ISHWARBHAI KHENGARBHAI RABARI v. STATE OF GUJARAT

R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 397 of 2001 With R/CRIMINAL REVISION APPLICATION NO. 237 of 2001

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

==================================================== Approved for Reporting Yes No ==================================================== STATE OF GUJARAT Versus RABARI JAMBEN D/O NAGJI DEVKARAN & ORS.

==================================================== Appearance:

MR RONAK B RAVAL, APP for the Appellant(s) No. 1 MR MM TIRMIZI(1117) for the Opponent(s)/Respondent(s) No.

1,2,4,5,6,7

NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3 ==================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 18/11/2025 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 03.05.2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.160/1999, whereby the respondent- accused came to be acquitted for the offences punishable under Secti ons Page 1 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 302, 201, 120(B) read with Section 34 of the Indian Penal Code, the appellant – State has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short). Feeling aggrieved by the order of acquittal dated 03.05.2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.160/1999, the original complainant has also preferred the captioned revision application under Sections 397(1) and 401 of the Code.

2. The brief facts leading to the filing of the present appeal a re as under:

2.1. The complainant, resident of Gheda, Taluka Kadi, District Mehsana, lodged a complaint alleging that on 28.09.1995 at about 18:00 hours, his two sons (hereinafter referred to as the deceased) left home on a bicycle to Zalasar (Karshanpura) to collect land documents from accused no.3, and did not return. On inquiry, accused no.3 denied their visit. On 01.10.1995, bodies of the deceased were found in a well near Zalasar village talaav. The complainant suspected foul play and be lieved the accused conspired to murder the deceased due to a dispute involvi ng accused no.6 and one of the deceased. The bodies were found out and taken for post-mortem, and after rituals, the complaint was filed.

2.2. The FIR was lodged at Balol Police Station under Sections 302, 201, 120(B) r/w 34 IPC. The accused were arrested and remanded. A fter investigation, a charge sheet was filed before the Judicial Magis trate First Class, Kadi.

2.3. As the Judicial Magistrate First Class lacked jurisdiction to try the offence under Section 302 IPC, the case was committed to the Ses sions Court, Mehsana and registered as Sessions Case No.160/1999 for trial.

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R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 Upon conclusion of the prosecution evidence, the trial court put various incriminating circumstances appearing in the evidence to the res pondent- accused for their explanation under Section 313 of the Code. In thei r further statements, the respondent-accused denied all the incrimi nating circumstances as false and stated that they are innocent and have been falsely implicated. After examining the oral and documentary e vidence and the submissions from both sides, the learned trial court recor ded a finding in favour of the respondent-accused and acquitted them of al l charges.

3. We have heard the learned advocates for the respective parties and carefully examined the oral and documentary evidence adduced before the learned Sessions Court. During the course of the trial, the pr osecution examined a total of 17 witnesses. The details of the oral and documentary evidence are as under:

~:: Oral Evidence ::~

Sr. No. Particular Exh.

1 Ishwarbhai Khengarbhai Rabari – Complainant PW-1 20 2 Ranchhodbhai Ghobhanbhai Patel PW-2 21 3 Girdharbhai Virjibhai Patel PW-3 24 4 Ishwarbhai Prabhatbhai Rabari PW-4 25 5 Rameshbhai Devjibhai Choudhari PW-5 26 6 Amartji Abhraji Thakor PW-6 27 7 Dahyabhai Virabhai Chavda PW-7 28 8 Amratbhai Popatbhai Patel PW-8 29 Page 3 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 9 Naranbhai Chaturbhai Rabari PW-9 30 10 Baldevbhai Mehulbhai Rabari PW-10 31 11 Vinubhai Keshavlal Panchal PW-11 32 12 Bijalbhai Khodabhai Rabari PW-12 34 13 Bhaktibhai Varvabhai Prajapati PW-13 35 14 Kaluji Cheharji Thakor PW-14 38 15 Bachuji Gandaji Thakor PW-15 39 16 Chimanlal Parshottamdas Makwana PW-16 40 17 Narendrasinh Pashubha Jadav PW-17 50 ~:: Documentary Evidence ::~ Sr. No. Particular Exh.

