Gujarat High Court
State Of Gujarat vs Yakub Sikander Sheikh on 28 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/312/2004 JUDGMENT DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 312 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
YAKUB SIKANDER SHEIKH
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 28/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 15.07.2002 passed by the learned Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No.118 of 2002, whereby the respondent-accused came to be acquitted for the offences punishable under Sections 302 read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act, the appellant - State has preferred the present appeal with leave under Section 378(1)(3) of the Code of Criminal Procedure, 1973.
2. The brief facts leading to the filing of the present appeal are as under:
Page 1 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Mon Dec 01 2025 Downloaded on : Tue Dec 02 21:54:40 IST 2025NEUTRAL CITATION R/CR.A/312/2004 JUDGMENT DATED: 28/11/2025 undefined 2.1. On 28.02.2002, at about 16:30 hours, near the bus stand at Pandarwada village, Taluka Khanpur, District Panchmahals, during the bandh called on account of certain incidents in the State, the complainant along with his relatives and villagers was ensuring closure of shops. At that time, the deceased Shambhubhai, brother of the complainant, was at his shop. The respondent-accused along with two absconding accused persons, namely Mehmoodmiya and Firozbhai Bhikhubhai, came there armed with deadly weapons including a sword. They dragged the deceased out of the shop and inflicted multiple injuries with sharp cutting weapons. The deceased succumbed to the injuries on the spot. He was taken to the hospital where he was declared brought dead. The complaint was lodged the same day at Khanpur Police Station, which came to be registered as FIR bearing C.R. No.I-9/2002 for the aforesaid offences.
2.2. During investigation, inquest panchnama and scene of offence panchnama were drawn, postmortem was conducted, statements of witnesses were recorded and after completion of investigation, charge sheet was filed against the present respondent-accused (other two accused remained absconding).
2.3. The case being exclusively triable by the Court of Sessions, it was committed to the Sessions Court, Panchmahals at Godhra and was registered as Sessions Case No.118 of 2002. Charge was framed at Exh.2.
The respondent-accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, after recording the statement of the accused under Section 313 of the Code and hearing the parties, the learned trial court acquitted the respondent-accused of all the charges by the impugned judgment and order dated 15.07.2002.
3. Learned APP submitted that the impugned judgment is contrary to Page 2 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Mon Dec 01 2025 Downloaded on : Tue Dec 02 21:54:40 IST 2025 NEUTRAL CITATION R/CR.A/312/2004 JUDGMENT DATED: 28/11/2025 undefined the evidence on record and deserves to be set aside. It was contended that the prosecution had examined seven eye-witnesses who had fully supported the case in their police statements, but all of them turned hostile in the court. It was submitted that merely because near relatives of the deceased have not supported the prosecution, the case cannot be thrown overboard when the medical evidence fully corroborates the ocular version recorded during investigation. It was urged that the trial court has failed to appreciate the evidence in its proper perspective and the acquittal may be converted into conviction.
4. We have heard learned APP for the appellant-State and perused the record and proceedings including the oral and documentary evidence adduced before the trial court. We find that the view taken by the learned trial court is the only possible and correct view on the facts and evidence of the case.
5. Having heard learned APP for the appellant-State and the learned advocate for the respondent-accused and having carefully perused the entire record, this Court finds that the prosecution case rested entirely on the testimony of seven alleged eye-witnesses, all close relatives of the deceased, namely:
(1) the complainant Sardarbhai Khatubhai (brother), (2) Bhikhabhai (another brother), (3) Mahesh (nephew), (4) Barjod Ramabhai, (5) Dansibhai Rumalbhai, (6) Nemabhai Khatubhai, and (7) Dantabhai (family member/relative).
6. Every one of these witnesses, right from their examination-in-
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chief, categorically stated that they did not witness the incident, were not present at the scene when the assault took place, and have no knowledge as to how the deceased sustained the injuries or died. When confronted with their previous police statements in which they had implicated the present respondent along with the two absconding accused, each witness disowned those statements and asserted that nothing of that nature was voluntarily stated by them to the police and that the contents were neither read over nor explained to them.
7. Although the evidence of a related witness cannot be discarded merely on the ground of relationship, when the nearest relatives of the deceased unanimously turn hostile and refuse to support the prosecution version in any manner whatsoever, it creates a fatal dent in the prosecution case, particularly in the absence of any independent corroboration. In the present case, despite the incident having allegedly occurred at a public place near the bus stand in broad daylight, not a single independent public witness has been examined. No weapon has been recovered, nor is there any discovery or other incriminating circumstance linking the respondent-accused to the crime.
8. The medical evidence, consisting of the inquest panchnama, postmortem report and the deposition of the medical officer, conclusively establishes that the deceased suffered multiple sharp-cutting incised injuries on vital parts including the head (causing brain damage), right forearm, thumb, shoulder and right leg, and that the injuries to the head and brain were sufficient in the ordinary course of nature to cause death. There is nothing on record even remotely suggesting that the death was accidental or suicidal. Thus, the homicidal nature of the death stands proved beyond doubt. However, medical evidence can only establish the nature of injuries and the cause of death; it cannot identify the author of Page 4 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Mon Dec 01 2025 Downloaded on : Tue Dec 02 21:54:40 IST 2025 NEUTRAL CITATION R/CR.A/312/2004 JUDGMENT DATED: 28/11/2025 undefined those injuries. In the absence of any trustworthy ocular evidence connecting the respondent-accused with the assault, the medical evidence alone cannot form the basis of conviction.
9. It is settled law that statements recorded under Section 161 Cr.P.C. are not substantive evidence and can be used only for contradiction or, in exceptional circumstances, for limited corroboration. When the makers of those statements completely resile from them on oath and stand firm that they witnessed nothing, it is wholly unsafe and impermissible to rely on such disowned police statements to sustain a conviction.
10. The learned trial Judge has rightly held that when the closest relatives of the deceased themselves assert total ignorance about the manner of death and refuse to implicate anyone, it would be contrary to the interests of justice to convict the accused solely on the strength of repudiated police statements. No adverse inference can be drawn against the accused on account of the hostility of these witnesses, especially when the prosecution has failed to examine even a single independent witness from the place of occurrence.
11. In an appeal against acquittal, this Court interferes only if the findings of the trial court are shown to be perverse, impossible or wholly unsustainable. The view taken by the trial court that the prosecution has failed to prove the guilt of the respondent-accused beyond reasonable doubt is not merely a possible view but the only reasonable view that emerges from the evidence on record. No illegality, perversity or error of law is discernible in the impugned judgment.
12. At this stage, this Court may refer to the decision of the Hon'ble Apex Court in the case of Rajesh Prasad v. State of Bihar and Another Page 5 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Mon Dec 01 2025 Downloaded on : Tue Dec 02 21:54:40 IST 2025 NEUTRAL CITATION R/CR.A/312/2004 JUDGMENT DATED: 28/11/2025 undefined [(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 of the appellate court while dealing with an appeal against an order acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415] "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in 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."
13. 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 with an appeal against acquittal under Section 378 of CrPC as follows: -
Page 6 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Mon Dec 01 2025 Downloaded on : Tue Dec 02 21:54:40 IST 2025NEUTRAL CITATION R/CR.A/312/2004 JUDGMENT DATED: 28/11/2025 undefined "8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
14. In light of the above legal position and for the reasons recorded in 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 fails and is accordingly dismissed.
Records and Proceedings, if any, be remitted to the Court concerned forthwith.
(ILESH J. VORA,J) (R. T. VACHHANI, J) MVP Page 7 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Mon Dec 01 2025 Downloaded on : Tue Dec 02 21:54:40 IST 2025