STATE OF GUJARATversusHARDEVBHAI CHANDUBHAI VINZUDA

     R/CR.A/880/2001                                   JUDGMENT DATED: 05/03/2026




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 880 of 2001

                          With
     R/CRIMINAL REVISION APPLICATION NO. 550 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
        HARDEVBHAI CHANDUBHAI VINZUDA & ORS.
=========================================
Appearance:
MR J K SHAH, APP for the Appellant(s) No. 1
MR P P MAJMUDAR(5284) for the Opponent(s)/Respondent(s) No.
1,2,3,4
=========================================
 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
        and
        HONOURABLE MR. JUSTICE R. T. VACHHANI

                              Date : 05/03/2026

                 ORAL JUDGMENT
 (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)


1.      Feeling aggrieved and dissatis7ed with the judgment and
order of acquittal dated 17-8-2001 passed by the learned Sessions
Judge, Bhavnagar in Sessions Case No. 217/2000 for the oAences
punishable under Sections 302 read with 34 of the Indian Penal
Code and Section 135 of the Bombay Police Act, the appellant –
State has preferred the present Criminal Appeal No. 880 of 2001
under Section 378 of the Code of Criminal Procedure, 1973 (“the
Code” for         short).   The victim’s     father,   Bharatbhai        Ranabhai



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Makwana, feeling aggrieved and dissatis7ed with the same
judgment and order of acquittal, has preferred the present
Criminal Revision Application no. 550 of 2001.



2.      The brief facts leading to the 7ling of the present appeal and
revision application are as under:


2.1.    As     per     the   prosecution    case,   the    complainant’s       son,
Shaileshbhai Bharatbhai Makwana, has died. There was enmity
between the deceased and the accused No.1 Hardev Chandu on
account of the deceased having a love relationship with Hardev
Chandu’s sister Beni, and the deceased and Beni having taken
photographs together, the knowledge of which had come to Hardev
Chandu. According to the prosecution, on 31-8-2000, around 7:00
p.m. to 7:30 p.m. near Sai Baba Temple, Bhavnagar, when the
deceased Shailesh was proceeding towards the temple for darshan
as per his routine on Thursdays, the accused persons Hardev
Chandu, Haresh @ Katti Chiman, Haresh @ Hariyo, and Raydan @
Raju, who were lying in wait, assaulted him with sharp weapons. As
a result of the assault, Shailesh sustained multiple injuries and fell
in a pool of blood near the temple. The accused persons then Ied
towards Ambika Flat side. Thereafter, the police arrived, removed
the injured Shailesh in the Eagle-2 mobile van to the hospital,
where he was declared dead.


2.2.    Taking         all   these   circumstances        into   account,          the
prosecution's case emerged as the four accused persons with
common intention and in furtherance thereof, assaulted and caused
the death of Shaileshbhai by inIicting injuries with sharp weapons
near Sai Baba Temple on the evening of 31-8-2000. They acted in
concert and shared the common intention to commit murder.


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Accordingly, the prosecution presented its case and framed
charges against the accused persons under Sections 302 read with
34 of the IPC and Section 135 of the Bombay Police Act. The B
Division Police Station, Bhavnagar completed the investigation of
this oAence and 7led the charge sheet before the Chief Judicial
Magistrate, Bhavnagar, from where the case was committed to the
Court of Sessions.


3.      On conclusion of evidence, the Sessions Court put various
incriminating circumstances to the respondents-accused under
Section 313 of the Code. The respondents-accused denied all
allegations and claimed to be innocent. After hearing both sides
and appreciating the oral and documentary evidence, the learned
Sessions Judge acquitted all the accused persons by giving them
the bene7t of doubt, mainly on the ground that the sole eye-witness
Bharatbhai Rukhadbhai Dabhi was unreliable, there were material
contradictions and unnatural conduct, no independent witnesses
were examined despite the incident occurring in a crowded public
place in broad daylight, the discovery and recovery of weapons was
doubtful and not in strict compliance with Section 27 of the
Evidence Act, and the prosecution failed to establish the chain of
circumstances beyond reasonable doubt linking the accused with
the crime.


