Gujarat High Court
Ramsinh Kalyanji Bihari vs State Of Gujarat on 4 April, 2025
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Reserved On :-
Pronounced On : 04/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 232 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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RAMSINH KALYANJI BIHARI
Versus
STATE OF GUJARAT
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Appearance:
DARSHAN M VARANDANI(7357) for the Applicant(s) No. 1
MR. SOAHAM JOSHI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
1. Present revision application under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973
is preferred, inter alia, challenging order dated 7.12.2016
passed by learned 3rd Additional Sessions Judge,
Gandhidham - Kachchh (hereinafter referred to as 'the
appellate Court') in Criminal Appeal No. 01 of 2013
confirming the order dated 4.12.2012 passed by 4 th
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Additional Chief Judicial Magistrate, Gandhidham-
Kachchh (hereinafter referred to as 'the trial Court') in
Criminal Case No. 1406 of 2004.
2. The facts leading to filing of the present revision
application is that one Kasam Kherudin Maniyar filed a
complaint on 21.4.2004 at 00:45 hours, before the
Gandhidham Police Station, which came to be numbered
as C.R. No. I-159 of 2004 for the offences punishable
under Section 323, 324, 504, 506(2) and 114 of the Indian
Penal Code, 1860.
3. It was the case of the prosecution that on 20.4.2004
at around 18:30 hours, applicant and other accused had
abused, accused and beaten as well as threatened the
complainant which resulted into injuries being inflicted to
the complainant. The applicant and other accused
persons were arrested on 22.4.2004. On 13.6.2004,
charge-sheet was filed. Subsequent to filing of charge-
sheet, charges came to be framed and trial in Criminal
Case No. 1406 of 2004 came to be conducted.
4. Upon conclusion of the trial, all the accused persons
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were acquitted from charge of offence under Section 324,
504, 506(2), 114 of the Indian Penal Code, 1860 and
Section 135 of the Bombay Police Act. At the same time,
all the accused were convicted under Section 325 of the
Indian Penal Code and sentenced to undergo rigorous
imprisonment of 3 years and fine of Rs.5,000/- each. All
the accused were also convicted for offence under
Section 323 of the Indian Penal Code, 1860 and were
sentenced to undergo rigorous imprisonment of one year
and fine of Rs.1,000/- each. Being aggrieved by judgment
and order dated 4.12.2012 passed by the trial Court in
Criminal Case No. 1406 of 2004, all the accused
preferred an appeal under Section 374 (3) of the Code of
Criminal Procedure, being Appeal No. 01/2013 before the
learned appellate Court. The learned appellate Court, by
way of impugned order dated 7.12.2016, rejected the
appeal of all the accused. Being aggrieved by the
impugned order dated 7.12.2016, present revision is
preferred by only one of the three accused being Ramsinh
Kalyanji Bihari.
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5. Having heard Mr. Darshan Varandani, learned
advocate for the revisionist-applicant and Mr. Soaham
Joshi, learned Additional Public Prosecutor. The main
bone of contention raised by Mr. Darshan Varandani,
learned advocate for the applicant is with regard to mis-
appreciation of the evidence. It has been submitted that
the only ground of conviction of present revisionist-
applicant is deposition of two people i.e. injured eye-
witnesses Saakirbhai, who is examined below Exh-25 and
complainant injured eye-witness Kasambhai, who is
examined below Exh-17. Mr. Varandani, after taking the
Court minutely through the depositions of PW-1 -
complainant Kasambhai and PW No.2 injured Saakirbhai,
submitted that the allegations made by Saakirbhai is that
the present revisionist -applicant i.e. Ramsinh Kalyanji
Bihari had come with an iron pipe and had beaten the
complainant Kasambhai. However, in the deposition of
Kasambhai the role attributed to present applicant is only
to the extent of standing there and caught holding of
Sabirbhai. Therefore, according to Mr. Varandani, the
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only evidence of two eye-witnesses does not implicate
present applicant in any way and there are no other
evidences against the present revisionist-applicant.
Therefore, learned trial Court as well as learned appellate
Court has completely mis-read the evidence. In view of
the same, he has submitted to allow the present revision
application.
6. Per contra, Mr. Soaham Joshi, learned Additional
Public Prosecutor has submitted that the learned trial
Court as well as learned appellate Court has convicted
the present revisionist-applicant after taking due
consideration of the testimonies of the witnesses and
medical evidences. However, it has been categorically
accepted by Mr. Soaham Joshi, learned Additional Public
Prosecutor that after going through the impugned
judgment and order dated 4.12.2012 passed by learned
trial Court as well as order dated 7.12.2016 passed by
learned appellate Court as well as all the evidences in the
record and proceedings, the only evidence against the
present revisionist-applicant is qua the testimonies of PW-
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1 Kasam Kherudin (complainant) and PW-2 Saakir Satuji.
