State Of Gujarat vs Gaganbhai Naginbhai Batungi

Gujarat High Court

State Of Gujarat vs Gaganbhai Naginbhai Batungi on 2 August, 2025

Author: A.S. Supehia

Bench: A.S. Supehia

                                                                                                                NEUTRAL CITATION




                          R/CR.A/1340/2004                                      JUDGMENT DATED: 02/08/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/CRIMINAL APPEAL NO. 1340 of 2004

                     FOR APPROVAL AND SIGNATURE:

                     HONOURABLE MR. JUSTICE A.S. SUPEHIA                                           Sd/-
                     and
                     HONOURABLE MR.JUSTICE D. M. VYAS       Sd/-
                     =============================================
                                  Approved for Reporting                       Yes          No
                                                                                           ✔
                     =============================================
                                                 STATE OF GUJARAT
                                                       Versus
                                         GAGANBHAI NAGINBHAI BATUNGI & ORS.
                     =============================================
                     Appearance:
                     MS MAITHELI MEHTA, APP for the Appellant(s) No. 1
                     =============================================
                        CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                              and
                              HONOURABLE MR.JUSTICE D. M. VYAS

                                        Date : 02/08/2025
                                         ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present appeal, filed under Section 378(1)(3) of the Criminal Procedure Code, 1973, is directed against the judgment and order of acquittal dated 27.05.2004, passed by the learned Sessions Judge, Amreli in Sessions Case No.24 of 2004, whereby the accused were acquitted of the offence punishable under Section 380 of the Indian Penal Code, 1860 ("IPC").

2. As per the prosecution case, the charge framed at Exh.3 alleges that the accused committed theft/robbery in the shop of the complainant on 13.01.2004, at around 9:30 a.m., at the time when the complainant had just opened his shop.

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3. The accused No.2 - Prakashbhai Lalabhai Gagdekar was apprehended by Police Constable - Suresh Balvantrai Vare (PW-02), whose deposition is recorded at Exh.19, while attempting to steal silver ornaments. Based on the evidence, the learned trial Court convicted accused No.2 under Section 380 of the IPC, and sentenced him to rigorous imprisonment for a period of six months, whereas the remaining co-accused were acquitted.

4. The present appeal has been filed by the State, challenging the acquittal of four accused, namely: (1) Gaganbhai Naginbhai Batungi, (2) Rajubhai Chariabhai Chhara, (3) Viravarbhai Joravarbhai Chhara, and (4) Bhaveshbhai Bharatbhai Soni.

5. Learned APP Ms.Mehta, appearing for the appellant- State, has submitted that the acquittal recorded by the learned trial Court is erroneous and unsustainable, considering the evidence adduced by the prosecution. It is contended by her that the prosecution had produced sufficient and credible material on record to establish the involvement of the acquitted accused, and therefore, the judgment of acquittal warrants interference.

6. We have carefully examined the entire evidence on record. The accused No.2 - Prakashbhai was convicted based on the complaint of Ashwinbhai Chimanbhai (Exh.18), which specifically stated that he was caught red-handed while attempting to steal a box containing silver ornaments. The conviction was supported by the evidence of reliable witnesses Page 2 of 7 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:02 IST 2025 NEUTRAL CITATION R/CR.A/1340/2004 JUDGMENT DATED: 02/08/2025 undefined PW-1, PW-2, and PW-3. However, with regard to the other accused (accused Nos.1, 3, 4, and 5), the trial Court found that the investigating officer failed to collect crucial and corroborative evidence to connect them with the offence.

7. Upon thorough assessment of the record, the trial Court held that the prosecution did not discharge its burden of proving the case beyond reasonable doubt against the acquitted accused, and accordingly, acquitted them. The relevant portion of the trial Court's findings reads thus:

