Gujarat High Court
State Of Gujarat vs Kalu @ Hashmukh Manjibhai Koli on 22 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 825 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
KALU @ HASHMUKH MANJIBHAI KOLI & ANR.
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Appearance:
Ms. Dhwani Tripathi, APP for the Appellant(s) No. 1
MR PARAM R BUCH(5625) for the Opponent(s)/Respondent(s) No. 1,2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned 3rd Additional Sessions Judge, Veraval, (hereinafter
referred to as "the learned Trial Court") in Sessions Case No.
28/2008 on 28.02.2011, whereby, the learned Trial Court
has acquitted the respondents for the offence punishable
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under Sections 393, 397 read with Section 34 and 120B of
IPC and Section 135 of the B.P. Act.
1.1 The respondents are hereinafter referred to as "the
accused" as they stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The complainant - Sunilkumar Manoharlal Dave was
working as the Manager of State Bank of India, Adri branch
on 16.01.2008 and it was a working day and after working
for the entire day, as the bank hours were over, staff
members Special Assistant - Narendrabhai Jani, