Gujarat High Court
State Of Gujarat vs Vinesh @ Vinu Tejabhai Desai on 20 February, 2025
NEUTRAL CITATION
R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2064 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
VINESH @ VINU TEJABHAI DESAI & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
ADVOCATE NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 4
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 1,3,4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and the order dated 08.05.2009 in Sessions Case No.241 of 2007 passed by the learned Additional Sessions Judge, Court No.17, Ahmedabad (hereinafter referred to as 'the Trial Court'), whereby, the learned Page 1 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined Trial Court has acquitted the respondents - accused from the offences punishable under Sections 399 and 402 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Section 135(1) of the Bombay Police Act (hereinafter referred to as 'the B.P. Act'). The respondents are hereinafter referred to as 'the accused' as they stood in the rank and file in the original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are as under:
2.1. The complainant Bhikhaji Nathuji, ASI, Buckle No.8434, Ellis bridge Police Station, Ahmedabad City received secret information that the accused had made preparation for dacoity on a petrol pump and had sharp weapons and chili powder in their possession and hence, on 04.02.2007 at 15:45 hours a watch was arranged at Kalgi Cross Roads, near World Business House and the accused came on motorcycle No.GJ-01-FK-2225 and one another motorcycle without a number plate. The motorcycles were halted and the accused were caught red handed. The Page 2 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined complainant filed the complaint, which was registered at I-
C.R.No.75 of 2007 with Ellis Bridge under Sections 399 and 402 of the IPC and sections 135 of the B.P.Act.
2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions therefore, after completion of process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Sessions Case No.241 of 2007. 2.3. The accused were duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code and a charge was framed by the learned Trial Court at Exh.3 and the statements of the accused were recorded at Exhs. 4 to 7 respectively, wherein, the accused denied all the contents of the Page 3 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined charge and the entire evidence of the prosecution was taken on record. The prosecution has examined 4 witnesses and has produced 3 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.22, the further statement of the accused under Section 313 of the Code was recorded. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, has acquitted the accused for the offences punishable under Sections 399 and 402 of the IPC and Section 135(1) of the B.P. Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Court is contrary to law, evidence on record and principles of justice and is based on inferences not warranted by facts of the present case and also on presumption, not warranted by law. The learned Trial Court has Page 4 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined erred in seeking direct and indirect evidence produced in this case connecting the respondents with crime and inspite of the fact, the learned Trial Court, without appreciating the evidence produced by the prosecution, arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The learned Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The learned Trial Court has also committed an error in arriving at the conclusion that though the complainant and the prosecution witnesses have fully supported the case of the prosecution and there are no material contradictions, the Trial Court has acquitted the accused. The learned Trial Court has erred in appreciating the fact that even the panch witnesses have turned hostile and no supporting the prosecution case, in spite of that when the evidence of the complainant and other witnesses have support the prosecution case, then in that case, the learned Trial Court ought not to have discarded the evidence of the complainant and other witnesses, more particularly, when the same is reliable, trustworthy and inspires confidence of the Court. The learned Trial Court has erred Page 5 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined in appreciating the various authorities in favour of the respondents and thereby, has committed error in acquitting the respondents. The impugned judgment and order of acquittal passed by the Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
- State. Though served, the respondent No.2 has not appeared either in person or through an advocate. The respondent Nos.1, 3 and 4 are unserved though bailable warrant has been issued. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the Trial Page 6 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by Judge is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused.
6. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered Page 7 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) ........ From the above decisions, in our considered view, the following general principles regarding powers of 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 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 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.Page 8 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025
NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined (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. 6.1 The Apex Court in yet another recent decision in case of Sri Dattatraya Vs. Sharanappa arising out of Criminal Appeal No. 3257 of 2024 (@ SLP (Crl.) No. 13179 of 2023) observed as under:
31. The instant case pertains to challenge against concurrent findings of fact favouring the acquittal of the respondent, it would be cogent to delve into an analysis of the principles underlining the exercise of power to adjudicate a challenge against acquittal bolstered by concurrent findings. The following broad principles can be culled out after a comprehensive analysis of judicial pronouncements:
i) Criminal jurisprudence emphasises on the fundamental essence of liberty and presumption of innocence unless proven guilty. This presumption gets emboldened by virtue of concurrent findings of acquittal. Therefore, this court must be extracautious while dealing with a challenge against acquittal as the said presumption gets reinforced by virtue of a well-reasoned favourable outcome. Consequently, the onus on the prosecution side becomes more burdensome pursuant to the said double presumption.
ii) In case of concurrent findings of acquittal, this Court would ordinarily not interfere with such view considering the principle of liberty enshrined in Article 21 of the Constitution of India 1950, unless perversity is blatantly forthcoming and there are compelling reasons.
iii) Where two views are possible, then this Court would not ordinarily interfere and reverse the concurrent findings of acquittal. However, where the situation is such that the only conclusion which could be arrived at from a comprehensive appraisal of evidence, shows that Page 9 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined there has been a grave miscarriage of justice, then, notwithstanding such concurrent view, this Court would not restrict itself to adopt an oppugnant view. [Vide State of Uttar Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal are 'perverse' it is to be seen whether there has been failure of justice. This Court in Babu v. State of Kerala clarified the ambit of the term 'perversity' as "if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/admissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality."
v) In situations of concurrent findings favoring accused, interference is required where the trial court adopted an incorrect approach in framing of an issue of fact and the appellate court whilst affirming the view of the trial court, lacked in appreciating the evidence produced by the accused in rebutting a legal presumption. [Vide Rajesh Jain v. Ajay Singh]
vi) Furthermore, such interference is necessitated to safeguard interests of justice when the acquittal is based on some irrelevant grounds or fallacies in re-appreciation of any fundamental evidentiary material or a manifest error of law or in cases of non-adherence to the principles of natural justice or the decision is manifestly unjust or where an acquittal which is fundamentally based on an exaggerated adherence to the principle of granting benefit of doubt to the accused, is liable to be set aside. Say in cases where the court severed the connection between accused and criminality committed by him upon a cursory examination of evidences. [Vide State of Punjab v. Gurpreet Singh and Others and Rajesh Prasad v. State of Bihar.]
