Gujarat High Court
State Of Gujarat vs Kiritbhai Zavrabhai Kishori on 2 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1993 of 2004
With
R/CRIMINAL APPEAL NO. 1995 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
KIRITBHAI ZAVRABHAI KISHORI & ORS.
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Appearance:
MR NIRAJ SHARMA, APP for the Appellant(s) No. 1
MR RISHIN R. PATEL for HL PATEL ADVOCATES(2034) for the
Opponent(s)/Respondent(s) No. 1,2,3
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 4
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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 MR.JUSTICE P. M. RAVAL)
1. It is reported that Respondent No.4 in Criminal Appeal No.1993 of 2004 has expired hence, appeal qua him stands abated.
2. The State has preferred this appeal under the Page 1 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined provisions of Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the Judgment and order of Acquittal passed by the learned Additional Sessions Judge (Fast Track Court No.5), Godhra in Sessions Case No. 372 of 2003 and Sessions Case No. 52 of 2004 whereby vide Judgment and Order dated 09.08.2004, the learned trial Judge acquitted the present respondents in both these appeals for the alleged offences punishable under Sections 147, 148, 149, 332, 336, 337, 435, 436, 427 and 395 of the Indian Penal Code.
3. Brief facts shorn of unnecessary details as it reveals from the documents are that on 27.02.2002 when the Kar-Sevaks were returning from Ayodhya, they were intercepted from Godhra Railway Station by some miscreants and many Kar-Sevaks were burnt alive while they had boarded Sabarmati Express, when it reached near Godhra Railway Station. On the next day of the said carnage, an appeal was made by V.H.P. to observe 'Bandh' in the entire State of Gujarat, pursuant to which police personals were deployed by Fatepura Police Station to look after the situation of law and order. It was reported to Fatepura Police Station that the situation in Page 2 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined Sukhsar village was tensed and after receiving such telephonic message, police force rushed with the help of the executive Magistrate at about 17.30 hours, when it was found that a crowd of almost 200 to 300 persons which arrived from Motanatva village was on rampage and had torched one tractor and houses of Kalu Satar and Rajak Gani along with some shops. The mob was also pelting stones and in order to take control of the situation, Assistant Sub Inspector Javsing ordered to open fire pursuant to which the State Railway Police Personals opened fire to disburse the mob and after such firing the mob was disbursed however at about 18:30 hours, one Javrabhai, a B.J.P. worker, came to Sukhsar Outpost along with three persons in a rickshaw who had sustained injury and was informed that because of the firing of the police personals, these three persons were injured despite of the fact that they were not involved in rioting. These three persons were Ravjibhai Jaliyabhai, Vikrambhai Tejabhai and Kamjibhai Premabhai. It transpires from the record that again a message was received by the police that the mob had gone on rioting and therefore the police again rushed to the spot and at that time, accused Kiritbhai Zavrabhai was also involved Page 3 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined in throwing stones along with the mob. A stone hit A.S.I. Javsingbhai and was hence required to be taken to the hospital for treatment. Since the situation was deteriorating, tear gas cells were lobbed and the Head Constable Jivarambhai also ordered firing. Thereafter again after sunset, the mob attacked the property of Rameshbhai Nathabhai and Sunilbhai Devdhabhai. Again the police had to restore to lobbing of the tear gas cells and thereafter followed by firing. It is also the case of the prosecution that public property to the tune of Rs. 4,00,000/- came to be destroyed and a complaint came to be registered by P.S.I., Mr. K. R. Parmar in respect to the alleged offences as stated herein above. After thorough investigation, at the first instance, charge-sheet came to be submitted against four persons on 18.09.2003 whereas supplementary charge-sheet against the rest of the two accused came to be submitted on 28.01.2004.
4. It appears from the record that after submitting the charge-sheet before the territorial Magistrate, the same came to be registered as Criminal Case No. 750 of 2003 and Criminal Case No.110 of 2004. The learned Magistrate having found both the cases as Sessions Page 4 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined Triable committed before the same Trial Court which came to be numbered as Sessions Case No.372 of 2003 and Sessions Case No.52 of 2004.
5. Vide Exh.-5, charges were framed against the accused in Sessions Case No. 372 of 2003 and plea came to be recorded vide Exh.-6 wherein the accused denied the allegations and prayed for trial whereas in Sessions Case No. 52 of 2004 charges were framed against the accused vide Exh.-2. Since both the cases arise from the same incident and FIR, they came to be tried together.
