Gujarat High Court
State Of Gujarat vs Sobatbhai Khimabhai on 2 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1981 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
SOBATBHAI KHIMABHAI
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Appearance:
MR ROHAN RAVAL APP for the Appellant(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The present appeal filed by the State under Section 378(1)(3) of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') challenges the judgment and order of acquittal dated 30.09.2004 passed by the learned Additional Sessions Judge, Page 1 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined 2nd Fast Track Court, Dhrangadhra in Sessions Case No.31 of 1999.
2. The facts of the case, as has been referred, briefly can be stated that on 14.04.1999, a complaint was registered before Haldvad Police Station for the offence under Sections 395, 397, 452 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) as well as Section 135 of Bombay Police Act (for short, 'B.P. Act') vide C.R. No.51/99, stating the fact that some accused persons have assaulted the staff members of petrol pump with deadly weapons and thereby, committed robbery of cash of Rs.12,806/- of patrol pump, situated on Highway at about 11.00 p.m.
3. Learned APP Mr. Rohan Raval, has referred to the charge framed by the Trial Court against ten of the accused, stating that on the referred time and place, the accused had joined together and Page 2 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined committed dacoity and robbery with sticks as deadly weapons, had caused grievous hurt to three of the persons. APP Mr. Raval further stated that there was breach of notification under Section 135 of the B.P. Act.
3.1 Learned APP Mr. Raval has stressed upon the evidence of witnesses stating that the complainant had identified the accused. The panch also has supported the place of incident. Mr. Raval stated that witness (PW3) was present at the petrol pump and has stated that the complainant has identified the accused. The Chowkidar-Maganbhai (PW4) has supported the prosecution case, stating about the robbery, and further stated about the evidence of owner of the petrol pump (PW5). Mr. Raval stated that though, the owner was not present there, but after hearing about the incident, had come with loaded pistol and had seen the last man running away from the place. Mr. Raval stated that, arrest Page 3 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined panchnama of Shobatsinh Khimabhai Bariya (Exh.24) verifies the fact of incident, which had taken place.
3.2 Learned APP further stated that P.W.8 - Rameshbhai Raval being police constable had identified the accused. He had given the deposition with specific identification of the accused being found in the morning at about 10.00, as 'Chaddi-Banyandhari' and 'Lungiwala' near Kalpana Hotel and when they were asked to stop, they ran away, and there was firing in the air, and during that period, Sobatsinh Khimabhai Bariya was arrested.
3.3 Learned APP Mr. Raval further stated that Satish Chhotubhai Patel (PW9), the Executive Magistrate, has given the deposition of the procedure undertaken by him for identification and with supporting evidence of the Executive Magistrate, the deposition proved that the Page 4 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined accused were identified.
3.4 Learned APP has placed reliance on the injured victim - Bharatbhai, who could identify the person, who had given him blow. Mr. Raval thus, stated that the fracture injury sustained by Bharatbhai could be proved by medical evidence. Mr. Raval further placed reliance on the deposition of PW13 - Takhatsinh Thakor, who has given the evidence regarding the panchnama and the fact of recording of statements of the witnesses.
3.5 Learned APP Mr. Raval further submitted that PW14 - Doctor Rampyare Prasad Verma had medically examined the injured and the evidence of the doctor corroborates the fact that three of the persons had sustained injury during the incident.
4. Perusal of judgment of the learned Trial Court Judge, shows that the learned Judge has Page 5 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined appreciated the incident of 14.04.1999 on 11.00 at night on Haldvad Highway Road at Gokulesh Petrol Pump. The employees were present at the petrol pump and there was loot of cash of Rs.12,806/-. The learned Judge has observed that the complaint was registered at Haldvad Police Station as I-C.R. No.51/99. Thereafter, the investigation was undertaken and panchnama was drawn recording the statements of the witnesses. 4.1 The accused - Shobatsinh Khimabhai was arrested on 15.04.1999 between 10.30 to 11.00 by Dhrangadhra Police under Section 41(1) of the Cr.P.C. and the Investigating Officer thereafter, took the evidence of F.S.L. Officer, who had visited the place and also the Mamlatdar of Halvad. The learned Judge on appreciation of the evidence noted that on the next day of the incident at Highway by-pass, near Dhrangadhra at Kalpana Hotel, the police had found five of the accused running away from the place and on Page 6 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined physical examination of the accused only Rs.360/- cash was found. One of the accused was arrested, while rest of the four had run away from the place.
