Gujarat High Court
State Of Gujarat vs Bharwad Mepa Jiva on 21 February, 2026
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 637 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
================================================================
Approved for Reporting Yes No
================================================================
STATE OF GUJARAT
Versus
BHARWAD MEPA JIVA & ORS.
================================================================
Appearance:
MR HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No.
2,4,5,6,8
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 1,3,7,9
================================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 21/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Challenge in the captioned appeal, filed under section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C."), is to the judgment and order dated 17.02.2003 passed in Sessions Case no.42 of 1998 acquitting the opponents for the offences under sections 147, 148, 149, 302, 326, 325, 324, 323 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") and under section 135 of the Bombay Police Act, 1951 (hereinafter referred to as "the B.P. Act").
Page 1 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined
2. The brief facts as can be culled out from the record are that, on 08.10.1994, around 9 p.m., when the complainant Deva Moti went to offer prayers to the Khodiyar Maa Temple, he was stopped and not allowed to offer prayers by the opponent no.1 on account of he having not contributed the funds for the construction. Upon getting the information, the father Moti Khoda, brothers Vela Moti and Lala Moti, uncle Singha Pancha and his two sons reached the scene of offence and tried to rescue the complainant Deva Moti. During the altercation, complainant and his family members have suffered simple, severe and fatal injuries by the opponents. Vela Moti had suffered fatal injuries at the ends of Bharwad Raja Popat whereas, other witnesses had sustained simple and severe injuries. First Information Report being C.R. No.165 of 1994, was registered with the Halvad Police Station for the offences under sections 147, 148, 149, 302, 326, 325, 324, 323 of the IPC and section 135 of the B.P. Act, followed by filing of the charge-sheet and registration of the Criminal Case no.794 of 1994, which case was committed to the Court of Sessions and culminated into Sessions Case no.15 of 1995.
3. The issues were formulated, namely, whether the complainant proves beyond the reasonable doubt that all the accused have formed an unlawful assembly with an intention to commit murder of the deceased, causing simple and severe injuries to the witnesses and thereby, committed offences under sections 147, 148, 149 of the IPC. Further issue was, whether the complainant proves beyond the reasonable doubt that the accused with a common intention, committed a murder and the complainant and other witnesses, namely, Moti Khoda, Lala Moti and Sendha Pancha were inflicted simple and severe injuries and resultantly, committed offences under the provisions of sections 302, 326, 325, 324, 323 read with sections 147, 148, 149 of the IPC and section 135 of the B.P. Act.
Page 2 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined
4. It is pertinent to note that as regards issue no.1, the Sessions Court had concluded that it is proved beyond reasonable doubt that the deceased sustained fatal injuries owing to the sickle blow inflicted by the accused Bharvad Raja Popat and was punished for the offences under section 302 of the IPC and section 135 of the B.P. Act. The issue as regards proving beyond reasonable doubt that all the accused together had formed an unlawful assembly with an intention to murder Vela Moti and causing injuries (simple and severe) to the witnesses have committed the offence under sections 147, 148 and 149 of the IPC, the learned Judge concluded that except Popat Vala and his four sons, nobody had participated in the commission of offence and the prosecution could not prove beyond reasonable doubt their involvement. It is further observed that it is true that although five persons, namely, Popat Vala and his four sons had assembled together, that by itself would not satisfy the intention of forming unlawful assembly inasmuch as, it is but natural that when there is an altercation, all the family members would get together. It cannot be said that the assembly was with a common intention to commit the murder or causing simple and severe injuries to the witnesses. While observing thus, in paragraph 16, the Sessions Court had answered it in negative.
5. Vide impugned judgment, out of 10 accused, accused no.1, 3, 5, 8 and 10 i.e. Bharwad Mepa Jiva, Bharwad Kheta Nundha, Bharwad Khoda Bhagwan, Bharwad Kuka Sandhabhai and Bharwad Karna Mepa were acquitted of all the offences with which they were charged. Accused no.2 Bharwad Raja Popat was convicted for an offence under section 302 of the IPC and was sentenced to undergo imprisonment for life. While accused nos.6 and 4 - Bharward Haka Popat and Bharwad Popat Vala were convicted for offences under section 323 of the IPC and section 135 of the B.P. Act. Accused no.7 Bharwad Mala Popat and accused no.9 Bharwad Zala Popat were Page 3 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026 NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined convicted for offences under sections 325 and 323 of the IPC and section 135 of the B.P. Act. Being aggrieved, the State has preferred the captioned appeal.
