Gujarat High Court
Jayesh @ Jaydeep Punjbhai Khuman vs State Of Gujarat on 26 March, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 604 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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Approved for Reporting Yes No
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JAYESH @ JAYDEEP PUNJBHAI KHUMAN
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN BHARDA for MR A A ZABUAWALA, ADVOCATE for the Appellant
MS CM SHAH, ADDITIONAL PUBLIC PROSECUTOR for the State
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT) 1.1 Feeling aggrieved by and dissatisfied with the judgment and order of conviction dated 12.02.2016 passed by the learned 2 nd Additional Sessions Judge, Amreli in Sessions Case No.294 of 2001 for the offences punishable under Sections 302, 307, 326, 397, 398, 147, 148, 224, 225, 324, Page 1 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined 325, 332, 333 and 397 of the Indian Penal Code and Section 135 of the Gujarat Police Act, the appellant - the convict has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 ("the Code" for short), whereby the appellant, along with other accused, has been convicted and sentenced to undergo maximum life imprisonment and also imposed fine.
1.2 It is noted that in all, ten persons were prosecuted for the said offences. During the pendency of the trial, accused No.5 - Vikrambhai Bhagubhai Patgir and accused No.9 - Harjit Pithabhai Helaiya expired and therefore, the trial proceeded against rest of the either accused. On the date of judgment, accused No.3 - Khodabhai Babubhai Khuman had also died. Hence, three different appeals came to be preferred i.e. Criminal Appeal No.609 of 2016 by five accused persons, Criminal Appeal No.739 of 2016 by one accused person and the present one - Criminal Appeal No.604 of 2016 by one accused person - present appellant.
1.3 Two appeals, except the present one, have been concluded and the accused persons are acquitted by the Coordinate Bench of this Court vide judgment and order dated 12.03.2021. The present appellant is the sole appellant Page 2 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined in this appeal.
2. The complainant - Laxman Ramchandra Khamkar, Head Constable, Dindoshi Police Station, Mumbai, has given a complaint with regard to the incident in question before the Savarkundla Town Police Station, mainly for the offences under the Indian Penal Code.
3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the appellant - accused and other persons, charge-sheet came to be filed in the learned competent Court and in turn, committed the case to the Sessions Court concerned as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court concerned, the learned Sessions Judge framed charge at Exh.61 against the appellant - accused, along with other persons, for the offences under Sections Sections 147, 148, 149, 302, 307, 332, 324, 325, 326, 224, 225, 397 and 398 of the Indian Penal Code. The appellant - accused pleaded not guilty and claimed to be tried.
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5. In order to bring home charge, the prosecution has examined some witnesses and also produced various documentary evidence before the learned trial Court, described in Paras 4 and 5 of the impugned judgment and order, which are as under :
Oral Evidence Exhibit No. Name of Witnesses 130 Mustakbhai Rahemanbhai (Panch) 134 Laljibhai Mavjibhai Muchhadiya (Panch) 137 Ghanshyambhai Manjibhai Chudasama (Panch) 138 Nakabhai Maganbhai (Panch) 139 Devshibhai Jethabhai Heleiya (Panch) 145 Dipakbhai Babasaheb Kamble 147 Valisha Rahimsha Sai 150 Laxmanbhai Ramchandra Khamkar (Complainant) 157 Ranjitbhai Shantilal Thakkar 158 Kishorbhai Bhagwanbhai Dhadhal 159 Hareshbhai Bhabhlubhai Dhadhal 162 Ashokbhai Jivabhai Rawal (Panch) Page 4 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined 164 Bakulbhai Ghughabhai Jadav (Panch) 165 Parvezbhai Aminbhai Razbi (Panch) 167 Babubhai Vallabhbhai Solanki (Panch) 170 Girishbhai Jayantibhai Kanani (Panch) 171 Virbhadrasinh Ravubha Sarvaiya (Panch) 173 Mansukhbhai Shardulbhai (Panch) 181 Dr.Shobhnaben Manubhai Mehta 184 Dr. Ashwinkumar Devrajbhai Tank 190 Manjibhai Kalyanbhai Mer (Panch) 195 Girdharbhai Ravjibhai Patel 196 Pravinchandra Mohanbhai Joshi 197 Sukhubha Mangalsinh Gohil 198 Vikramsinh Kanusinh Rathod 200 Popatbhai Muljibhai Patel 209 Dharmendrasinh Anopsinh Jadeja 220 Mukeshkumar Balvantray Jani 236 Dr. Nutan Eklavyabhai Lungatar 249 Bharatbhai Chhanabhai Makwana Documentary Evidence 131 Inquest Panchnama 135 Inquest Panchnama 137 Panchnama of the clothes of the Page 5 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined Complainant and the Witness 140 Panchnama of Scene of Offence 151 Complaint 163 Discovery Panchnama 166 Panchnama of the clothes of deceased -
Rajnikant Bansilal 168 Arrest Panchnama of Accused - Bhabhlu Najbhai 172 Panchnama of blood sample collected by Head Constable Lakhubhai Odhabhai for investigation.
