have come to a conclusion as regards the prosecution having established the charges against the accused party beyond reasonable doubt. 11. Having analyzed the evidence taken into consideration by the learned Sessions Court as hereinabove, from the perspective of the decision of the Honorable Supreme Court, it would appear to this court that while there was complete lack of material available with the learned Sessions Court to have convicted the accused, and whereas, it was a clear case of the prosecution having failed to establish the guilt of the accused beyond reasonable doubt. It would also appear to this Court that neither the decision of the learned Sessions Court is perverse or impossible and whereas we would observe that under the circumstances, the judgment in question, was the only finding, which could have been written by the learned Sessions Court. We would also observe here that since, on basis of lack of material, the view which had been taken by the learned Sessions Court, was a completely plausible view, in favour of the accused, we are not inclined to overturn the same. 12. At this stage, it would also be relevant to mention that this Court has also taken into account the fact that the alleged incident had taken place on 13.5.2004, and whereas the impugned decision of the learned Sessions Court is dated 29.11.2004. Thus a period of more than two decades had elapsed from the date of the incident and the impugned judgment. While this Court would be very circumspect in interfering with a judgment of acquittal, more particularly, in view of the above discussion, even otherwise the period of two decades having elapsed would also dissuade us from interfering. 13. Having regard to the above discussion, observations and findings to this Court, no case have been made out and, therefore, the appeal fails and is hereby disposed of as rejected.