STATE OF GUJARAT vs KOLI BHIKHA RANA (KAMLIYA)
- Court
- Gujarat High Court
R/CR.A/204/2005 JUDGMENT DATED: 29/10/2026
(GJHC240486212005)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 204 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==================================================
Yes No
Approved for Reporting
✔
==================================================
STATE OF GUJARAT
Versus
KOLI BHIKHA RANA (KAMLIYA) & ANR.
==================================================
Appearance:
MR UTKARSH SHARMA, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No.
1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2
==================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 29/10/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The appellant - State of Gujarat has preferred this appeal under
Section 378 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the Code’ for short) against the judgment and order
th
dated 20.11.2004 passed by the learned Additional Sessions Judge, 5
Fast Track Court, Veraval (hereinafter be referred to as “the trial
Court”) in Sessions Case No.389 of 1999, whereby the trial Court has
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acquitted the original accused (respondents herein) from the offences
punishable under Sections 307 and 114 of the Indian Penal Code,
1860 (hereinafter referred to as ‘the IPC’ for short) read with Section
135 of the Bombay Police Act, 1951.
2. The brief facts of the prosecution case are that, on 02.10.1998,
the complainant, Deveshibhai Varjangbhai, was proceeding for
agricultural work along with Babu Samat, who was carrying a meal for
his uncle. Pacha Manda was also accompanying them. When they
were passing through the house of respondent No. 1 - Bhikha Rana, he
came out of his house and inflicted an axe blow on the head of Babu
Samat. When Babu Samat raised a cry, the complainant intervened,
whereupon Bhikha Rana attempted to deliver a second blow. The
complainant and Pacha Manda intervened and tried to prevent him. At
that time, respondent No. 2, Kodi Lakha alias Rila Rana, arrived at the
scene of the offence and instigated Bhikha Rana by shouting, "Maar
Maar". Thereafter, Pacha Manda carried Babu Samat to the house of
China Dana. Babu Samat was bleeding profusely from his head injury.
His brother, Arjan Samat, was called. Subsequently, the injured Babu
Samat was taken to the hospital by an autorickshaw for medical
treatment.
2.2 Hence, a complaint being C.R.No. I-141/1998 was lodged by the
complainant before Prabhaspatan Police Station for the offence
punishable under Sections 307, 114 of the IPC read with Section 135
of Bombay Police Act. The police prepared panchnama of the scene of
offence and after preparing the arrest panchnama, the accused were
then arrested. On completion of investigation, charge sheet was filed
before the Court of learned J.M.F.C., Veraval.
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2.3 As the case was exclusively triable by the Court of Sessions, the
same was committed to the Sessions Court, Veraval under Section
209 of the Code of Criminal Procedure, 1973, which was registered as
Sessions Case No.389 of 1999.
2.4 The charge against the accused was framed by the trial Court
vide Exhibit 4 for the aforesaid offences against the accused. On
being explained it to them, the accused have denied having
committed any offence. The accused pleaded not guilty to the charge
and pleaded for trial and hence, the case was tried by the learned
Additional Sessions Judge, Veraval.
3. I t appears from the records that to prove the case, the
prosecution has examined the following witnesses:-
Details Exhibit
No.
Evidence of original informer
11
Witness No. 01 Devshi Varjang
Eye witness and evidence of injured person
13
Witness No. 02 Babu Samat
Medical evidence
22
Witness No. 03 Dr. Kishorkumar Raghuvirdas Hariyani
Evidence of officer in examination
26
Witness No. 04 Bhupat Devubha Vaghela
4. In addition to this, the prosecution has also produced the
following documentary evidence:-
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Sr.
No.
Details Exhibit
No.
01. Yadi and order for examination by P.S.O. to register the
7
F.I.R.
02. Special report of the offence 8
03. Panchnama of the place of offence 9
04. First Information Report 12
05. Extract of station diary 17
06. Death certificate of Chandrasinh Prabhatsinh Jadeja 18
07. M. L. C. certificate of Babu Samat 23
08. Medical certificate issued by Dr. Hemang Vasavda 24
09. Brain Screener Report 25
10. Panchnama of body condition of the injured and blood
27
stained clothes as muddamal, shirt etc
11. Panchnama of the arrest of accused 28
12. Letter bears office copy of FSL, Junagadh to examine
29
the muddamal
13. Muddamal dispatch note 30
14. FSL receipt 31
15. Notification under the Mumbai Police Act 32
16. Letter by Bhaktinagar police station which bears
33
statement of the injured and copy of D.D.
