Deliberate Omissions And Hostile Witnesses Render Conviction Unsustainable: Gujarat HC

Calculated and deliberate omissions in witness testimonies that contradict earlier police statements serve as fatal grounds for discrediting the prosecution's case, particularly when the accused were not named in early medical records. The High Court of Gujarat has quashed the conviction of two individuals, ruling that when witnesses take a 'somersault' during trial to assist real culprits or falsely implicate others due to pending cross-cases, the resulting evidence lacks judicial credence.

A division bench comprising Justice Gita Gopi and Justice L. S. Pirzada adjudicated upon two criminal appeals challenging a 2012 conviction by the Sessions Court at Himmatnagar. The appellants had been convicted under Section 323 of the Indian Penal Code and Section 135 of the Bombay Police Act following a 2009 village clash. The Court scrutinized whether the testimony of witnesses who turned hostile could still form the basis of a conviction under the Indian Penal Code.

Fatal Inconsistencies in Witness Testimonies

The Court observed that the complainant (PW6) and several injured witnesses (PW7 to PW11) failed to support the version of events they had initially provided to the police. While the prosecution invoked Section 149 of the Indian Penal Code, alleging an unlawful assembly, the trial court had already acquitted the majority of the accused, thereby dismantling the theory of a common illegal object. The bench noted that the complainant, despite identifying the appellants in court, had specifically denied the presence of an unlawful assembly in his examination-in-chief.

Regarding the credibility of the witnesses, the Court, in its reasoning, observed: "The omission as contradiction in the testimony of the witnesses are vital to create doubt and resultantly to disbelieve the witnesses completely. Here in the instant case, the omission is deliberate and calculative, it is not owing to error of observation normal error because of loss of memory on account of time lapse. The planned omission in the testimony before the trial Court becomes very obvious to term the witnesses as unreliable and untrustworthy to extend benefit of doubt to the accused."

Reliance on Precedents

The Court referred to the decision in Masalti vs. State of Uttar Pradesh ( "AIR 1965 SC 202": 1964 CaseBase(SC) 74), which explains the vicarious liability under Section 149 of the Indian Penal Code, noting that mere presence in an assembly does not suffice without a common object. Furthermore, the bench cited Sunil Kumar Sambhudayal Gupta (Dr.) and Others v. State of Maharashtra ( "(2010) 13 SCC 657": 2010 CaseBase(SC) 257) to highlight that material discrepancies that are not normal for a truthful witness corrode the credibility of the party's case. It also relied on Mohammed Jabar Ali v. State of Assam to establish that evidence of relative witnesses can be rejected if there are material contradictions and improvements.

The Court has following directions:

"The judgment and order of conviction and sentence dated 09.11.2012 of the learned 4th Additional Sessions Judge, Himmatnagar. in Sessions Case No.24 of 2010 is set aside. The appellants are acquitted of all the charges levelled against them. Bail/bail bond, stands discharged. The amount of fine paid, if any, be refunded to the appellants herein."

Background

The dispute originated on January 2, 2009, at Village Salal, starting with a verbal quarrel over the throwing of water. A clash ensued involving eighteen individuals across two groups, resulting in one death (forming the basis of a separate murder trial) and injuries to several others. The current appellants were charged with forming an unlawful assembly and beating witnesses with sticks.

During the trial, the Medical Officers (PW1 and PW5) confirmed that the names of the present appellants were not mentioned in the initial medical histories recorded at the Civil Hospital or the Primary Health Centre. All primary prosecution witnesses (PW6 to PW11) were declared hostile after they contradicted their police statements during the trial. The High Court concluded that the witnesses had made a calculated attempt to implicate only those who did not agree to a settlement in the cross-case, leading to the acquittal of the appellants.

Case Details:
Case No.: R/CRIMINAL APPEAL NO. 1905 of 2012 With R/CRIMINAL APPEAL NO. 1907 of 2012
Neutral Citation: 2026:GUJHC:61384-DB
Case Title: Yuvrajsinh Kamalsinh Parmar Versus State Of Gujarat
Appearances:
For the Petitioner(s): Ms Afrin Saiyed For Mr Aftabhusen Ansari, Mr Aamir S Pathan, Mr Shrikar H Bhatt
For the Respondent(s): Mr Manan Maheta, Additional Public Prosecutor

Source: 2026 CaseBase(GUJ) 24927