4.      We have heard learned APP for the State and learned
advocate for the applicant as well as the learned advocate for the
respondents-accused, and perused the oral and documentary
evidence adduced before the learned Sessions Court as well as the
impugned judgment.


5.      Learned APP and learned advocate for the applicant submits


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that the impugned order of acquittal is perverse, contrary to the
evidence on record and requires to be set aside and reversed
because the evidence of the eye-witness Bharat Dabhi at Exh.30,
who is also an close friend of the deceased and who identi7ed the
accused persons in Court, fully establishes the presence and overt
acts of the accused; the medical evidence post-mortem report and
nature of injuries fully corroborates the ocular account of assault
with sharp weapons; the recovery of blood-stained weapons and
FSL and Serological reports linking the blood group to the
deceased support the prosecution case; the motive that enmity on
account of love aAair with the sister of accused No.1 stands proved
through the evidence; the learned sessions court erred in
discarding the testimony of the sole eye-witness on Iimsy grounds
of alleged unnatural conduct and in not appreciating the evidence
in its proper perspective.



6.       They therefore prayed for allowing the Criminal Appeal
preferred by the State, setting aside the acquittal, convicting the
respondents under Sections 302 read with 34 IPC and Section 135
BP Act, and awarding appropriate sentence; and for allowing the
Criminal Revision Application preferred by the complainant- father
of the deceased in similar terms.


6.1      The learned advocate for the appellant has relied upon the
various judgments of the Hon’ble Supreme Court in Jarnail Singh
& Ors. vs. State of Punjab [(2009) 9 SCC 719], State through
Central          Bureau   of   Investigation   vs.     Parmeshwaran
Subramani and Another, Sachchey Lal Tiwari vs. State of
U.P., State of A.P. vs. K. Srinivasulu Reddy and Another and
Lalli alias Jagdeep Singh vs. State of Rajasthan. However,
these judgments are not helpful in the facts and circumstances of


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the present case.


7.       The     sole   eye-witness    examined      by   the   prosecution        is
Bharatbhai Rukhadbhai Dabhi at Exh.30, who claims to be a close
friend of the deceased Shailesh for about 7–8 years. According to
his deposition, he met the deceased accidentally near Don Chowk
while proceeding to Sai Baba Temple for darshan on the evening of
31-8-2000. The deceased allegedly con7ded in him for the 7rst time
that he had a love relationship with Rekha (sister of accused No.1
Hardev Chandu) and that they had taken photographs together two
days earlier, and that Hardev had come to know about it. Bharat
claims that while they were walking together, a cow came in
between, made him to stop and lag 8–10 feet behind the deceased.
He then allegedly saw the four accused persons Hardev Chandu
armed with a talwar and the other three with chharis lying in wait
near the J.E.B. sub-station close to Sai Baba Temple, surround the
deceased, and assault him with the said weapons, causing him to
fall in a pool of blood on the road. Bharat further deposed that the
accused Ied towards Ambika Flat with their weapons, that police
arrived in minutes in the Eagle-2 van, removed the injured
Shailesh, and that he immediately went to inform the complainant-
father of the deceased, then went home, took his cycle, and
reached the hospital much later around 10:00 p.m., where he
claims to have met the complainant.


7.1      The conduct of this sole eye-witness Bharat Dabhi is
unnatural and raises serious doubts about his presence at the
scene and the truthfulness of his account. Being admittedly a very
close friend of the deceased, having known him for several years
and frequently meeting him though he claims not daily, it is highly
improbable and against normal human conduct that he would stand


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     R/CR.A/880/2001                         JUDGMENT DATED: 05/03/2026




8–10 feet away, witness the brutal assault with sharp weapons on
his friend in broad daylight, see his friend fall bleeding profusely,
yet do absolutely nothing and not even raise an alarm, try to
intervene, chase the assailants, or go near the injured person to
render help or ascertain his condition. Instead, he claims he got
frightened because “police were beating the public” though all
police witnesses have denied any lathi-charge or beating of public
at the spot, ran away without informing anyone at the scene, went
straight to the complainant’s house to narrate the incident, then
went home, and only much later went to the hospital. He did not
accompany the complainant to the hospital, did not stay with the
grieving family, and did not even go to the spot again with the
complainant or police. This conduct is inconsistent with that of a
genuine eye-witness and close friend. Whether he is a chance
witness as claimed - accidental meeting or planted, his deposition
requires the closest scrutiny and does not inspire con7dence. The
learned sessions court rightly appreciated these circumstances and
found his testimony unreliable.