6. Prosecution to bring home the charges examined six police witnesses including the complainant and relied upon one documentary evidence namely panchnama of scene of offence. After recording of evidence, statement under section 313 of Cr.P.C. came to be recorded and after hearing both the learned advocates for the respective parties, passed the impugned judgment acquitting the accused. Hence, the present appeal.
7. Learned APP, Mr. Niraj Sharma for the State in both these appeals has taken this Court through the oral Page 5 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined as well as documentary evidence on record and has argued that the trial Court has committed serious error in not believing the case of the prosecution, more particularly, when the present accused persons have been identified before the Court who were hurling stones and were present on the day of the alleged incident in the crowd and there are no reasons to disbelieve the police witnesses and has thus argued to allow the present appeal.
8. Mr. Rishin Patel, learned advocate has vehemently objected to the present appeal and has argued that the judgment and order of acquittal passed by the learned Sessions Judge is justified, more particularly, when there is no evidence on record to link the present accused with the alleged offence, more particularly, when prosecution has failed to prove its case beyond reasonable doubt. It is further argued that despite of the three accused who were present at the outpost were also not arrested. It is further argued that though the witnesses were readily available, the statement were taken after a considerable period of time which creates serious doubt in the case of the prosecution and has argued that the accused has Page 6 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined been wrongly robbed in the present crime to justify the firing by the police on the date of the alleged incident and has thus argued to reject the present appeal.
9. Heard learned APP, Mr. Niraj Sharma for the State and learned advocate Mr. Rishin Patel for the respondents. Also perused the documentary as well as oral evidence on record. We also had given our considered thought over the impugned judgment.
10. It is required to be noted that in the complaint at Exh.-21 dated 28.02.2002, name of three accused have been given. However, it is also required to be noted as to how the names of this three accused came to be known by the concerned complainant is not coming on record. More particularly, in view of the fact that it is not coming on record that the accused were known to the complainant.
11. It is an admitted fact that there is no test identification parade carried out in the present case read with the complaint at Exh.-21, three accused have been named in such FIR. Under such circumstances, when the Page 7 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined accused have been identified for the first time before the Court, it creates a serious doubt with regards to the involvement of the present accused in the alleged crime. It also transpires from the record that Ravjibhai Jaliyabhai, Vikrambhai Tejabhai and Kamjibhai Premabhai, the three accused persons were brought at the Sukhsar outpost by one Javrabhai, a B.J.P. worker which has been clearly admitted by the witnesses also to the effect that it were informed that these three persons not involved in the rioting were injured in the police firing. Despite these facts, none of the accused were arrested for a considerable period of time which has also been noted by the learned Sessions Judge while acquitting the accused. It is also required to be noted that from the FIR itself it is clear that the incident has taken place in three parts, however, none of the witnesses who have deposed before the Court have indicated clearly as to what role was played by which accused at which place of incidence and under such circumstances, when two views are possible, the view which favours the accused, ought to have been adopted, which has been correctly adopted by the learned Sessions Judge and under such circumstances, we are not inclined Page 8 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined to disturb the said findings in the acquittal appeal.
12. In the case of Constable 907 Surendra Singh & Anr. v. State of Uttarakhand reported in [2025]2 S.C.R. 239 : 2025 INSC 114 it is held that:
"40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581:
(2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC as follows : (SCC p. 584, para 8) "8. ... 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 reappreciating 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 9 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 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."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading /omission to consider material evidence on record;
and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on Page 10 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025 NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined record."
We find no perversity nor there is misreading or omission to consider material evidence on record coupled with the fact that when two views are possible the view in favour of the accused should be adopted and hence when in the present case as noted herein above when two views are possible we are not inclined to entertain this appeal. It is also a settled legal position that in acquittal appeals, 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 Choudhary (1967) 1 SCR 93 (AIR 1967 SC 1124) that it is not the duty of the Appellate 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."
Under the circumstances we are in agreement with the reasons given by the Trial Court.
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NEUTRAL CITATION R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025 undefined
13. Hence, the present appeal stands rejected. The judgment and order passed by the learned Sessions Judge in Sessions Case No. 372 of 2003 and Sessions Case No.52 of 2004 vide judgment and order dated 09.08.2004 stands confirmed. Record and Proceedings to be sent back to the concerned trial Court. Bail bonds of the accused stands canceled.
(GITA GOPI,J) (P. M. RAVAL, J) MAYA Page 12 of 12 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:34:30 IST 2025