6. At the outset, it is required to be noted that Mr Hardik Soni, learned Additional Public Prosecutor submitted before this Court that the main accused Bharwad Raja Popat, accused no.4 - Bharwad Popat Vala, accused no.6 - Bharwad Haka Popat, accused no.7 - Bharwad Mala Popat and accused no.9 - Bharwad Zala Popat had preferred Criminal Appeal no.286 of 2003 which was heard by the co-ordinate Bench of this Court and vide judgment dated 20.03.2009, arising out of the selfsame judgment, altered the sentence and conviction of Bharwad Raja Popat from section 302 and 114 of the IPC to section 304 Part I of IPC. Relevant paragraphs of the judgment, read thus:
"Heard the learned counsel for the parties. The learned counsel for the appellants submitted that the quarrel took place on the trifle issue where the accused restrained the first informant from offering the prayers at Khodiyar Mata Temple, which was under
construction and no idol of Mata was installed. Original accused No.1 - Mepa Jiva who was present near that place objected to offering prayers in the temple as the first informant did not contribute to the construction expenses of the temple. On this trifle issue a single injury was inflicted to the deceased. The other persons said to have caused simple injuries to the witnesses. They have been convicted as aforesaid. Their conviction is not challenged and their sentence, of course, is a matter of concern for us because after so many years sending them back to the jail is not proper. In that view of the matter, conviction of appellants Nos.3, 4 and 5 is maintained and their substantive sentence is reduced to the period already undergone. Accused No.4 - appellant No.2 has been granted probation. As regards appellant No.1 - original accused No.2, he having caused single blow on the trifle matter, we are persuaded that offence under Section 302 of IPC is not made and the offence can only be described under Section 304 Part I of IPC. Hence, the conviction of appellant No.1 - original accused No.2 is altered Page 4 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026 NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined from Section 302 of IPC to Section 304 Part I of IPC.
In the result, Criminal Appeal No.286 of 2003 is partly allowed. The sentence and conviction of the appellant No.1 - original accused No.2 - Bharwad Raja Popat under Section 302 of IPC read with Section 114 of IPC is set aside and instead it is altered to Section 304 Part I of IPC and he is now sentenced to 9 years RI with a fine of Rs.1000 in default to further undergo simple imprisonment for one month.
Appellants Nos.1 and 2 are acquitted of the charges levelled against them. Appellant No.2 - original accused No.4 - Popat Vala is released on Probation of Offenders Act. Appellant Nos.3 to 5 are on bail. Their bail bonds stand cancelled. Appellant No.1 is in jail. He shall serve out the sentence as indicated herein above.
Criminal Revision Application No.91 of 2003 filed by the first informant challenging the judgment and order passed by the learned Additional Sessions Judge, in the facts stated herein above, is dismissed."
7. Therefore, this Court, while partly allowing the judgment, converted the offence under section 302 to section 304 Part I of IPC. The Division Bench of this Court, after appreciation of the evidence has observed that the quarrel took place on a trifle issue of restraining the complainant Deva Moti from offering prayers at Khodiyar Maa Temple. The accused no.1 objected the complainant from offering prayers in the absence of any contribution by him towards the construction expenses. It is observed that fatal injury was inflicted by the main accused Bhaward Raja Popat and others have caused simple and severe injuries to the witnesses. The Division Bench, was of the opinion that others have not challenged the conviction and their sentences and is a matter of concern as after so many years sending them back to the jail would not be proper. The substantive sentence was reduced to the period undergone by the accused nos.6, 7 and 9, namely, Bharward Haka Popat, Bharwad Mala Popat and Bharwad Zala Popat. Accused no.4 was granted probation and hence, no further direction was issued. Clearly, the original accused no.2 - Bharwad Raja Popat he having Page 5 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026 NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined caused a single blow, the offence under section 302 of IPC was considered to be not made out and offence under section 304 Part I of IPC was accepted. Therefore, against the self-same judgment, Criminal Appeal no.286 of 2003 is partly allowed and the sentence and conviction of the original accused no.2 - Bharwad Raja Popat was altered from section 302 to section 304 Part I of the IPC. It is pertinent to note that the respondent no.3 Bharwad Popat Wala; respondent no.5 Bharwad Haka Popat, respondent no.6 Bharwad Mala Popat and respondent no.8 Bharwad Zala Popat were the appellant nos.2 to 5 in Criminal Appeal no.286 of 2003.
8. Together with the Criminal appeal, the complainant had filed the Criminal Revision Application no.91 of 2003 challenging the impugned judgment and order dated 17.02.2003 to the extent that respondent nos.4, 6, 7 and 9 are given lesser punishment and the respondent nos.1, 3, 5, 8 and 10 are granted acquittal and the respondent no.4 is given benefit under the Probation Offenders Act. The prayer reads thus:
"(b) be pleased to quash and set aside the judgment and order, dated 17.2.2003, passed by the learned Additional Sessions Judge (Fast Track), Dhrangadhra in Session Case No.42/98, to the extent that the opponetn Nos. 4, 6, 7 and 9 are given lesser punishment and the opponent Nos. 1, 3, 5, 8 and 10 are granted acquittal and opponent No.4 is given the benefit under the Probation Offenders Act"
While partly allowing the Criminal Appeal no.286 of 2003, Criminal Revision Application no.91 of 2003 filed by the first informant challenging the judgment and order passed by the learned Additional Sessions Judge, was dismissed. Hence, the challenge against the acquittal is not accepted and stands confirmed; however, for the sake of completeness, the captioned appeal is considered and does not warrant interference as per the discussion hereinafter.
9. Before proceeding further, it is pertinent to note that Page 6 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026 NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined respondent nos.3 and 7 - original accused nos.4 and 8 have passed away and qua them the appeal stands abated. While for, respondent nos.5, 6 and 8 are concerned, criminal appeal no.286 of 2003 was filed which has been partly allowed and hence, the judgment stands confirmed and need not detain this Court any further, qua them. The judgment is to be examined qua the respondents herein viz.1, 2, 4, 7 and 9.
10. It is noteworthy that respondent nos.1, 2, 4, 7 and 9, have been acquitted, giving benefit of doubt. The issue, therefore, is whether they have been rightly acquitted and whether the impugned judgment suffers from illegality and perversity. Pertinently, FIR was lodged against 10 accused. In the evidence produced, there is not a whisper or any role played and attributed against the remaining respondents. The whole incident revolves around the complainant, his sons and the main accused and his family members and were related to each other. Essentially, the role is attributed against accused no.2 Bharwad Raja Popat and accused nos.4, 6, 7 and 9 (respondent nos.3, 5, 6 and 8). Offence is alleged under sections 302, 323, 325, 147, 148 and 149 of IPC and section 135 of B.P. Act. The learned Judge, on the basis of the evidence, in paragraph 16, has observed that merely because the accused are named in the FIR that by itself, would not prove the unlawful assembly. It has been observed that except the respondent no.3 and his four sons, namely, respondent nos.5, 6, 8 and the main accused, none of the accused, have been attributed any role played in the whole incident. For respondent no.1, no evidence was found against him about inflicting sickle blow in the absence of any eye witness. It is also observed that mere presence of the father and his four sons, making a total of five that would not satisfy that unlawful assembly was formed with a motive to commit a murder. All the accused, were considered having played independent role attracting Page 7 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026 NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined section 34 of the IPC. It may be noted that the accused were not charged under section 34 but were charged under sections 147, 148, 149 of the IPC; however, the ingredients of section 147, 148, 149 were not satisfied.
11. Considering the observations in the judgment acquitting the respondent nos.1, 2, 4, 7 and 9, giving benefit of doubt this Court, is of the considered opinion that no error can be said to have been committed by the learned Judge. At this stage, it would be pertinent to refer to the observations of the Hon'ble Apex Court in the case of Chandrappa v. State of Karnataka reported in (2007) 4 SCC 415. It is well settled that the High Court in an appeal against an order of acquittal has got full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. It is also celebrated principle that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to the innocence, the view which is favourable to the accused should be adopted. In the said case, reference is made to the decision in the case of Bhagwan Singh v. State of M.P. reported in (2002) 4 SCC 85 and the same are reproduced as under :-
"7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such Page 8 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026 NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not".
12. Similarly, in the recent decision in the case of Ramesh & Another v. State of Karnataka reported in (2024) 9 SCC 169, the Apex Court has reiterated the guidelines observing in paragraphs 20 and 21 thus:
"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: (SCC p.432, para 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 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.Page 9 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026
NEUTRAL CITATION R/CR.A/637/2003 JUDGMENT DATED: 21/02/2026 undefined (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."
13. Considering the entire evidence on the record and the principle laid down by the Hon'ble Apex Court, it clearly proves that there is no credible evidence to connect the respondents nos.1, 2, 4, 7 and 9 with the alleged crime. In the case on hand, there is no evidence except the reference in the FIR and that the prosecution could not bring home the point, proving the charges levelled against them beyond reasonable doubt. Therefore, the trial court has not committed any error on facts and in law, let alone acquitting the respondents from the charges levelled against them. The impugned judgment, therefore, does not deserve interference and the captioned appeal is directed to be dismissed and is accordingly dismissed. The judgment, hereby stands confirmed. Record & Proceedings, may be remitted to the concerned trial court forthwith.
Sd/-
(SANGEETA K. VISHEN,J) Sd/-
(VIMAL K. VYAS, J) RAVI P. PATEL Page 10 of 10 Uploaded by RAVI PRAVINCHANDRA PATEL(HC01068) on Fri Feb 27 2026 Downloaded on : Sat Mar 14 04:27:57 IST 2026