8.      The complainant Bharatbhai Ranabhai Makwana at Exh.21,
father of the deceased, is a hearsay witness who had no personal
knowledge of the incident. He deposed that Bharat Dabhi came to
his house around 8:00–8:30 p.m. on 31-8-2000 and narrated the
entire story the alleged love aAair between Shailesh and Rekha
(Beni), the photographs, Hardev Chandu learning about it, the four
accused assaulting Shailesh with sharp weapons near Sai Baba
Temple, Shailesh falling in a pool of blood, and police taking him to
hospital. Acting on this information, the complainant fetched his
wife from her brother’s house and then went to Sir T. Hospital,
where he learned of his son’s death and lodged the FIR at Exh.22
at 9:00 p.m. based solely on what Bharat Dabhi had told him. His



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testimony adds no independent value to the prosecution case. In
cross-examination, he admitted that he had no prior knowledge of
the love aAair, photographs, or any enmity with the accused; he did
not know the accused by name or face before the incident; all
details came only from Bharat Dabhi on the day of occurrence; and
he had no direct information about the assault. These factors
render his evidence wholly dependent on the unreliable testimony
of Bharat Dabhi and incapable of providing any independent
corroboration. The learned sessions court correctly treated it as
hearsay and insuAicient to prove the guilt of the accused beyond
reasonable doubt.


9.       No independent witness neither any passer-by, nor any
devotee going to or coming from Sai Baba Temple, nor any
shopkeeper, vegetable vendor, security person, or person selling
prasad, Iowers, near the temple has come forward to support the
prosecution case or to depose about seeing the assault or the
accused persons at or near the scene. The incident is alleged to
have occurred in a busy public place, near a popular temple on a
Thursday evening a day when large numbers visit for darshan, at a
four-road junction with parking, and residential buildings around.
Despite this, the prosecution examined only one eye-witness the
friend of the deceased and failed to produce any independent or
neutral witness from the locality or the crowd. This complete
absence of corroboration from independent sources in a crowded,
public, daylight incident further weakens the prosecution case and
supports the learned Sessions court’s 7nding that the story appears
unnatural and concocted.


10.      The panch witnesses examined for various panchnamas have
either turned hostile in part, given inconsistent versions, or failed



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to inspire con7dence. Importantly, the panch for the discovery
panchnama of the weapons at Exh.35 Dineshkumar Ramaniklal
deposed that all four accused were kept together at the police
station, were shown to him as the accused persons, and then taken
in a jeep one by one to an open place near Cassent Circle, under a
babool tree, where all four weapons were allegedly recovered from
the same open, accessible spot. He admitted that the place was
open to public movement, 50 feet from huts, and that panch
signatures were taken at the police station itself. No conversation
with the accused was allowed in his presence, and he further
admitted that he had appeared as a panch in previous sessions
cases and other matters. Thus, the so-called discovery or recovery
is joint, from an open public place accessible to all, not from
exclusive possession of any accused, and does not satisfy the strict
requirements of Section 27 of the Evidence Act for admissibility as
a discovery statement. The panch witnesses appeared over-
enthusiastic or tutored, with material contradictions between their
versions and the police witnesses.


11.      A signi7cant weakness in the prosecution case is the failure
to conclusively connect the recovered weapons and blood stains to
the crime. Though FSL and serological reports at Exh.53 and 55
were produced showing “B” group blood on some weapons and
clothes matching the deceased’s blood group, the chain remains
incomplete because: (i) the place of recovery was open and public,
(ii) joint recovery from one spot does not implicate any individual
accused exclusively, (iii) no independent witness saw the accused
with weapons at the time of assault, and (iv) the sole eye-witness’s
testimony being unreliable, there is no credible link. No last seen
together evidence exists showing the deceased in the company of
the accused prior to the incident. The motive love aAair with sister



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of accused No.1 is spoken of only by the unreliable eye-witness and
the complainant who admitted he had no personal knowledge and
learned only from Bharat Dabhi on the day of incident.


12. Thus, the only circumstances sought to be proved are the
testimony of one unreliable eye-witness, a doubtful joint recovery
from an open public place, and blood group matching which is not
conclusive       without   further    corroboration.    The     chain        of
circumstantial evidence is broken at several vital links, absence of
independent ocular or corroborative evidence, unnatural conduct of
the sole eye-witness, failure to examine any temple-goer or passer
by despite crowded locality, unreliable panch witnesses, and non-
compliance with Section 27 Evidence Act requirements.


12.1 As held by the Hon’ble Supreme Court in State of Rajasthan
vs. Hanuman 2025 SC 691, mere recovery of a blood-stained
weapon matching the deceased’s blood group is not, by itself,
suAicient to sustain a conviction under Section 302 IPC in the
absence of a complete chain of circumstantial evidence proving the
guilt of the accused beyond reasonable doubt.


12.2 In such circumstances, the learned Sessions Court rightly
held that the prosecution has failed to prove the charges beyond
reasonable doubt. The medical evidence, post-mortem establishes
homicidal death by sharp weapon injuries, but the identity of the
perpetrators and their role has not been established.


13. It is settled law that in an appeal against acquittal and similarly
in revision challenging acquittal, there is a double presumption in
favour of the accused. Unless the 7ndings of the learned Sessions



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Court are shown to be perverse or based on no evidence, the Court
will not interfere merely because another view is possible. The view
taken by the learned Sessions Judge that the prosecution has
miserably failed to establish the guilt of the accused persons
beyond reasonable doubt due to unreliable sole eye-witness, lack of
independent             corroboration,     unnatural     conduct,    and     doubtful
recovery is not only a possible view but the only reasonable and
correct view on the evidence on record.


14.      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 [(2022) 3 SCC 471] encapsulated the legal
position covering the 7eld 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    su4icient   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 “5ourishes 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



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                 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,
                 rea4irmed 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
                 7nding of acquittal recorded by the trial court.”



15.      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: -


         “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 7nding 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.”


16.      In the light of the above discussion, the detailed appreciation
of evidence by the learned sessions court, and the settled legal
position regarding appeal against acquittal double presumption in
favour of the accused, interference only if the view taken is
perverse or impossible on the evidence, the prosecution has
miserably failed to prove the guilt of the respondent-accused
beyond reasonable doubt. The sole eye-witness Bharat Dabhi’s


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testimony             is      unreliable              due         to     unnatural               conduct,             material
contradictions,                  and lack               of corroboration;                        the       complainant’s
evidence is purely hearsay and dependent on the same unreliable
source; no independent witness from the crowded public place has
been examined; the joint discovery or recovery of weapons from an
open, accessible public spot does not satisfy Section 27 of the
Evidence Act or inspire con7dence; and the chain of circumstances
remains broken at vital links. The impugned judgment and order of
acquittal dated 17-8-2001 passed by the learned Sessions Judge,
Bhavnagar in the Sessions Case No. 217 of 2000is well-reasoned,
based on proper appreciation of evidence, and does not call for any
interference by this Court.


17. The Criminal Appeal preferred by the State and the Criminal
Revision Application preferred by the complainant-father of the
deceased are devoid of merit and are accordingly dismissed. The
judgment and order of acquittal is con7rmed. Records and
Proceedings, if any, be remitted to the Court concerned forthwith.




                                                                                               (ILESH J. VORA,J)



                                                                                          (R. T. VACHHANI, J)
Kaushal Rathod
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: KAUSHAL MAHESHBHAI RATHOD(HCD0078), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 05/03/2026 12:43:27




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