182 P.M. Note of Nandkumar G. Dethe 183 Certificate of Cause of Death 186 Yadi 187 Inquest Form 188 Yadi sent to Medical Officer, Rajkot 191 Map of Place of offence 192 Yadi 201 Report send by P.S.I., Jesor to P.S.I., Savarkundla 221 Acknowledge Receipt for sending the muddamal for chemical analysis.
222 Analysis report of the chemical analyzer Page 6 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined 223 Analysis report of the biology department 224 Analysis report of serological department 225 Analysis report of F.S.L. department 226 Analysis report of the biology department 227 Analysis report of serological department 228 Analysis report of serological department 229 Analysis report of physics department 230 Receipt for handing over the dead-body of Nandkumar G. Dethe 231 Receipt for handing over the dead-body of Rajnikant 233 Report sent by P.S.O. to P.S.I., Dhari 237 O.P.D. Case Papers 238 Refer Note 239 Police Yadi 240 Indoor Case Papers 241 Medical Certificate 245 O.P.D. Case Papers No.2441 dated to 18.04.2001 of Laxman Khamkar, Original 247 Yadi made by P.S.I., Savarkundla and Indoor Case Papers No.1504.
250 Notification Page 7 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the appellants - accused so as to obtain their explanation/answer as provided u/s. 313 of the Code. In the further statement, the appellant
- accused denied all incriminating circumstances appearing against him as false and further stated that they are innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge convicted the appellant - accused of the offences, for which he was tried.
7. We have heard learned advocate Mr. Zubin Bharda for learned advocate Mr. A.A. Zabuawala for the appellant - accused, learned APP Ms. C.M. Shah for the State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing. 8.1 Learned advocate Mr. Zubin Bharda for learned advocate Mr.A.A. Zabuawala for the appellant - accused has submitted that the trial Court has not properly considered the oral and documentary evidence on record; and that looking to the examination-in-chief and the cross-examination of the prosecution witnesses, no witness states any overt act on the part of the present appellant; and that there are vital Page 8 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined improvements in the depositions of the witnesses; and that duly proved contradictions and omission on record are the best piece of evidence so as to decide the credibility and trustworthiness of the prosecution witness; and that looking to the deposition of the complainant, there are major additions, omissions and discrepancies in the statement before the trial Court and statements before the investigating agency, as the complainant had made material improvement upon their earlier statements which cast doubt on the veracity of the testimony of the complaint; and that the entire prosecution evidence has failed to prove charges levelled against the present appellant; and that many prosecution witnesses have declared as hostile and thereby they do not support the case of the prosecution; and that the investigating agency had not conducted any test identification parade; and that the prosecution has failed to prove the common knowledge and intention of the said unlawful assembly.
8.2 He has relied upon the decision of the Coordinate Bench of this Court dated 12.03.2021 recorded on Criminal Appeal No.609 of 2016 with Criminal Appeal No.739 of 2016, whereby this Court has allowed both the appeals of the other accused, in which, the offence is the same. He has further submitted that comparison to those accused, the present Page 9 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined appellant has not played any role in the commission of offence, therefore, the present appellant would be better footing than those accused. This Court has allowed those appeals and quashed and set aside the impugned judgment and order of conviction.
8.3 In support of his submissions, learned advocate for the appellant has relied on the following decisions :
(i) Mohanlal Gangaram Gehani versus State of Maharashtra reported in (1982) 1 SCC 700.
(ii) Karan and others versus State of Kerala reported in (1979) 3 SCC 319.
(iii) Ramanbhai Bhikhabhai Machhi versus State of Gujarat reported in 2014 (4) GLR 3017.
(iv) Chandra Shekhar Bind and others versus State of Bihar reported in (2001) 8 SCC 690.
(v) Bhupan versus State of M.P. reported in (2002) 2 SCC 556.
(vi) Rameshbhai Hajabhai Chachiya versus State of Gujarat reported in 2012 (3) GLR 2250.
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NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined 8.4 He, therefore, prayed to allow this appeal and acquit the appellant - accused by setting aside the conviction and sentence awarded by the learned trial Court.
9. Learned APP Ms. C.M. Shah for the State has vehemently opposed the submissions canvassed by learned advocate for the appellant. She has submitted that merely because there was no test identification parade held by the investigating agency, it would not be fatal to the prosecution case. She has further submitted that in a mob when number of persons have participated and are using their deadly weapons and giving blows to different persons indiscriminately, it would be difficult for a person, who was under fear and had sustained injuries, to remember the actual occurrence of crime and weapon used by each of the accused who had participated in the crime. She has submitted that conviction and sentence imposed by the trial Court vide impugned judgment is required to be sustained.
10. Heard learned advocates.
11.1 The short facts arising from the record are that, on 18.04.2001 an incident took place at village Mekda of Savarkundla Taluka of District Amreli between the police Page 11 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined officers of Dindoshi Police Station of Mumbai, Maharashtra as well as the villagers of the aforesaid village at around 6 a.m. of the said day. In all, four persons lost their lives, including one police officer from Maharashtra and a panch witness who had travelled from Mumbai alongwith the police party and two persons from the accused side.
11.2 That, a C.R.-I No.7 of 2001 was registered with Savarkundla Town Police Station from the offences punishable under Section 302 etc. of the IPC against the police officer who had allegedly opened fire and had lost life in the incident, whereas, FIR being C.R.-I No.8 of 2001 was registered with the same police station against the present appellant, Sarpanch of Village : Mekda, his brother and brother of present appellant (who were not named in the FIR and have lost their lives in the incident), who were part of the mob. We are concerned with the FIR being C.R.-I No.8 of 2001 registered with the Savarkundla Town Police Station. 11.3 One Laxman Ramchandra Khamkar, who was Head Contable of Dindoshi Police Station of Malad (E), Mumbai, Maharashtra lodged an FIR with Savarkundla Town Police Station declaring that on 15.04.2001 at around 23:30 hours, they left Mumbai along with the present appellant in connection with the recovery of muddamal in connection with Page 12 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined FIR being C.R. No.500 of 2000 offences registered with the Dindoshi Police Station for the offences punishable under Sections 392, 394, 395, etc., of the IPC. That, PSI Mr. Nandkumar Dethe, Police Contable Mr.Dipakbhai Babasaheb Kamble, the complainant Mr. Valisha Rahimsha Sai of C.R. No.500 of 2000, a Panch viz., Rajnikant Shah, resident of Mumbai (who has lost his life in the incident) as well as another Panch Driver Mr. Shinde hired a private Tata Sumo vehicle from Mumbail. The appellant - Jayeep who was arrested and accused in that crime along with his wife also travelled in the said vehicle.
11.4 That, when they reached at Village : Mekda at around 6:00 a.m., on 18.04.2001 and were inquiring about the house and relatives of Jaydeep, a mob of 20 to 25 persons came, in which, Sarpanch of Village : Mekda, brother of the Sarpanch, 2 to 3 elderly persons and elder brother of the present appellant came with deadly weapons like axe, stick, sword, etc. That, the brother of the appellant had a knife in his hands and all of them attacked with the said weapons to rescue the present appellant. At that time, to save the police party who had travelled from Mumbai, when PSI Mr. Dethe opened fire from his service revolver, brother of Jaydeep snatched away the service revolver of PSI Mr. Dethe and subsequently, the members of the mob gave indiscriminate Page 13 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined blows to PSI Mr. Dethe, complainant himself and another Head Constable Mr.Kamble, Driver Mr. Shinde were also given indiscriminate blows. At that time, local police in jeep and all the four injured persons were shifted to the Government Hospital of Savarkundla, where the FIR came to be recorded. At that time, it was revealed that PSI Mr. Dethe had succumbed to the injury in the hospital. Further, on the same day, i.e. on 18.04.2001, Panch Mr. Rajnikant Shah, who had travelled from Mumbai, also succumbed to the injury.
12.1 We have heard learned advocates appearing for the respective parties and scrutinized the deposition of eye- witnesses, Medical Officers and Investigating Officers. We have also gone through the panchnama, postmortem note of PSI Mr. Dethe, serological report of Forensic Science Laboratory as well as the record and proceedings of the sessions case.
12.2 It is an undisputed fact that in the incident in question, which took place on 18.04.2001, four persons i.e. two from the police party who had travelled from Mumbai to Village : Mekda for discovery of muddamal of alleged loot of diamonds at the instance of the appellant, and two persons from the accused side, have lost their lives. It is proved Page 14 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined beyond doubt that the complainant - Laxman Khamkar (PW8) along with PSI Mr.Nandkumar G. Dethe, Police Constable Mr. Dipak Kamble (PW6), the original complainant of Dindoshi Police Station registered as C.R. No.500 of 2000, Mr. Valisha Rahimsha Sai (PW7), local Panch from Mumbai Mr.Rajnikat Shah and another Panch Mr. Shinde who also drove a private vehicle Tata Sumo, the accused of the crime viz., Jaydeep - present appellant along with his wife and minor daughter had reached Village : Mekda of Taluka :
Savarkundla at around 6:00 a.m. and were inquiring about the house of the appellant and his relatives. As per the say of the complainant, as stated in the FIR (Exh.151), 20 to 25 persons, including the Sarpanch, his brother and elder brother of the appellant who had knife in his hand, attached the police party. Though he has stated in the FIR that Police Inspector Mr. Dethe had opened fire, however, has not disclosed the same before the Court. It is undisputed fact that though name of the present appellant has been referred to in the FIR, but if his deposition is scrutinized, it appears that he has clarified that he knew Sarpancha since the appellant who had travelled along with him had introduced the person as Sarpanch. He has not named any other person who were prosecuted before the trial Court. He has admitted in his cross-examination that no test identification parade has been held by the investigating agency and is unable to Page 15 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined identify any of the accused who were present in the Court. He has also admitted that he is unable to pinpoint as to which accused allegedly used which type of weapon and who had given blows to the deceased i.e. PSI Mr.Dethe and Mr.Rajnikant Shah. He has also admitted in his cross- examination that he was not aware about the name of any of the accused except the name of present appellant and Shivraj (deceased brother of the appellant). He has also admitted that before the Medical Officer at Savarkundla Government Hospital, he has not named any of the accused. Similar is the say of another eye-witnee viz., Deepak Kamble (PW6). He is unabel to say as to which accused had used which weapon and had given blow to whom. It is true that before the trial Court, he has identified the appellant, who was sitting in the Court room, however, he is unable to say as to which accused had used which weapon and had given blow to which deceased or the injured witnesses. The third witness viz., Mr.Valisha Sai (PW7) has not named any of the accused and is unable to identify any of the accused. He is not even able to identify the weapon alleged to have been used in the crime.
12.3 It is undisputed fact that all these three witnesses are from Mumbai, Maharashtra and none of them had ever seen all the accused prior to incident and therefore, it was Page 16 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined the duty of the Investigating Officer to arrange for test identification parade before roping in the villagers in the crime. In the FIR, it is alleged that 20 to 25 persons had attached, however, the investigating agency has arrested 10 accused persons and there is no explanation as to on what basis they have been arrested and that too after two days of the incident. In such circumstances, the ratio laid down by the Hon'ble Apex Court in the case of Mohanlal Gangaram Gehani (supra) would be applicable. In the said case, the facts were similar to that of the present case. In the case of Karan and others (supra), the Hon'ble Apex Court has held that failure to conduct test identification parade in respect of the accused unknown to the witness and identification by such witnesses of the accused in the Court raises serious doubt and such testimonies are required to be excluded. In the present case, it is an undisputed fact that even admitted by the witnesses that they have seen the accused for the first time at the time of occurrence and seen subsequently, at the time of trial i.e. after a period of ten years and therefore, being identified by one of the eye-witnesses that too in general, would, in our opinion, raise serious doubt about whether the real assailants have been arraigned in the crime or not ? Similar is the ratio laid down by the Division Bench of this Court in the case of Ramanbhai Bhikhabhai Macchi (supra). It is also pertinent to note that some clashed Page 17 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined have taken place between the police personnel who were in civil dress as admitted one of the witness and whether the real assailants have been arraigned in the crime or not ? Similar is the ratio laid down by the Division Bench of this Court in the case of Ramanbhai Bhikhabhai Machhi (supra). It is pertinent to note that some clashes have taken place between police personnel who were in civil dress as admitted by one of the witness and villagers wherein number of accused have been roped in and therefore, at least two witnesses should be found to be trustworthy. Hence, in the present case, therefore, the ratio laid down by the Hon'ble Apex Court in the case of Chandra Shekhar Bind and others (supra) would be applicable. In light of the above ratio and in the facts of the case as stated hereinabove and in view of the fact that none of the eye-witness has identified any of the accused as assailants of the mob, the prosecution has failed to bring home the charges against the appellant. 12.4 In the present case, there is no evidence of any witness that the appellant has assaulted any person with weapon which is resulted into death. Only one witness has stated that the appellant was armed with stick and was standing there, but not deposed that the appellant has assaulted on the deceased by the said stick and not any overt act is attributed to the present appellant as most of Page 18 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined the witnesses have deposed that the present appellant had fled away from the place of incident. In fact, the appellant is the accused of another case registered with the Dindhoshi Police Station, Mumbai and the police party has taken the appellant for recovery of muddamal article. The wife and minor daughter of the appellant were also with them. Under the circumstances, since no specific role attributed to the appellant vis-a-vis the other accused have been acquitted by the Coordinate Bench of this Court vide judgment and order dated 12.02.2021 recorded on Criminal Appeal No.609 of 2016 with Criminal Appeal No.739 of 2016, who have major role than the appellant vis-a-vis many witnesses turned hostile vis-a-vis the discrepancies in the depositions of the witnesses more particularly the complainant himself, it tilts the balance in favour of the present appellant and the present appeal deserves to be considered.
13.1 In view of the aforesaid discussion and re- appreciation of the entire evidence on record, the Court is of the considered opinion that the prosecution has not proved the case beyond reasonable doubt by leading cogent and convincing evidence and the trial court has not appreciated the entire evidence in its true perspective. On going through the entire evidence led by the prosecution; both, ocular as well as documentary, it appears that the complainant has not Page 19 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined supported the case of the prosecution regarding essential ingredients of the offence. Similarly, the evidence of the panch-witnesses disclose some glaring aspects which cast serious doubt about the story of the prosecution. Considering the aforesaid, it cannot be said that the prosecution has proved the case beyond reasonable doubt. 13.2 Before parting with the judgment, it would be apt to reiterate the fundamental principle of criminal jurisprudence as affirmed by the highest court that, in criminal trial, it is for the prosecution to bring home the guilt of the accused since the burden of proving the guilt beyond reasonable doubt always rests upon the prosecution. It is also settled that the prosecution has to stand on its own legs and cannot take advantage or undue advantage of the defence put-forth by the accused. The Apex Court, in the case of Rabindra Kumar Dey versus State of Orissa reported in AIR 1977 SC 170, reiterated three cardinal principles, viz.,
(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (ii) that in a criminal trial, the accused must be presumed to be innocent unless he is proved to be guilty; and (iii) that the onus of the prosecution never shifts.
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NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined 13.3 Keeping in mind the cardinal principles of the criminal jurisprudence as stated herein above and considering the evidence on record, this Court is of the considered opinion that in the instant case, it cannot be said that the prosecution has proved the case beyond reasonable doubt by leading cogent and convincing evidence and, therefore, the benefit of doubt goes in favour of the appellant - accused.
14. On the facts and in the circumstances of the case, this Court is of the opinion that the evidence led by the prosecution are contradictory and the same cannot be relied upon. Thus, it appears that the trial court has fell in error while convicting the present appellant for the alleged offence and, therefore, interference by this Court is warranted.
15. In view of the fact that in absence of sufficient material on record, though the prosecution has examined three eye-witnesses and in view of above all aspects, the appellant ought to have been given benefit of doubt by the learned trial Court. Hence, we are of the opinion that the appeal requires consideration.
16. In view of above, the present appeal is hereby allowed. The impugned judgment and order dated 12.02.2016 Page 21 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025 NEUTRAL CITATION R/CR.A/604/2016 JUDGMENT DATED: 26/03/2025 undefined passed by the learned 2 nd Additional Sessions Judge, Amreli in Sessions Case No.294 of 2001 is quashed and set aside. The appellant be set at liberty, forthwith, if not required in any other offence. The amount of fine, if any, paid by the appellant - accused shall be refunded to him immediately. Record and proceedings are ordered to be sent back to the concerned trial Court, forthwith.
Sd/-
(ILESH J. VORA,J) Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 22 of 22 Uploaded by M.H. DAVE(HC00193) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 22:56:05 IST 2025