Gujarat High Court
State Of Gujarat vs Umar Sulemanbhai Miyana on 9 July, 2025
NEUTRAL CITATION
R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 694 of 2011
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
UMAR SULEMANBHAI MIYANA
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Appearance:
MR PRANAV DHAGAT, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/07/2025
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 order passed by the learned 2nd Additional Sessions Judge, Dhangadhra (hereinafter referred to as 'the learned Appellate Court') dated 31.11.2011 in Criminal Appeal No.1 of 2010, Page 1 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined whereby, the learned Appellate Court has quashed and set aside the judgment and order 08.12.2009 passed by the learned Judicial Magistrate First Class, Dhangadhra, (hereinafter referred to as 'the learned Trial Court) in Criminal Case No. 857 of 2005, wherein, the learned Trial Court was pleased to convict and sentence the respondent to undergo simple imprisonment of six months and fine of Rs.500/-, and in default, simple imprisonment of one month for the offence punishable under Section 142 of the Bombay Police Act (hereinafter referred to as 'the B.P.Act'). 1.1. The respondent is hereinafter referred to as 'the accused' as he stood 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 Sub Divisional Magistrate, Dhanghdra passed the order of externment on 03.05.2004 externing the accused from the limits of Surendranagar for a period of two years in Externment Case No. 15 of 2004. The respondent violated the order of Page 2 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined externment and on the day of incident, he was found with a knife near his residence in Dhangadhra Housing Board. An FIR being II-
C.R.No.155 fo 2005 was filed with the Dhangadhra Police Station for the offence under Sections 135 and 142 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 charge sheet came to be filed before the Court of the Judicial Magistrate, First Class, Dhangadhra, which was registered as Criminal Case No.857 of 2005.
2.3. The accused was 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. The plea of the accused was recorded at Exh.5, wherein, the accused denied all the contents of the offence against him and the entire evidence of the prosecution was taken on record. The prosecution examined 6 witnesses and produced 3 documentary evidences in Page 3 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined support of the case.
2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence on record. 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 dated 08.12.2009, was pleased to convict the accused and sentence him to simple imprisonment for six months and fine of Rs.500/- and in default, simple imprisonment of one month and the offence punishable under Section 142 of the B.P.Act.
2.5. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the accused preferred Criminal Appeal No.1 of 2010 before the learned Additional Sessions Court, Dhangadhra, whereby, the appeal preferred by the accused came to be allowed and the learned 2 nd Additional Sessions Judge, Dhangadhra quashed and set aside the Page 4 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined judgment and order of conviction in Criminal Case No. 857 of 2005 passed by the learned Judicial Magistrate First Class, Dhangadhra on 08.12.2009 and acquitted the accused from the offence
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the Appellate Court is ex-facie, illegal, arbitrary and without properly appreciating the facts of the case and the materials available on record. The learned Appellate Court has erred in appreciating the evidence and without there being cogent and substantial reasons, acquitted the accused. The Appellate Court has erred in appreciating the oral as well as the documentary evidences produced by the prosecution in its true spirit and straightway arrived at the conclusion that the prosecution has failed to prove the case beyond reasonable doubts, and therefore, the order of acquittal passed by the learned Appellate Court requires to be quashed and set aside.
4. Heard learned APP Mr.Pranav Dhagat for the Page 5 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined appellant - State. Perused the impugned judgment and order of acquittal passed by the Appellate Court as well as judgment and order of conviction passed by the learned Trial Court and have re- appreciated the entire evidence of the prosecution on record of the case. Though served, the respondent has not appeared either in person or through an advocate.
4.1. Learned APP Mr.Pranav Dhagat for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the Appellate Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the case and has successfully proved the case against the accused but the Appellate Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned 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 Page 6 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined 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.
