Gujarat High Court
State Of Gujarat vs Generelsing Rupsing Tank on 25 August, 2025
NEUTRAL CITATION
R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 958 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
GENERELSING RUPSING TANK
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Appearance:
MS KRINA CALLA, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 25/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE D. M. VYAS)
1. Challenge in this appeal is to the judgment dated 30/03/2013 in Sessions Case No.7 of 2012 on the file of the learned 6th (Adhoc) Additional Sessions Judge, Surat whereby the sole accused in the case was acquitted of the charges under Sections 395 and 397 of the Indian Penal Code. Page 1 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025
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2. Facts of the prosecution case germane to dispose of this appeal may briefly be stated as follows:
2.1. As per the version of the complainant, Snanabhai Patel, ASI, Buckle No.1759, Amroli Police Station, Surat City, he is serving as ASI in Amroli Police Station from 05.11.2008. On 26/03/2009 at 20:00 hours to 27/03/2009 at 8:00 hours, he was on patrolling with other police persons. During that time, at about 4:10 a.m., they came to Amroli Police Chowky for natures call and at that time one Kanubahi Derivala made a call on phone of Amroli Police Chowky and reported that one tempo-407 bearing registration no.GJ-16-T-6308 wherein some persons with weapons entered into the shop of Dwarkesh Jewelers by breaking shutter of the shop situated on the ground floor of Shreenath Apartment near Jasmin Park, Kosad road. That after receiving message, immediately they rushed to the above place with police staff and saw the tempo was parked in front of the shop and they have stopped the jeep and alighted from the jeep and saw five persons coming with boxes of ornaments in their hands from Dwarkesh Page 2 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined Jewelers towards the tempo. They tried to prevent them but those persons have pelted stones on them and thereby the stones hit at right writs of his hand and they ran away towards Mansarovar Circle. That they chased them and informed about the incident on wireless set in police control room. That they followed the tempo and other police staff also came and ultimately the tempo was cordoned near traffic police chowky of Surat Railway Station. That three persons were arrested and two persons fled away. That the arrested persons gave their names as well as names of the persons who fled away. That they brought arrested persons at Amroli Police Station and called the owner of the Dwarkesh Jewelers who had informed about the incident of loot of the ornaments.
That, therefore, a complaint is given before Amroli Police Station on 27/03/2009 which is registered as I-C.R. No.36 of 2009.
2.2. On the basis of the complaint, through investigation was carried out by the Investigating Officer. Necessary panchnama was prepared and statements of witnesses were recorded.
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3. After completion of the investigation, the police filed charge sheet against the accused for the aforesaid offences before the court of learned Judicial Magistrate First Class, Surat which came to be registered as Criminal Case No.1289 of 2011. However, as the case being exclusively sessions triable, the same was committed before the learned 6th (Adhoc) Additional Sessions Judge, Surat as per Section 209 of the Code of Criminal Procedure where the case was registered as Sessions Case No.7 of 2012.
4. The trial court framed charges against the accused for the offences punishable under Sections 395 and 397 of the Indian Penal Code. The accused denied the said charges and claimed to be tried.
5. During the course of the trial, the prosecution has examined PW-1 to PW-12 witnesses and got marked 16 exhibits to prove its case against the accused.
6. At the end of the trial, after considering the oral and Page 4 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined documentary evidence on record, the trial court acquitted the accused of the said charges as it did not find him guilty for the aforesaid offences. Aggrieved by the impugned judgment, the State has preferred the present appeal.
7. Assailing the impugned judgment and order of the acquittal, Ms.Krina Calla, learned APP for the State has submitted that the learned trial court has failed to appreciate the oral as well as documentary evidence in true perspective which are in support of the prosecution case. She has further submitted that the prosecution is able to prove the charges leveled against the respondent-accused. She has submitted that the learned trial court ought to have considered the oral as well as documentary evidences of the prosecution in true perspective but has failed to appreciate the same and recorded the findings which are contrary to the provisions of law. Learned APP has further submitted that the trial court has failed to appreciate the prosecution evidences and impugned judgment is not just, legal and proper and required to be interfered by this Court and lastly prayed to allow this appeal and set aside the impugned judgment passed by the Page 5 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined learned trial court.
8. Before dealing with the contentions of learned APP, it would be appropriate to analyze the relevant ocular and documentary evidences of the prosecution witnesses.
9. Prosecution has examined material witness PW-2, Kanubhai Chhaganbhai Patel vide Exh.23. During the chief examination, he has stated the facts that the alleged incident occurred in the year 2009. It is stated that he got up in early morning at about 3:00 a.m. to 4:00 a.m. and saw from the window that the shutter of Krishna Jewelers was broken. It is further stated that he has called the police and the police came and arrested the persons, those persons seems as of Shikh community. It is further stated that the accused came with the tempo and laid looted material in the tempo and ran away. It is further stated that the TI parade arranged by the Mamlatdar further stated that he is unable to identify the accused before the court.
9.1. During the cross examination, he has admitted the facts Page 6 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined that he has not seen the accused as the accused were run away. The prosecution has produced the important documents of panchnama of TI parade vide Exh.26. The panchnama was drawn on 03/03/2011. Considering this fact the incident was occurred in the year 2009 and thereafter, after a long period, TI parade arranged. This fact is required to be considered as the same not inspired the confidence about the identification of the respondent-accused.
10. It appears from the material available on record that there is no discovery or recovery from the respondent accused. The alleged offence occurred on 27/03/2009 and present resondent-accused was arrested on 02/03/2011.
11. Considering the ocular evidence of the police witness, it clearly reveals that three arrested accused have given the names of other two accused persons wherein there is no name of the present accused.
12. Therefore, considering the evidence on record and the facts and circumstances of the case and subsequent events Page 7 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined and on appreciation of the same, the trial court has rightly recorded a finding that the accused is not found guilty for the said charges levelled against him and accordingly acquitted him. After considering the said evidence on record, we are also of the considered view that no case of Section 395 and 397 is made out from the facts and circumstances of the case. Hence, impugned judgment warrants no interference of this Court in this appeal.
13. 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 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 Page 8 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined 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."
13.1. 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 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 Page 9 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined 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."
13.2. 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.
13.3. 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 Page 10 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025 NEUTRAL CITATION R/CR.A/958/2013 JUDGMENT DATED: 25/08/2025 undefined 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."
13.4. 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 exercise against an order of acquittal, are well settled. 13.5. 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 reasoning, 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:
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14. 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 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.
15. The present appeal of the State is accordingly dismissed. Bail bond, if any, shall stand cancelled. Page 12 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025
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16. Record and proceedings be sent back forthwith to the concerned court.
(CHEEKATI MANAVENDRANATH ROY, J) (D. M. VYAS, J) ILA Page 13 of 13 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Aug 25 2025 Downloaded on : Mon Aug 25 23:53:48 IST 2025