1 Inquest Panchnama 22

2 Panchnama of place where bodies found 23 3 Panchnama of place of disappearance 36 4 PM Note of first deceased (Tejabbhai Ishwarbhai) 37 5 PM Note of second deceased (Jivabhai Kamabhai) 41 6 Panchnama of dairy card from clothes 42 7 Panchnama of body identification 43 8 Panchnama of seizing bicycle 44 9 Original Complaint 46 10 Panchnama of crime scene 51 11 Panchnama of clothes on body 52 12 Panchnama of taking cause of death certificate 53 Page 4 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 13 Delivery note 54 14 FSL receipt 55 15 FSL biology department report 56 16 FSL chemistry department report 57 17 FSL physical department report 58 4. The learned APP appearing for the appellant – State, submitted that the impugned judgment requires interference, primarily relying upon t he deposition of the complainant examined as PW-1 at Exh.20. His testimony, according to the prosecution, establishes the motive due to a dispute, the last seen with accused, and the recovery of bodies f rom the well. It is not in dispute that the deceased had hyoid bone fractur e and diatoms in viscera, as supported by the PM notes (Exh.36,37) and FSL reports (Exh.57,58). Hence, it was contended that the trial court er red in acquitting the accused.

4.1. The learned APP further submitted that the evidence of other material witnesses corroborates the prosecution case and, there fore, the acquittal warrants interference and conviction of the respondent-accused.

5. Mr.M.M. Tirmizi, learned Advocate for the respondent-accused, submitted that the impugned judgment does not call for any interference .

They contended that the testimony of the complainant is unreliable as it is based on hearsay, and there was ample delay in filing the compl aint alleging murder. In cross-examination, he admitted contradictions in statements and lack of prior knowledge of motive. PW-8 and PW-11 turned hostile and did not support the prosecution case. It was fu rther submitted that no independent witnesses were examined, no weapon Page 5 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 recovery was made, and the FSL reports indicate drowning with diatoms presence, suggesting accidental death. Hence, in absence of any e vidence proved beyond reasonable doubt, the acquittal is justified.

6. Having heard the learned advocates for both sides and perused the depositions of the witnesses, documentary evidence, and the judgment of the Sessions Court, it appears that the case of the prosecution rests entirely on circumstantial evidence, with no direct ocular acc ount of the incident.

7. On scrutiny of the deposition of the complainant (PW-1 at Exh.20), it appears that although he claimed a motive due to a dispute, no supporting evidence is produced. In his testimony, PW-1 Ishwarbhai Khengarbhai Rabari detailed that on 28.09.1995, around 4-5 PM, his brother Tejabbhai and Jivabhai left on bicycles from Gheda village t o Zalasar (Karshanpura) to retrieve a file related to leas ed land from Satish Valand; he inquired about their purpose, and they explained before proceeding. They failed to return by 10 PM, prompting him to send inquiries via Bijalbhai Khodabhai, who reported from Satish that they had not arrived. Further checks via Amar to Ahmedabad yielded no results , and on 01.10.1995 at 6 PM, police informed him of the bodies recovered from a well near Zalasar pond; he rushed to the site, identifi ed the bodies post-PM on 02.10.1995, and filed the complaint suspecting conspiracy by the accused, particularly Satish as the main orchestrator, due to prior land disputes. His version regarding the last seen and movements lacks credibility as no prudent person would refrain from raising suspic ion immediately. The complainant's admission of delays and contradictions in statements to police, coupled with his conduct of remaining silent for days, renders his evidence unreliable. Sole reliance on such inconsist ent testimony cannot sustain conviction.

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R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 8. PW-8, the sister-in-law of one deceased, and PW-11, another relative, both turned hostile and did not support the prosecution case.

PW-8, identified as a close relative of the deceased Jivabhai, was examined but resiled from her earlier statement, denying any knowl edge of the incident or involvement of the accused, claiming she was not present at the time and had no information about the movements of the deceased on the fateful day. Similarly, PW-11 Vinubhai Keshavlal Panchal, a relative, turned hostile during examination, retracting support for the prosecution narrative by stating he had no firsthand inform ation and was only informed later by police, without corroborating the motive or conspiracy alleged. No recovery of any weapon was made. The F SL reports (Exh.57,58) indicate diatoms in viscera, supporting drowning.

