Gujarat High Court
State Of Gujarat vs Kalabhai Kodarbhai Vankar on 2 August, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1479 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KALABHAI KODARBHAI VANKAR & ORS.
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Appearance:
MS MAITHILI MEHTA, APP for the Appellant(s) No. 1
MR JV JAPEE(358) for the Opponent(s)/Respondent(s) No. 1,2,3,5,6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE D. M. VYAS)
1. Assailing the judgment dated 20/05/2004 of the learned Additional Sessions Judge, First Track Court No.4, Sabarkantha-Himmatnagar passed in Sessions Case No. 105 of 2003 on the file of the said court whereby respondent nos.1 to 8 who are accused nos.1 to 8 in the said case (hereinafter referred to as A-1 to A-8) were acquitted for the charges Page 1 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined levelled against them, the instant appeal has been preferred by the State.
2. Facts of the prosecution case, in brief, are as follows:
2.1. On 03/03/2002, there was a meeting of Peace Committee in the office of Sub-Divisional Magistrate of Himmatnagar and it was informed by Mahmmedyusuf Haji Abdulrasulbhai Mutvalli of Himmatnagar that he has received phone call from his watchman Nanuram Fanat that his factory is set on fire and mob is looting factory premises. On receipt of such information, ASI Dalpatsinh Gobarsinh and other police officers went to the scene of offence and noticed that mob of approximately 200 persons were rioting and looting the factory premises. The mob was directed to disperse but still it did not, therefore, one round was fired from service revolver and thereafter mob was dispersed and from that mob, accused no.1 and accused no2 were caught. Thereafter, complaint was filed against the aforesaid two accused as well as about 200 persons for the offences punishable under Sections 395, 436, 147, 149 of the Indian Penal Code and Section 135 of the Bombay Police Act.Page 2 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025
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3. After completion of the investigation, the police has filed charge-sheet against the accused for the aforesaid offences and the case was committed to the concerned Judicial Magistrate First Class, Himmatnagar.
4. As the case was exclusively triable by the sessions division, the case was committed to the Sessions Court, Sabarkantha and thereafter it was transferred to the court of learned Additional Sessions Judge, First Track Court No.4, Sabarkantha-Himmatnagar. The trial court has framed charges for the offences punishable under Sections 395, 436, 147, 149 of the Indian Penal Code and Section 135 of the Bombay Police Act against the accused. The accused denied commission of any such offences and claimed to be tried.
5. During the course of the trial, the prosecution got examined PW-1 to PW-6 witnesses and got marked five exhibits to substantiate its case against the accused.
6. At the culmination of the trial, after considering the both oral and documentary evidence on record, as the accused Page 3 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined found not guilty for any of the aforesaid charges levelled again them, acquitted the accused for the aforesaid charges by impugned judgment.
7. Aggrieved thereby, the State has preferred the present appeal against the said judgment of acquittal.
8. We have heard learned Additional Public Prosecutor Ms.Maithili Mehta at length for the State and also perused the record and proceedings and considered the evidence on record.
9. Learned APP for the appellant-State submitted that the learned Sessions Judge has committed grave error in appreciating the facts of the case as well as the provisions of law while acquitting the accused persons. Learned APP further submitted that the learned Sessions Judge has erred in appreciating the prosecution witnesses. Learned APP has further submitted that the judgment and order of acquittal is contrary to law and evidence on record and therefore deserves to be quashed and set aside and lastly prayed to allow this appeal.
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10. Before dealing with the rival contentions of the parties, it would be appropriate to analyze the relevant ocular and documentary evidences of the prosecution witnesses.
11. The prosecution has examined star witness PW-1 Manuram Dhulaji Fanat vide Exh.25. As per the prosecution case PW-1 Manuram Dhulaji Fanat is eye witness of the alleged incident. He has stated the facts that he was watchman in Sabar Agro Industries, GIDC, Motipura. On 03/03/2002, he was in the factory and in the evening there came the mob of people with the weapons and set the fire in the factory and caused damages of about 35/- lakhs to Rs.40/- lakhs. He has further stated that he informed about the same to the owner of the factory. He has not seen who set the fire. The prosecution witness has not supported the prosecution case and thereafter cross examined by the learned APP. During the cross examination also he has not supported the prosecution case. Defense side cross examined the important witness and during the cross examination he has admitted the fact that he does not know who caused the damage and set the fire in the factory. Considering the ocular evidence of the Page 5 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined material witness, it appears that he has not supported the prosecution case and turned hostile.
12. The prosecution has examined PW-5, Mahmmedyusuf Haji Abdulrasulbhai Mutvalli vide Exh.31. He is the owner of the factory. He has supported the case of the prosecution. It is stated by him that at the time of the incident, he is in the house and he informed on telephone Deputy Superintendent of Police, Collector and Mamlatdar. It is further stated by him that the watchman Nanuram talked with him on telephone and stated the facts of the incident. Considering the ocular evidence of the said witness, it appears that he is not eye witness of the incident.
13. The prosecution has examined PW-6, the Investigation Officer-Himmatsinh Parbatsinh Chavda vide Exh,.32. He has stated the facts of the incident. He has further stated that he has given the complaint against the mob and registered the offences and also produced the complaint vide Exh.33. He has further stated the facts of the firing from his service revolver. He has further stated the facts of the investigation and the charge-sheet filed against the accused. During the Page 6 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined cross examination, he has admitted the fact that there was no TI parade conducted for identification of the accused. He has also admitted the fact that there was no recovery or discovery during the investigation.
14. Considering the facts and circumstances of the prosecution case and re-appreciating the ocular as well as documentary evidence, the prosecution has miserably failed to establish the alleged role of A-1 to A-8. There was no TI parade of the accused. No recovery or discovery of any muddamal during the investigation from the accused. There is no direct or corroborative evidence to connect the accused in the alleged offence.
15. The learned trial court deeply appreciated the prosecution evidence and recorded the findings of the acquittal which is just and proper and not required to be interfered in this appeal.
16. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by Page 7 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In Paragraph-54 of the said decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
16.1. Further, in the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the Apex Court has laid down the following principle;
"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, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no Page 8 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined 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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
16.2. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
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NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined 16.3. In the case of State of Goa V. Sanjay Thakran & Anr., (2007) 3 S.C.C. 75, the Apex Court reiterated the powers of the High Court in such cases. In Paragraph-16 of the said decision, the Court observed as under;
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
16.4. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may Page 10 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined exercise against an order of acquittal, are well settled. 16.5. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy reported in AIR 1981 S.C. 1417, wherein, it is held as under:
"... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
16.6. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary.
17. Considering the impugned judgment and order of the learned trial Court and the aforesaid reasoning and bearing in mind the statutory provisions, as well as the judgments of the Page 11 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025 NEUTRAL CITATION R/CR.A/1479/2004 JUDGMENT DATED: 02/08/2025 undefined Hon'ble Apex Court, this Court is of the considered opinion that the present appeal does not warrant any interference in the impugned judgment and order passed by the learned trial Court. We find that the findings recorded by the learned trial Court are absolutely just and proper and in recording the said findings, no illegality and infirmity has been committed by it. We are therefore, in complete agreement with the findings and ultimate conclusion recorded by the learned trial Court and there is no reasons to interfere with the same.
18. The present appeal of the State is accordingly dismissed. Bail bond, if any, shall stand cancelled.
19. Record and proceedings be sent back forthwith to the concerned court.
(A. S. SUPEHIA, J) (D. M. VYAS, J) ILA/28 Page 12 of 12 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:15 IST 2025