"14. A close scrutiny and judicious evaluation of the evidence of P.W.1, 2 & 3 on one hand reveals that the prosecution has no iota of evidence suggesting the accused Nos.1, 3, 4 & 5 on other hand the presence of the accused No.2 in the shop of the complainant along with the box of ornaments is found to be proved beyond reasonable doubt. A close scrutiny of the evidence further reveals that the prosecution has not been able to satisfy the ingredients of Sec.394 or 395 of the I.P.C. as the present of five or more then five persons have not been established. There is no evidence on record by which it can be said that any injury or hurt has been caused by the accused persons. However, the act, commission, omission and overt act on the part of the accused No.2 reveals that he has entered to the shop of the complainant and has removed the box of ornaments without the permission and consent of the complainant. 1t may be mentioned here that the complainant and the P.W.2 has no personal biases against the accused persons for deposing a false story therefore, the evidence of P.W. 1 & 2 are found to be worth credence, acceptable and trustworthy so far as the presence of the accused No.2 in the shop of the complainant is concerned. The accused No.2 has unauthorisedly commit tress pass into the shop of the complainant with intent to commit crime and he has been caught hold while removing the box of ornaments and therefore, in humble opinion of this Court ingredients of Sec. 451 & 380 can be said to have been satisfied by the acts, commission and omission of the accused persons besides the evidence adduced and produced by the prosecution during the course of trial.

For the foregoing reasons this Court is of the opinion that the so far as the accused Nos.1, 3, 4 & 5 are concerned, they are entitled to have benefit of doubt whereas the case of prosecution is found to be consistent and proved so far as the accused No.2 is concerned for the offences punishable under Sec. 451 & 380 of the I.P.C. and hence, the following order:

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1) The accused Nos. 1, 3, 4 & 5 are exonerated and acquitted from the charges levelled against them vide charge Ex.3.

2) The accused No.2 Prakashbhai Lalabhai Gagdekar is hereby held guilty for the offences punishable under Sec. 451 & 380 of the I.P.C.

3) The accused shall be heard on the point of sentence ."

8. We have also examined the deposition of PW-1, recorded at Exh.17. Upon an overall appreciation of the evidence, we find no material linking the present respondents with the original accused. Similarly, the evidence of PW-2 - Police Constable Suresh Balvantrai Vare, examined at Exh.19, also fails to establish any connection between the present respondent and the convicted accused - Suresh Balvantrai Vare.

9. The Investigating Officer (PW-3) - Amrutbhai Mohanbhai Desai, examined at Exh.21, has also not brought on record any cogent evidence to demonstrate a nexus between the present respondent and the commission of the offence. The evidence, when considered in its entirety, does not reveal any link between the present respondents with the original accused, who was caught red-handed while stealing the silver ornaments.

10. Further, while considering the scope of power of the Appellate Court in an appeal against the order of acquittal, it would be apposite to refer to the decision of the Supreme Court in the case of Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, wherein the Supreme Court has summarized the principles, which read as under :- \ Page 4 of 7 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:02 IST 2025 NEUTRAL CITATION R/CR.A/1340/2004 JUDGMENT DATED: 02/08/2025 undefined "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 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 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 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."

11. Thus, it is a settled principles that while exercising the appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the trial Court. Similar principle has been laid down by the Supreme Court in the case of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 AIR SCW 5553 and in the case of Girja Prasad (Dead) by LRs Vs. State of MP, 2007 AIR SCW 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

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12. It is also a settled legal position that in acquittal appeal, the Appellate Court is not required to rewrite 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, AIR 1981 SC 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."

13. 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. We have gone through the judgment and order passed by the trial Court. We have also perused the oral as well as documentary evidence led by the trial Court and also considered the submissions made by learned APP for the appellant-State. The trial Court, while considering the oral as well as documentary evidence, has clearly observed that the complainant has miserably failed to prove the case beyond reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

14. Accordingly, we are not inclined to disturb the acquittal after appreciation of the evidence. Further, we do not find that Page 6 of 7 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:02 IST 2025 NEUTRAL CITATION R/CR.A/1340/2004 JUDGMENT DATED: 02/08/2025 undefined the impugned judgment and order passed by the trial Court recording the acquittal of the accused suffers from any perversity, which would compel us to reverse it.

15. Resultantly, the appeal fails and is hereby dismissed. Record and proceedings be transmitted back to the trial Court forthwith.

Sd/-

(A. S. SUPEHIA, J) Sd/-

(D. M. VYAS, J) MAHESH/26 Page 7 of 7 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:04:02 IST 2025