5. As per the case of the prosecution, an externment order externing the accused from the villages of Dhangadhra, Taluka Dhangadhra, District Surendranagar was passed by the Sub- Divisional Magistrate, Dhangadhra and the same is produced at Exh.19, and even though, the externment order was in existence, the complainant Rajendrasingh Gambhirsingh Rana, Unarmed Police Head Constable, Backle No.1157, Dhangadhra City Police Station had received secret information that the accused had come to his residence in Dhangadhra Housing Board. The complainant along with ASI C.G.Parmar, ASI A.J.Malek, ASI B.V.Malek, Head Constable Chotubha Varshaji, Police Constable Virendrasinh and Police Inspector M.B.Amrutia had gone to Dhangadhra Housing Board at around 2.40 hours on 25.09.2005 and they found the accused fleeing from the place as he saw the police staff. They arrested him and the complaint was filed by the complainant Rajendrasinh Gambhirsinh Rana which is produced at Exh.8. To Page 7 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined prove the offence against the accused, the complainant has deposed an oath at Exh.7 and the FIR has been produced at Exh.8.
6. The prosecution has also examined PW-2 Firozbhai Ahmedbhai at Exh.11 and PW-3 Rafiqbhai Rasoolbhai at Exh.13. Both the witnesses are the panch witnesses of the arrest panchnama, which is produced at Exh.12, but both the witnesses, who are independent witnesses, have not supported the case of the prosecution and have been declared hostile. 6.1. The prosecution has examined PW-4 Chotubha Varshaji Vala at Exh.16 and the witness was along with the complainant and others at the time when the accused was arrested. If the deposition of the complainant and PW-4 Chotubha Varshaji Vala is perused, they have both admitted that the Dhangadhra Housing Board is a large area and there are a number of persons residing there. They did not verify as to whether the accused had taken any permission to enter into the area, and in the complaint, the complainant has not given the names of any independent witnesses and they have not recorded the statements Page 8 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined of any independent witnesses. Moreover, the complainant has admitted that when an externment order is passed, the place, where, the accused has been placed and the details of the place, where, the accused resided has been kept in the police station, but no such evidence has come on record.
6.2. PW-5 Virendrasinh Bhagwasinh Jadeja examined at Exh. 17 is the Investigating Officer, who has investigated the offence and PW-6 Pranav Janakrai Dave examined at Exh. 18 and the witness is the clerk working in the Sub Divisional Office, Dhangadhra and he has produced the externment order at Exh.19.
7. If all the evidence on record is perused, there are no independent witnesses examined by the prosecution and no evidence that the accused was actually present at the place when he was arrested. The place where the accused has been arrested is a residential area and the prosecution has not proved beyond reasonable doubts that the accused was at that place and only the complainant and PW-4, who was a member of the police party that was at the place have been examined. The family members of the Page 9 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined accused or the neighbours would also be available, but they have not been examined by the learned Trial Court. In light of this evidence, the evidence that is appreciated by the learned Appellate Court is just and proper and there is no iota of evidence that even though, the externment order was passed, the accused had entered into Dhangadhra city.
8. In view of the above, the learned Appellate 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 Appellate Court has appreciated all the evidence and this Court is of the considered opinion that the learned Appellate Court was completely justified in acquitting the accused of the charge leveled against him. The findings recorded by the learned Appellate Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Appellate Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Appellate Court. This Court finds no reason to interfere with the impugned judgment Page 10 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025 NEUTRAL CITATION R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025 undefined and order passed by the learned Appellate Court and the present appeal is devoid of merits and resultantly, the same is dismissed.
9. The impugned judgment and the order dated 31.11.2011 in Criminal Appeal No.1 of 2010 passed by the learned 2nd Additional Sessions Judge, Dhangadhra is hereby confirmed.
10. Bail bond stands cancelled. Record and proceedings be sent back to the learned Appellate Court forthwith.
Sd/-
(S. V. PINTO,J) F.S. KAZI Page 11 of 11 Uploaded by F.S. KAZI(HC01075) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 21:26:57 IST 2025