Thus, the cumulative effect of contradictions, admissions, and abse nce of corroboration raises serious doubt about the veracity of the prosecution story.

9. PW-16, the police witness examined at Exh.40, who only have deposed regarding the investigation procedure and recording of statements. PW-16 Chimanlal Parshottamdas Makwana, the investigati ng officer, testified to the procedural aspects, including rece iving the complaint on 02.10.1995, conducting inquest panchnamas at the well site, recording statements of witnesses like the complainant and initi al panchas, sending viscera for FSL analysis, and preparing chargesheet based on collected evidence such as recovery of cycles and clothe s from the well, while noting the identification of accused during probe but without detailing any recoveries from them. All panch witnesses also turned hostile, which ultimately wrecked the prosecution case. The panch witnesses, including those for inquest (Exh.22), body recovery (Exh.36,37), and other panchnamas (Exh.23,42-46,52), were examined Page 7 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 but turned hostile, denying knowledge of the recoveries or events, stati ng they signed under police pressure without witnessing anything substantial, thus failing to corroborate key prosecution evidence.

10. Though the deceased had hyoid fractures, the PM notes attribute it to possible impact, not assault. The postmortem reports by Dr. Bhaktibhai Varvabhai Prajapati (PW-13) noted for Tejabbhai: asphyxia due to throttling leading to drowning, with hyoid bone fracture possibly from pressure on neck or fall; for Jivabhai: similar cause, with injuries consistent with strangulation before immersion, but opined as unnatura l death pending chemical analysis. Considering contradictory statement s and conduct, the trial court rightly concluded that the prosecution fa iled to prove its case beyond reasonable doubt. The testimony of the complainant is inconsistent and lacks corroboration; therefore, the acquittal recorded by the learned Sessions Court is proper and war rants no interference.

11. On scrutiny of the depositions of the two purported independent eyewitnesses, Kaluji Cheharji Thakor (PW-14 at Exh.38) and Bachuji Gandaji Thakor (PW-15 at Exh.39), it appears that their testimony lac ks credibility. PW-14 Kaluji Cheharji Thakor deposed that on 28.09.1995 around 8-9 PM near Zalasar pond, he saw 2-4 Rabari community members quarreling over some issue, identified accused nos. 1,3-7 among them arguing aggressively, and later learned of the incident involving the deceased, claiming the accused dragged the victims towards the w ell.

Similarly, PW-15 Bachuji Gandaji Thakor corroborated seeing the sa me group of Rabaris in altercation at the spot, naming the accused as participants in the heated exchange, stating it occurred in sem i-darkness but he recognized them from proximity, and the fight escalated lea ding to the victims being pulled away. Although they claimed to have witne ssed Page 8 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 a quarrel among members of the Rabari community near the place of incident, they failed to clearly establish the presence or pa rticipation of the deceased in the said quarrel. Their statements are vague and do not specify whether the deceased were involved in the altercation. Moreover, no identification parade was conducted, and the accused were identi fied for the first time in court after a considerable lapse of tim e, rendering such dock identification unreliable.

12. The conduct of these witnesses further undermines their veracity.

Despite claiming to have seen the quarrel at around 23:00 to 00:00 hours on the night of the incident, they remained silent for nearly a yea r before coming forward with their version. No satisfactory explanation has been offered for this inordinate delay. Additionally, both witnesses we re serving with relatives of the complainant, rendering them interested witnesses whose testimony cannot be accepted without independent corroboration, which is conspicuously absent.

13. The medical evidence, particularly the post-mortem notes (Exh.37 and 41) and the FSL reports (Exh.57 and 58), indicate that death was caused by asphyxia due to drowning, with diatoms present in the visc era.

The doctor has opined that the absence of external injuries is consi stent with accidental fall into the well. The hyoid bone fracture, if any, could have resulted from impact during the fall and does not necessarily indicate strangulation or homicidal violence. The initial investigation proceeded on the footing of accidental death, and the subsequent theory of murder appears to be an afterthought without substantive proof.

14. The complainant’s own conduct raises serious doubts. Despite learning of the recovery of the bodies on 01.10.1995, he initially accepted the accidental death theory and performed the last rites. The complaint Page 9 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 alleging murder was lodged only after a significant delay, prompted by subsequent suspicions without any fresh material. This delayed FIR, coupled with the absence of any prior enmity or motive established beyond reasonable doubt, renders the prosecution case improbable.

