Gujarat High Court
Gopal Ravji Mali vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION)
NO. 1000 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 filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") assailing the correctness and validity of order dated 31.08.2017 passed by the learned Sessions Judge, Gandhidham - Kachchh (hereinafter referred to Page 1 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined as "the learned Appellate Court") in Criminal Appeal No.159 of 2013, wherein the learned Appellate Court has confirmed the order of conviction and sentence passed by the Chief Judicial Magistrate Court, Gandhidham (hereinafter referred to as "the learned Trial Court") in Criminal Case No.3729 of 2011 . [2] The brief facts leading to the filing of the present revision application are that a First Information Report came to be lodged before the Gandhidham 'A' Division Police Station being C.R. No.125 of 2011, inter alia, alleging that the present revisionist - applicant along with the help of other accused had committed theft of gas cylinders on 07.07.2011. It was further alleged that the first informant was having a function on 09.07.2011 and at around 20:00 hours. The gas cylinders, which had been kept at the venue of function, namely Agrawal Samaj Wadi were stolen. On the occurrence of such incident, a First Information Report for offence punishable under Sections 380 and 114 of the Indian Penal Code (hereinafter referred to as "the IPC") was lodged. Upon investigation, it was found out that the present applicant has stolen the gas cylinders. It has also Page 2 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined come into investigation that the gas cylinders were given to one Rajiben Mithubhai Kuvariya. Upon completion of the investigation, charge-sheet came to be filed and charge came to be framed. The case was registered as Criminal Case No.3729 of 2011. By way of the judgment and order dated 22.10.2013, the learned Trial Court convicted the present applicant for the offence punishable under Section 380 read with Section 114 of the IPC and sentenced him to undergo simple imprisonment of one year.
[2.1] Being aggrieved by the order passed by the learned Trial Court, present revisionist - applicant preferred an appeal under Section 374 of the Code. The appeal came to be numbered as Criminal Appeal No.159 of 2013. By way of the impugned order dated 31.08.2017, the learned Appellate Court dismissed the appeal preferred by the present revisionist - applicant and confirmed the order passed by the learned Trial Court. This dismissal of the appeal has led to filing of the present revision application.
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NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined [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 cylinders 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 13.07.2011, while the arrest was made on 16.07.2011 and, therefore, the prosecution has failed to provide any detail as to 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 Rajiben Mithubhai Kuvariya, which is Page 4 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined 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 Rajiben Mithubhai Kuvariya. 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.
[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 Rajiben Mithubhai Kuvariya is crystal clear that the gas Page 5 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined cylinders were stolen by the present applicant and were subsequently supplied to Rajiben Mithubhai Kuvariya. This comes in the testimony of Rajiben Mithubhai Kuvariya. 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 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 cylinders, the authorities had arrested the present revisionist - applicant and found certain gas cylinders with him Page 6 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined 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 Rajiben Mithubhai Kuvariya, 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 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 Page 7 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined 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 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 Page 8 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined 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. 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 Page 9 of 10 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Tue May 06 01:46:23 IST 2025 NEUTRAL CITATION R/CR.RA/1000/2017 JUDGMENT DATED: 02/05/2025 undefined 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 01:46:23 IST 2025