It has been categorically accepted by Mr. Joshi, learned
Additional Public Prosecutor that the only evidence to
implicate the present revisionist-applicant is testimonies
of the two witnesses. If was further stated that Medical
Certificate and history does not provide name of present
applicant and there is no further evidence against present
applicant.
7. Having heard Mr. Darshan Varandani, learned
advocate for the revisionist-applicant and Mr. Soaham
Joshi, learned Additional Public Prosecutor and perusing
the material on record, the case of the revisionist-
applicant hinges on testimonies of two witnesses i.e. PW-
1 Kasam Kherudin (complainant) and PW-2 Saakir Satuji.
8. It is true that in revision, this Court cannot function
as second appellate Court in re-appreciating the
evidence. However, if the evidence is misread, then this
Court can definitely look into it. Having gone through the
testimonies of both the witnesses, the complainant
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categorically states that the present applicant had come
to the scene of offence. However, he had not inflicted any
blow on the complainant i.e. Kasambhai. It has been
categorically stated in the deposition and also in the
cross-examination that accused Anil Chandulal Thacker
had given him a blow by base-ball bat and other accused
Premji Manji Suthar had injured Saakirbhai. It was stated
by complainant Kasambhai that present accused had only
stood there and probably caught hold of Saakirbhai. No
other role was attributed to the present applicant. If
deposition of Saakirbhai is perused carefully, it has been
stated that the present applicant Ramsinh Kalyanji Bihari
had come to the scene of offence and inflicted a blow with
an iron pipe to complainant Kasambhai and, therefore,
injured Premjibhai attribute the role of present applicant
to injured complainant Kasambhai, which in turn
complainant Kasambhai in his testimony has completely
refused.
9. Therefore, simultaneous reading of both the
testimonies of complainant Kasambhai and injured
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Saakirbhai reveals that the role of present applicant is
only to the extent of being present at the scene of offence.
As far as the role of inflicting the blow is concerned,
complete contradictory statements have been given. As a
matter of fact, the role attributed by Saakirbhai to the
present applicant for injuring complainant Kasambhai is
completely refused by the complainant himself.
Therefore, joint reading of testimonies of both the
witnesses simultaneously, completely absolves the
present applicant from giving any blow to any of the
injured. The only piece of evidence, therefore, would be
the medical evidence wherein in the history name of
present applicant is not given. There is no other evidence
which is categorically stated by learned Additional Public
Prosecutor. Therefore, role attributed to the present
applicant can be maximum to the extent of being present
at the scene of offence along with other accused.
However, the learned trial Court has acquitted present
applicant from offence under Section 114 of the Indian
Penal Code, 1860. Against such acquittal, State has not
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preferred any appeal, as stated by learned Additional
Public Prosecutor. Therefore, this revision application is
confined only to the charges against the present applicant
qua for the offence under Section 325, 323 of the Indian
Penal Code.
10. Looking to the discussion made hereinabove, and
going through the testimonies of two eye-witnesses i.e.
PW-1 Kasam Kherudin (complainant) and PW-2 Saakir
Satuji, it can be observed that the learned trial Court as
well as learned appellate Court has completely misread
the deposition of two injured witnesses. Therefore, this
case comes into a category whereby the learned trial
Court as well as learned appellate Court has completely
misread the evidence. It is true that revisional jurisdiction
under Section 397 of the Code of Criminal Procedure is
limited jurisdiction exercisable if the Court below has
committed a manifest illegality. However, if the findings
are perverse and based on misreading of evidence it
results into miscarriage of justice, such issue can
definitely come in the category of manifest illegality. It is
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also true that the High Court cannot, while exercising the
revisional power, undertake indepth and minutely re-
examine entire evidence and upsets concurrent findings
but when the proceedings are concluded based on
misreading of evidence which results into manifest
illegality then revisional powers can definitely be
exercised.
11. In view of the same, present case being the one that
is based on misreading of evidence, the judgment and
order dated 4.12.2012 passed by the learned trial Court
in Criminal Case No. 1406 of 2004 as well as the order
dated 7.12.2016 passed by learned appellate Court in
Criminal Appeal No. 01 of 2013, are quashed and set-
aside to the extent of role of present revisionist applicant
only. The present revisionist applicant is acquitted of
charges under Sections 323 and 325 of the Indian Penal
Code. Rule is made absolute to the aforesaid extent.
(PRANAV TRIVEDI,J)
SAJ GEORGE