17. Letter by P.S.O. to perform D.D. of injured person in
34
Gondhiya hospital, Rajkot
18. Receipt of FSL, Junagadh 36
19. Muddamal analysis report 37
20. Serological analysis report 38
21. Letter from FSL to Serological department 39
22. Closing pursis of prosecution about completion of
40
evidence.
5. After closure of the evidence, the statements of the accused
under section 313 of the Criminal Procedure Code, 1973 have been
recorded wherein they denied of having committed any offence and
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have stated that they are innocent.
6. After hearing both sides and considering the evidence on
record, the trial Court by impugned judgment and order has acquitted
the accused from all the charges levelled against them.
7. Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal, the appellant – State of Gujarat has preferred
this appeal.
8. Heard Mr. Utkarsh Sharma, learned Additional Public Prosecutor
for the appellant – State of Gujarat.
Though notice is served, none has remained present on behalf
of the respondents – original accused.
9. Mr. Sharma , learned Additional Public Prosecutor appearing for
the appellant – State of Gujarat has submitted the same facts which
are narrated in the memo of appeal and has also submitted that the
prosecution has examined witnesses and produced documentary
evidence, despite this fact, the trial Court has not considered the
same in its true and proper perspective in passing the judgment and
order of acquittal. Mr. Sharma , learned Additional Public Prosecutor,
while referring to the entire oral as well as documentary evidence, has
assailed the impugned judgment and order and submitted that the
trial Court has not taken into consideration the evidence connecting
the accused to the alleged offence in its proper perspective and even
the prosecution has been able to prove the charges levelled against
the accused. While referring to the evidence of the witnesses and the
material collected against the accused, Mr. Sharma , learned Additional
Public Prosecutor has submitted that the prosecution has established
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the case against the accused by examining the witnesses, who have
supported the case of the prosecution, however, the trial Court has
discarded and disbelieved the evidence of these witnesses. He has
submitted that the witnesses have fully supported the case of the
prosecution, however, the trial Court has not appreciated the same
and passed the judgment and order of acquittal which is illegal and
unjust. He has submitted that it is settled legal position that the
evidence of a single witness is sufficient for conviction if the same is
reliable and trustworthy and in the present case, though the evidence
of all the witnesses are reliable and trustworthy, without any cogent
reason, the trial Court has disbelieved and discarded the evidence of
the witnesses.
9.1 According to Mr. Sharma , learned Additional Public Prosecutor,
the trial Court ought to have convicted the accused and ought to have
imposed necessary sentence. He has prayed to allow the present
appeal and to quash and set aside the impugned judgment and order
of acquittal.
10. On perusal of the impugned judgment and order of acquittal
passed by the trial Court, the questions that arise for determination
are as under:-
(1) Whether the trial Court is justified in passing the judgment and
order of acquittal.
(2) Whether the trial Court has rightly appreciated the evidence
led by the prosecution in recording the reasons.
(3) Whether there is any illegality, irregularity or any perversity in
the impugned judgment and order of acquittal.
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11. Heard learned Additional Public Prosecutor for the appellant –
State of Gujarat and perused the material placed on record. We have
also gone through the impugned judgment and order of acquittal
passed by the trial Court. Upon perusal of the impugned judgment
and order, as well as the evidence adduced by the prosecution before
the trial Court, it emerges that, on 02.10.1998, at about 20:00 hours,
at Village Bodasa, a quarrel took place between the complainant, who
was accompanied by Babu Samat Kamadiya (Koli) and Pacha Manda
Kamadiya, and the respondents in connection with the Navratri
festival. It further emerges from the record that, on the day of the
incident, respondent No. 1 was carrying an axe in his hand, whereas
respondent No. 2 abetted the commission of the offence. It is the case
of the prosecution that respondent No. 1, with the intention of causing
the death of the complainant, inflicted an axe blow on his head,
thereby causing injuries to him. This is the manner in which the
complainant narrated the incident, pursuant to which an FIR came to
be lodged against the respondents at Prabhaspatan Police Station,
being C.R. No.I-141 of 1998, for the offences punishable under
Sections 307 and 114 of the IPC and Section 135 of the Bombay Police
Act.
