Gujarat High Court
Ramsinh Kalyanji Bihari vs State Of Gujarat on 4 April, 2025
NEUTRAL CITATION
R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025
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Reserved On :-
Pronounced On : 04/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 232 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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RAMSINH KALYANJI BIHARI
Versus
STATE OF GUJARAT
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Appearance:
DARSHAN M VARANDANI(7357) for the Applicant(s) No. 1
MR. SOAHAM JOSHI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
1. Present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 is preferred, inter alia, challenging order dated 7.12.2016 passed by learned 3rd Additional Sessions Judge, Gandhidham - Kachchh (hereinafter referred to as 'the appellate Court') in Criminal Appeal No. 01 of 2013 confirming the order dated 4.12.2012 passed by 4 th Page 1 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined Additional Chief Judicial Magistrate, Gandhidham- Kachchh (hereinafter referred to as 'the trial Court') in Criminal Case No. 1406 of 2004.
2. The facts leading to filing of the present revision application is that one Kasam Kherudin Maniyar filed a complaint on 21.4.2004 at 00:45 hours, before the Gandhidham Police Station, which came to be numbered as C.R. No. I-159 of 2004 for the offences punishable under Section 323, 324, 504, 506(2) and 114 of the Indian Penal Code, 1860.
3. It was the case of the prosecution that on 20.4.2004 at around 18:30 hours, applicant and other accused had abused, accused and beaten as well as threatened the complainant which resulted into injuries being inflicted to the complainant. The applicant and other accused persons were arrested on 22.4.2004. On 13.6.2004, charge-sheet was filed. Subsequent to filing of charge- sheet, charges came to be framed and trial in Criminal Case No. 1406 of 2004 came to be conducted.
4. Upon conclusion of the trial, all the accused persons Page 2 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined were acquitted from charge of offence under Section 324, 504, 506(2), 114 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act. At the same time, all the accused were convicted under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of 3 years and fine of Rs.5,000/- each. All the accused were also convicted for offence under Section 323 of the Indian Penal Code, 1860 and were sentenced to undergo rigorous imprisonment of one year and fine of Rs.1,000/- each. Being aggrieved by judgment and order dated 4.12.2012 passed by the trial Court in Criminal Case No. 1406 of 2004, all the accused preferred an appeal under Section 374 (3) of the Code of Criminal Procedure, being Appeal No. 01/2013 before the learned appellate Court. The learned appellate Court, by way of impugned order dated 7.12.2016, rejected the appeal of all the accused. Being aggrieved by the impugned order dated 7.12.2016, present revision is preferred by only one of the three accused being Ramsinh Kalyanji Bihari.
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NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined
5. Having heard Mr. Darshan Varandani, learned advocate for the revisionist-applicant and Mr. Soaham Joshi, learned Additional Public Prosecutor. The main bone of contention raised by Mr. Darshan Varandani, learned advocate for the applicant is with regard to mis- appreciation of the evidence. It has been submitted that the only ground of conviction of present revisionist- applicant is deposition of two people i.e. injured eye- witnesses Saakirbhai, who is examined below Exh-25 and complainant injured eye-witness Kasambhai, who is examined below Exh-17. Mr. Varandani, after taking the Court minutely through the depositions of PW-1 - complainant Kasambhai and PW No.2 injured Saakirbhai, submitted that the allegations made by Saakirbhai is that the present revisionist -applicant i.e. Ramsinh Kalyanji Bihari had come with an iron pipe and had beaten the complainant Kasambhai. However, in the deposition of Kasambhai the role attributed to present applicant is only to the extent of standing there and caught holding of Sabirbhai. Therefore, according to Mr. Varandani, the Page 4 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined only evidence of two eye-witnesses does not implicate present applicant in any way and there are no other evidences against the present revisionist-applicant. Therefore, learned trial Court as well as learned appellate Court has completely mis-read the evidence. In view of the same, he has submitted to allow the present revision application.
6. Per contra, Mr. Soaham Joshi, learned Additional Public Prosecutor has submitted that the learned trial Court as well as learned appellate Court has convicted the present revisionist-applicant after taking due consideration of the testimonies of the witnesses and medical evidences. However, it has been categorically accepted by Mr. Soaham Joshi, learned Additional Public Prosecutor that after going through the impugned judgment and order dated 4.12.2012 passed by learned trial Court as well as order dated 7.12.2016 passed by learned appellate Court as well as all the evidences in the record and proceedings, the only evidence against the present revisionist-applicant is qua the testimonies of PW- Page 5 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025
NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined 1 Kasam Kherudin (complainant) and PW-2 Saakir Satuji. It has been categorically accepted by Mr. Joshi, learned Additional Public Prosecutor that the only evidence to implicate the present revisionist-applicant is testimonies of the two witnesses. If was further stated that Medical Certificate and history does not provide name of present applicant and there is no further evidence against present applicant.
