Gujarat High Court
Gopal Ravji Mali vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION)
NO. 1001 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
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Approved for Reporting Yes No
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GOPAL RAVJI MALI
Versus
STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 02/05/2025
ORAL JUDGMENT
[1] The present revision application preferred under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") assails the correctness and validity of judgment and order dated 31.08.2017 passed by the learned 3rd Additional Sessions Judge, Page 1 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined Gandhidham - Kachchh (hereinafter referred to as "the learned Appellate Court") in Criminal Appeal No.160 of 2013, which inter alia dismissed the appeal preferred by the applicant and confirmed the judgment and order dated 22.10.2013 passed by the Chief Judicial Magistrate Court, Gandhidham (hereinafter referred to as "the learned Trial Court") in Criminal Case No.3731 of 2011.
[2] The brief facts leading to the filing of the present revision application are that the case of the prosecution was that the first informant, who was the proprietor of Arihant Electronics, lodged a complaint alleging that on 16.04.2011, he had placed a domestic gas cylinder outside his residence. After returning home from attending a religious program, the first informant discovered that the gas cylinder had been stolen. On occurrence of such incident, a First Information Report came to be lodged before the Gandhidham 'A' Division Police Station being C.R. No.I-128 of 2011. During the course of investigation, the present revisionist applicant - original accused was found in possession of a domestic gas cylinder and electric motor on Page 2 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined 18.07.2011. The possession of such items were without any lawful explanation. Consequently, the stolen items were seized from the present applicant. The investigation was concluded and charge-sheet was filed for offences punishable under Sections 379 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC"). Upon filing of charge- sheet, the charge came to be framed. The prosecution examined 22 witnesses. Eight panch witnesses turned hostile. However, P.W. '4', namely Satishbhai Lalchandbhai corroborated the fact that the gas cylinder at his residence was supplied by the present revisionist applicant. On conclusion of the trial, the present applicant was convicted for offences punishable under Sections 379, 447, 114 of the IPC and was sentenced simple imprisonment of 1 year.
[2.1] Being aggrieved by the order of conviction passed by the learned Trial Court, present applicant preferred an appeal under Section 374 of the Code, which came to be numbered as Criminal Appeal No.160 of 2013. The learned Appellate Court by way of the impugned judgment and order dismissed the Page 3 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined appeal preferred by the present revisionist - applicant and confirmed the order of conviction passed by the learned Trial Court. This order has culminated into filing of present revision application.
[3] Heard Mr. Vishal Anandjiwala, learned advocate for the applicant and Mr. Hardik Soni, learned Additional Public Prosecutor for the respondent - State.
[4] Mr. Vishal Anandjiwala, learned advocate for the applicant has submitted that the applicant is absolutely innocent and has not committed any offence as alleged against him. The case solely hinges on circumstantial evidence and there are no eye- witnesses. The authorities have failed to produce any documentary evidence of any kind of procurement of gas cylinder by the applicant. The charges against the applicant are leveled as per the convenience of the police authority. It was further submitted that the First Information report was lodged on 15.07.2011, while the arrest was made on 16.07.2011 and, therefore, the prosecution has failed to provide any detail as to Page 4 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined what took place in between the 7 days. Additionally, no material has been placed on record to show that the gas cylinders were in possession of the applicant or they were stolen by the applicant. It was further submitted that high reliance is placed on the testimony of Satishbhai Lalchandbhai, which is absolutely not justified. It was further submitted that the panchas have turned hostile and further there was no Test Identification Parade. It was further submitted that there are allegations of theft and sale of a regulated commodity like a gas cylinder. The supply of gas cylinder is always in exchange of an unfilled gas cylinder. Therefore, there has to be a record of the gas cylinders supplied an empty ones taken back. There is no justification in making allegations as to how the gas cylinders are supplied by the present applicant to Satishbhai Lalchandbhai. It was further submitted that the prosecution case is based on demonstration panchnama, which is inadmissible as per Section 27 of the Evidence Act. On basis of such submission, Mr. Anandjiwala prayed to allow present revision application.