15. Thus, the whole case of the prosecution rests on the circumstant ial evidence; however the prosecution has also failed to place on re cord any such circumstances to link the chain so as to surface the i mplication of the accused in commission of the crime in question. It is per tinent to note that even as per the case of the prosecution, in absence of any motive, that itself is sufficient to dislodge the case of prosecution if other proven circumstances could form a chain so complete as to indicate that in all human probability it is accused and no one else who committed cr ime yet, in a case based on circumstantial evidence, motive plays an important part.

16. Now, reverting back to the facts of the present case, nothing sort of any such material seems to be placed on record to indicate as to motive behind the commission of the offence in question and therefore, admittedly the whole case rests on the circumstantial evidence and considering the way in which the entire incident have been describe d, followed by the investigation carried out by the IO and to convict the accused in absence of any direct evidence though dealing with the c ase based on circumstantial evidence, the important aspect which re quires to be considered are such as (i) whether circumstances relied by prosecution have been proved beyond reasonable doubt; (ii) whether those circumstances are of a definite tendency unerringly pointing towards guilt of accused; (iii) whether those circumstances taken cumulativel y form a chain so far complete that there is no escape from conclusion t hat within all human probability crime was committed by accused; (iv) whether they Page 10 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 are consistent only with hypothesis of accused being guilty; and las tly (v)

whether they exclude every possible hypothesis except one to be proved.

17. In a case resting on circumstantial evidence, the chain must be complete and incapable of explanation on any hypothesis other than the guilt of the accused. The prosecution has failed to establish a ny incriminating circumstance that unerringly points to the guilt of the respondents. The evidence adduced is fragmentary, inconsistent, and fal ls short of the standard of proof beyond reasonable doubt.

18. Considering the cumulative effect of the contradictions, the interested nature of the eyewitnesses, the absence of corroborat ion, the medical evidence supporting accidental drowning, and the lack of motive or recovery, the trial court rightly concluded that the prosecution failed to prove its case beyond reasonable doubt. The testimony of the key witnesses is unreliable and insufficient to sustain conviction; t herefore, the acquittal recorded by the learned Sessions Court is proper and warrants no interference.

19. At this stage, this Court may refer to the decision of the H on’ble Apex Court in the case of Rajesh Prasad v. State of Bihar and Another [(2022) 3 SCC 471] encapsulated the legal position covering the field after considering various earlier judgments and held as below: - “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers o f the appellate court while dealing with an appeal against an order acqui ttal in the following words: (Chandrappa case [Chandrappa v. State of Kar nataka, (2007) 4 SCC 415] “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellat e court while dealing with an appeal against an order of acquittal emerge:

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R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limit ation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on que stions of fact and of law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circums tances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to i nterfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every pers on shall be presumed to be innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and str engthened by the trial court.

(5) If two reasonable conclusions are possible on t he basis of the evidence on record, the appellate court should not disturb t he finding of acquittal recorded by the trial court.”

20. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023)

9 SCC 581] the Hon’ble Apex Court has summarized the principles governing the exercise of appellate jurisdiction while dealing w ith an appeal against acquittal under Section 378 of CrPC as follows: - “8.1. The acquittal of the accused further strengthe ns the presumption of innocence;

8.2. The appellate court, while hearing an appeal a gainst acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken Page 12 of 13 R/CR.A/397/2001 JUDGMENT DATED: 18/11/2025 by the trial court is a possible view which could h ave been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another v iew was also possible;

and

8.5. The appellate court can interfere with the ord er of acquittal only if it comes to a finding that the only conclusion which c an be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

21. In light of the above legal position and for the reasons recorded i n the foregoing paragraphs, coupled with the fact that the case of the prosecution does not get support from the evidence recorded by the learned trial Court, the present appeal as well as the captione d fails and are accordingly dismissed. Records and Proceedings, if any, be remit ted to the Court concerned forthwith.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

MVP

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Original copy of this order has been signed by the Hon'ble Judges.

Digitally signed by: MITESH VIJAYBHAI PANCHAL(HCD0065), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 18/11/2025 15:20:00