7. Having heard Mr. Darshan Varandani, learned advocate for the revisionist-applicant and Mr. Soaham Joshi, learned Additional Public Prosecutor and perusing the material on record, the case of the revisionist- applicant hinges on testimonies of two witnesses i.e. PW- 1 Kasam Kherudin (complainant) and PW-2 Saakir Satuji.
8. It is true that in revision, this Court cannot function as second appellate Court in re-appreciating the evidence. However, if the evidence is misread, then this Court can definitely look into it. Having gone through the testimonies of both the witnesses, the complainant Page 6 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined categorically states that the present applicant had come to the scene of offence. However, he had not inflicted any blow on the complainant i.e. Kasambhai. It has been categorically stated in the deposition and also in the cross-examination that accused Anil Chandulal Thacker had given him a blow by base-ball bat and other accused Premji Manji Suthar had injured Saakirbhai. It was stated by complainant Kasambhai that present accused had only stood there and probably caught hold of Saakirbhai. No other role was attributed to the present applicant. If deposition of Saakirbhai is perused carefully, it has been stated that the present applicant Ramsinh Kalyanji Bihari had come to the scene of offence and inflicted a blow with an iron pipe to complainant Kasambhai and, therefore, injured Premjibhai attribute the role of present applicant to injured complainant Kasambhai, which in turn complainant Kasambhai in his testimony has completely refused.
9. Therefore, simultaneous reading of both the testimonies of complainant Kasambhai and injured Page 7 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined Saakirbhai reveals that the role of present applicant is only to the extent of being present at the scene of offence. As far as the role of inflicting the blow is concerned, complete contradictory statements have been given. As a matter of fact, the role attributed by Saakirbhai to the present applicant for injuring complainant Kasambhai is completely refused by the complainant himself. Therefore, joint reading of testimonies of both the witnesses simultaneously, completely absolves the present applicant from giving any blow to any of the injured. The only piece of evidence, therefore, would be the medical evidence wherein in the history name of present applicant is not given. There is no other evidence which is categorically stated by learned Additional Public Prosecutor. Therefore, role attributed to the present applicant can be maximum to the extent of being present at the scene of offence along with other accused. However, the learned trial Court has acquitted present applicant from offence under Section 114 of the Indian Penal Code, 1860. Against such acquittal, State has not Page 8 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined preferred any appeal, as stated by learned Additional Public Prosecutor. Therefore, this revision application is confined only to the charges against the present applicant qua for the offence under Section 325, 323 of the Indian Penal Code.
10. Looking to the discussion made hereinabove, and going through the testimonies of two eye-witnesses i.e. PW-1 Kasam Kherudin (complainant) and PW-2 Saakir Satuji, it can be observed that the learned trial Court as well as learned appellate Court has completely misread the deposition of two injured witnesses. Therefore, this case comes into a category whereby the learned trial Court as well as learned appellate Court has completely misread the evidence. It is true that revisional jurisdiction under Section 397 of the Code of Criminal Procedure is limited jurisdiction exercisable if the Court below has committed a manifest illegality. However, if the findings are perverse and based on misreading of evidence it results into miscarriage of justice, such issue can definitely come in the category of manifest illegality. It is Page 9 of 10 Uploaded by SAJ GEORGE(HC01069) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:38:29 IST 2025 NEUTRAL CITATION R/CR.RA/232/2017 CAV JUDGMENT DATED: 04/04/2025 undefined also true that the High Court cannot, while exercising the revisional power, undertake indepth and minutely re- examine entire evidence and upsets concurrent findings but when the proceedings are concluded based on misreading of evidence which results into manifest illegality then revisional powers can definitely be exercised.
11. In view of the same, present case being the one that is based on misreading of evidence, the judgment and order dated 4.12.2012 passed by the learned trial Court in Criminal Case No. 1406 of 2004 as well as the order dated 7.12.2016 passed by learned appellate Court in Criminal Appeal No. 01 of 2013, are quashed and set- aside to the extent of role of present revisionist applicant only. The present revisionist applicant is acquitted of charges under Sections 323 and 325 of the Indian Penal Code. Rule is made absolute to the aforesaid extent.
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