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NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined [5] Per contra, Mr. Hardik Soni, learned Additional Public Prosecutor for the respondent - State has submitted that there are concurrent findings recorded by both the learned Trial Court as well as learned Appellate Court. The evidence of Satishbhai Lalchandbhai is crystal clear that the gas cylinder was stolen by the present applicant and was subsequently supplied to Satishbhai Lalchandbhai. This comes in the testimony of Satishbhai Lalchandbhai. It was further submitted that there are antecedents against the present revisionist - applicant. Therefore, he is an habitual offender and no leniency is warranted in favour of the present applicant in wake of the concurrent finding of both the learned Trial Court as well as the learned Appellate Court.
[6] Having heard the learned advocates appearing for the respective parties and having perused the material on record, it appears that the arguments advanced by Mr. Vishal Anandjiwala, learned advocate for the applicant are mainly confined to a re-appreciation of the evidence. As per Mr. Anandjiwala, learned advocate for the applicant the panchs have Page 6 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined turned hostile and the demonstration panchnama cannot be a ground of conviction of the applicant. However, what is required to be seen is that subsequent to the allegations of theft of gas cylinder, the authorities had arrested the present revisionist - applicant and found certain gas cylinders with him and which were in possession of the applicant. Thereafter, it had transpired that the applicant was selling the stolen gas cylinders to third parties. Even though gas cylinders are a regulated commodity, instances of black-market supply arise when there is increased demand. The statement of Satishbhai Lalchandbhai, which is not controverted and even established in her testimony confirmed the fact that present revisionist - applicant had supplied the stolen gas cylinders to the third parties including petitioner. In view of the same, there cannot infirmity attached to the conviction of the present revisionist - applicant.
[7] The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and Page 7 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined based on misreading of evidence resulting into miscarriage of justice. The principles for exercise of revisional jurisdiction under Section 397, Cr.P.C. were highlighted in D. Stnbens Vs Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of Andhra Pradesh [1963 SCR 412]. In State of Maharashtra Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004) 7 SCC 659], the Apex Court reiterated that the revisional power of the High Court under Sections 397 and 401, Cr.P.C. cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisonal power, undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of the trial court and first appellate court.
[8] Keeping in view the parameters for exercise of revisional jurisdiction, it could not be said that the orders passed by the courts below and the concurrent findings arrived at, were proper. They were factual in nature. The courts below could not be said to have committed any error in holding that the offence was committed. Even though the conviction of the present Page 8 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025 NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined revisionist- applicant is confirmed, the aspect of sentence is required to be looked into. The main allegations are theft of gas cylinders and in the present case, around 2 to 6 gas cylinders. Therefore, the punishment of 1 years would seem to be little bit harsh. However, Mr. Hardik Soni, learned Additional Public Prosecutor for the respondent - State has produced on record the statement of the antecedents of present revisionist - applicant. A perusal of the record reveals that there are as many as 13 antecedents, most of which are subsequent to the incident in question and they are from the year 2013 to 2020. Therefore, the present revisionist - applicant is a habitual offender. Ordinarily, considering the limited quantum of theft involved in the present case, a more lenient sentence may have been justified. However, looking to the conduct of the applicant such aspect would not be permissible. The sentence is definitely required to be reduced looking to the nature of offence. However, looking to the history of antecedents of present revisionist - applicant at least 3 months of sentence is required to be confirmed. The only modification is to the quantum of sentence which is reduced from 1 year to 3 months. Page 9 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025
NEUTRAL CITATION R/CR.RA/1001/2017 JUDGMENT DATED: 02/05/2025 undefined Further, a period of 4 weeks is granted to the present revisionist
- applicant to surrender before the jail authorities. [9] In view of the reasons mentioned hereinabove, the present revision application is dismissed to extent that the conviction order passed by both the learned Trial Court and the learned Appellate Court are confirmed. However, the sentence is reduced from a period of 1 year to 3 months.
Sd/-
(PRANAV TRIVEDI, J.) DHARMENDRA KUMAR Page 10 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 23:59:25 IST 2025