12. Upon perusal of the evidence of PW-1, the complainant,
Devsibhai Verjangbhai, at Exh. 11, it appears that he was a friend of
the injured, Babu Samat. While they were doing preparations for the
celebration of Navratri at village Bodas, they were passing near the
house of respondent No. 1, namely, Bhikha Rana. At that time,
respondent No. 1 inflicted a blow on the head of Babu Samat, as a
result of which he fell on the ground. Thereafter, the assailant fled
from the scene of the incident. The complainant subsequently took
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the injured to the Municipal General Hospital, Veraval, where he was
admitted as an indoor patient. It is pertinent to note that, while giving
the history of the incident before PW-3, Dr. Kishorkumar Raghuvirdas,
no name of the assailant was disclosed. In fact, the injured was
brought to the hospital by the complainant and one Arjan Samat.
Although they allegedly knew the assailant, neither of them disclosed
his name to the doctor at that time. Thereafter, the injured, Babu
Samat, was referred to a private hospital for better treatment.
Accordingly, he was admitted to Madhuram Hospital, Rajkot, run by
Dr. Hemang Vasavada, on 02.10.1998 and remained there as an
indoor patient until 05.10.1998. Dr. Vasavada observed that the
patient was likely to recover within six weeks and opined that the
injury might have been caused by a hard and blunt object. In this
regard, the medical certificate issued by Dr. Hemang Vasavada was
produced at Exh. 24.
13. Another certificate, issued by Prabhat Hospital Limited, Rajkot,
was produced at Exh. 25, wherein the findings of the CT scan of the
head of the injured, Babu Samat, were recorded. As per the said
report, no fracture was detected, and only partial compression was
observed. It is significant to note that neither Dr. Hemang Vasavada
nor the doctor who had conducted the CT scan of the injured was
examined before the Court. Nevertheless, their respective certificates
were produced on record and exhibited through the deposition of PW-
3, Dr. Kishorkumar Raghuvirdas, Medical Officer at the Municipal
General Hospital, Veraval. Furthermore, when a specific question was
put to PW-3 as to whether the injuries sustained by the injured could
have been caused by a fall on the ground, resulting in his head
striking against a hard and blunt substance, the doctor stated that
injury No. 1 was capable of resulting into death, whereas injury Nos. 2
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and 3 were simple in nature.
14. Now, upon consideration of the evidence of PW-1 and PW-2, it
appears that neither of these witnesses has referred to any other
injury having been inflicted upon the injured. Both witnesses have
also admitted that no specific role has been attributed to respondent
No. 2. Further, neither PW-1 nor PW-2 has made any allegation against
respondent No. 2 in the FIR. On the contrary, the allegations in the FIR
are specifically directed against respondent No. 1 alone. It further
emerges from the evidence on record that the persons from the
opposite side had also lodged an FIR against the injured, Babu Samat,
in respect of the injuries allegedly caused by him to a person from the
opposite side prior to the date of the present incident. In view of the
aforesaid circumstances, the prosecution has failed to establish
beyond reasonable doubt, that respondent No. 1, acting with
premeditation and with the intention to kill, inflicted an axe blow on
the head of Babu Samat. Consequently, the allegation that
respondent No. 1 committed the act with such intention cannot be
said to have been proved by the prosecution beyond reasonable
doubt.
15. At this juncture, it would be appropriate to refer to the
ingredients of Sections 307 and 324 of the IPC, which are reproduced
hereunder :
307. Attempt to murder.—
Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of
murder, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine; and if
hurt is caused to any person by such act, the offender shall be liable either
to imprisonment for life, or to such punishment as is hereinbefore
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mentioned.
Attempts by life convicts.— When any person offending under this section
is under sentence of imprisonment for life, he may, if hurt is caused, be
punished with death.
324. Voluntarily causing hurt by dangerous weapons or means.—
Whoever, except in the case provided for by section 334, voluntarily causes
hurt by means of any instrument for shooting, stabbing or cutting, or any
instrument which, used as weapon of offence, is likely to cause death, or by
means of fire or any heated substance, or by means of any poison or any
corrosive substance, or by means of any explosive substance or by means
of any substance which it is deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by means of any animal, shall be
punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
16. Now, having regard to the essential ingredients of Sections 307
and 324 of the Indian Penal Code (IPC), it is evident that the
prosecution has failed to establish the same beyond reasonable
doubt. Furthermore, the medical certificate at Exh. 24, issued by Dr.