7. It is a settled principle of law that in an appeal against Page 10 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the learned Trial Court, it appears that there are some manifest illegality or perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the learned Trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Page 11 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined Court comes to conclusion that based on the evidence, the conviction is a must.
8. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Bhikhaji Nathuji Vaghela at Exh.13 and the witness is the complainant, who has stated that on 04.02.2007, he was in the surveillance squad and had received secret information that youngsters were going on pulsar motorcycles with preparation for dacoity and while they were at Kalgi Cross Roads, near World Business House, two motorcycles came, out of which, one motorcycle did not have any registration and the another motorcycle was with registration No.GJ-01-FK-2225. That the motorcycle was halted and the persons were checked and the accused were caught in the presence of the other police personnel and panch witnesses. The accused had knife and red chili powder of Ramdev Masala and their mobiles phones and motorcycles were seized. That the accused had made preparation to commit the dacoity and he had filed the complaint which is produced at Exh.15. During the cross-examination by the learned advocate for Page 12 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined the accused, the witness has stated that he did not make note of the secret information received at any place and in the secret information there was no description about any persons regarding their colour, height, weight etc. That he has information about the number of petrol pumps in their area and he did not alert the petrol pump owners after he had received the secret information. That he had gone from the Chadavad Police Chowki to the World Business House by a Santro Car but he has not mentioned the same in the complaint and he had not kept any videographer or photographer at the place of incident. That he had not taken the signatures of the panch witnesses on the currency notes and the muddamal knives and chili powder were not sent to the FSL. That he did not hear any conversation of the accused and while they were caught, the accused did not put up any resistance. 8.1. The prosecution has examined PW-2 Jayantibhai Babubhai Buval at Exh.18 and the witness was working as a head constable at the Ellis bridge Police Station on the date of incident. The witness has stated that he was present at the Chhadavad Police Chowki in the surveillance squad and at that time, Bhikhaji Page 13 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined Nathuji Vaghela, ASI, had received secret information at around 1:10pm about persons passing by Kalgi Cross Roads and they went and arrested the accused with two motorcycles, out of which, one was without a number plate and the another motorcycle had registration No.GJ-01-FK-2225. The accused were asked their names and addresses and the same was taken down and the complaint was filed by Bhikhaji Nathuji Vaghela, ASI. During the cross-examination by the learned advocate for the accused has stated that he had gone towards Ambawadi Circle to call the panch witnesses and he did not ask the panch witnesses as to whether they were the panch witnesses as any time earlier. That all the persons, who had gone in the raid, did not have any government weapon with them and the secret information that was received was not noted at any place. That when he brought the panch witnesses and came, the private vehicle was already at the place.
8.2. The prosecution has examined PW-3 Nizamkhan Najirkhan Pathan at Exh.20 and the witness is the panch witness regarding the procedure that was done by the complainant and Page 14 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined other police personnel. The witness has not supported the case of the prosecution and he has stated that on 04.02.2007, he was called by the police to the Ellis Bridge Police Station and asked to affix his signature and he had affixed his signature on the panchnama produced at Exh.17. The witness has been declared hostile and has been cross-examined by the learned APP, but nothing to support the case of the prosecution has come on record. 8.3. The prosecution has examined PW-4 Mohanbhai Savabhai Yadav at Exh.21 and the witness is the Investigating Officer, who has narrated in detail about the procedure undertaken by him during investigation. During the cross- examination by the learned advocate for the accused, the witness has stated that he had perused the documents given to him minutely and he had found a very serious offence and had taken a visit of the place of incident but, he had not made a note of the same at any place. That there are offices near the place of incident but he has not recorded of any persons from these offices. The mudammal that has been seized has not been sent to the FSL and no print outs of the call details of the mobiles of the accused have Page 15 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined been taken. That the information about the vehicle which did not have a registration plate was not taken from the RTO and during investigation, it was found that none of the accused have any criminal history.
9. On minute appreciation of the entire evidence of the prosecution, the independent panch witness who as per the case of the prosecution was called prior to the watch being arranged at Kalgi Cross Roads, near World Business House has not supported the case of the prosecution and there is no iota of evidence that any weapons or chili powder was found the custody of the accused. Admittedly, the secret information received by the complainant has not been noted at any place and there was no description of the colour, height weight or clothes worn by the accused in the secret information and there is no evidence as to how the complainant was aware about the accused being the persons who had made preparation for dacoity. The Investigating Officer has not recorded the statements of any independent witnesses and the evidence of the complainant as also PW-2 Jayantibhai Babubhai, who are both police employees, is not believable as it is not Page 16 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined corroborated by any independent witnesses. The muddamal that has been seized has not been sent to the FSL and hence, there is no evidence that red powder was, in fact, chili powder and was found from the custody of the accused and that they had in fact made any preparation for dacoity. The Investigating Officer has not investigated about the call details of the mobiles.
10. In view of the above, the learned Trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the Page 17 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025 NEUTRAL CITATION R/CR.A/2064/2009 JUDGMENT DATED: 20/02/2025 undefined present appeal is devoid of merits and resultantly, the same is dismissed.
11. The impugned judgment and order dated 08.05.2009 in Sessions Case No.241 of 2007 passed by the learned Additional Sessions Judge, Court No.17, Ahmedabad is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI Page 18 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:46:56 IST 2025