4.2 Before Mamlatdar Halvad, the identification was carried out and two of the witnesses i.e. complainant-Jaysinhbhai and injured-Bhartbhai were present before the Mamlatdar. The depositions of three of the witnesses do not bring consistency for identification of the accused. Only one of the accused, who was stated to be found in front of group, was stated to be identified. Otherwise, witnesses Maganbhai and Bharatbhai could not identify the accused. Therefore, the learned Judge did not find it safe to rely on the depositions of the witnesses, who could not identify the accused observing, that the statement could have no value, when there were presence of fifteen to twenty persons at that time.
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NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined 4.3 The learned Judge observed that the complainant Jaysinhbhai though had identified, however, in the complaint at Exh.18, he had not stated of having seen the persons, who had come for robbery. Thus, the learned Judge did not find the corroboration from the complaint and found it that the statement was coming for the first time in the Court and hence, in absence of the corroboration did not find it fit to rely on the identification parade.
4.4 The learned Judge also observed that the injured witness Bharatbhai too could not identify the accused. Even during the identification parade and relying upon the statement of police Rameshbhai, who has deposed that on 15.04.1999 in the morning he received a telephone message about 'Chaddi-Baniyandhari' at the Kapana Hotel and thereafter, the accused came to be arrested after a period of about twelve hours, the learned Page 8 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined judge did not find it safe to rely on that evidence, observing that when the important witnesses could not identify the accused then, only evidence of arresting the accused, would bear no significance to join the accused with the offence. The learned Judge, thus, did not find any cause to rely on the evidence of any of the witnesses and observed that the prosecution has failed to prove the case beyond reasonable doubt.
5. The judgment of Chandrappa v. State of Karnataka (2007) 4 SCC 415, would be relevant to be mentioned since the judgment lays down the general principles for the consideration of the acquittal appeals. The Hon'ble Supreme Court has held thus:
"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.Page 9 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025
NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined (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. (5) If two reasonable conclusions are possible on the basis of the evidence on record and one favourable to the accused has been taken by the Page 10 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined trial court, it ought not to be disturbed by the appellate court.
5.1 In the case of H.D. Sundara v. State of Karnataka, [(2023) 9 SCC 581], the Hon'ble Supreme Court has held as under:
"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment [State of Karnataka v. H.K. Mariyappa, 2010 SCC OnLine Kar 5591] rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short "CrPC"). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarised 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 re-
appreciating 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 Page 11 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined 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 finding 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."
6. We, on perusal of the deposition as well as the charge and the observation of the learned Trial Court Judge, are of the consistent view that the conclusion reached by the learned Judge on appreciation of evidence is reliable and there is nothing to consider as being patently illegal or that the conclusion arrived at is on the basis of any untenable evidence.
7. We do not find merits in the appeal, hence, the present appeal stands dismissed. The impugned judgment and order of acquittal dated 30.09.2004 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Dhrangadhra in Sessions Case Page 12 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025 NEUTRAL CITATION R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025 undefined No.31 of 1999 is hereby confirmed. Bail bond, if any, stands cancelled. Record & Proceedings be sent back to the concerned Trial Court forthwith.
(GITA GOPI,J) (P. M. RAVAL, J) Pankaj/4 Page 13 of 13 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Sat Aug 02 2025 Downloaded on : Sat Aug 02 21:18:03 IST 2025