Vasavada, cannot be considered substantive medical evidence in the
absence of his examination before the Court. In the said certificate,
the doctor has opined that the injury sustained by the injured was
likely to have been caused by a hard and blunt object. This opinion is
also required to be considered in the context of the history recorded
by the doctor, wherein the name of the alleged assailant was not
disclosed by the persons who had brought the injured to the hospital.
Therefore, upon an overall appreciation of the evidence on record, this
Court is of the view that the Trial Court has rightly assigned cogent
reasons from paragraph 10 onwards and, more particularly, recorded
its conclusions in paragraphs 18, 19 and 20. In view of the above, we
are of the opinion that the trial Court has not committed any error of
facts and law in passing the impugned judgment and order and we do
not find any illegality, perversity, or infirmity in the impugned
judgment and order warranting interference by this Court.
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17. It is well settled by catena of decisions that an Appellate Court
has full power to review, re-appreciate and reconsider the evidence
upon which the order of acquittal is founded. However, Appellate
Court must bear in mind that in case of acquittal there is double
presumption in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental principle of
criminal jurisprudence, that every person shall be presumed to be
innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the presumption
of their innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
18. Further, if two reasonable conclusions are possible on the basis
of the evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the trial Court. Further, while
exercising the powers in appeal against the order of acquittal, the
Court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower Court is vitiated by some
manifest illegality and the conclusion arrived at would not be arrived
at by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the Appellate Court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court has
committed a manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out whether
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the accused are connected with the commission of the crime with
which they are charged.
19. The scope and principles are enunciated by the Hon’ble Apex
Court in case of Chandrappa and others Vs. State of Karnataka
reported in (2007) 4 SCC 415 , more particularly paragraph Nos.
42 and 43 , which was subsequently re-affirmed by the Hon’ble Apex
Court Rajesh Prasad Vs. State of Bihar and another , reported in
[ 2022] 3 SCC 471 , wherein, the Hon’ble Apex Court has enunciated
the general principles in case of acquittal, more particularly in
paragraph No. 26 the general principles are set out by the Hon’ble
Apex Court based upon various decisions of the Hon’ble Apex Court.
Then in case of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149,
the Hon'ble Apex Court has dealt with the similar issue, more
particularly, in paragraph Nos. 37 to 40. Hence, we are in complete
agreement with the findings recorded by the trial Court.
20. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169 , wherein the Hon’ble
Supreme Court has held and observed in paras-20 and 21 as under:-
“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa and others vs.
State of Karnataka , regarding the power of the appellate Court
while dealing with an appeal against a judgment of acquittal.
The principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order
of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
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appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such phraseologies are
more in the nature of “flourishes of language” to emphasize the
reluctance of an appellate court to interfere with acquittal than
to curtail the power of the court to review the evidence and to
come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case
of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of
this Court pointed out that it would be essential for the High
Court, in an appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the reasons of
the Trial Court in order to be able to reach a contrary conclusion
of guilt of the accused. It was further observed that, in an appeal
against acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of witnesses
and it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this light, the
brusque approach of the High Court in dealing with the appeal,
resulting in the conviction of Appellant Nos. 1 and 2, reversing
the cogent and well-considered judgment of acquittal by the Trial
Court giving them the benefit of doubt, cannot be sustained.”
21. Considering the entire evidence on record, it clearly appears
that there is no credible evidence to connect the present accused with
the alleged crime and the evidence on record is not so convincing to
prove beyond reasonable doubt that the accused have committed the
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alleged crime. Therefore, the accused cannot be convicted on the
evidence on record.
22. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact and
law in appreciating the evidence on record and in acquitting the
accused from the charges levelled against them. Even on re-
appreciation of the evidence, it clearly transpires that the prosecution
has miserably failed to prove the charge levelled against the accused
beyond reasonable doubt. Therefore, the impugned judgment and
order of the trial Court is sustainable and the present appeal is liable
to be dismissed.
23. In view of the above, t h e present appeal is devoid of merits and
it deserves to be dismissed. Resultantly, it is dismissed. The impugned
judgment and order of acquittal passed by the trial Court is hereby
confirmed. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(BHARGAV D. KARIA, J)
(HEMANT M. PRACHCHHAK,J)
Dolly
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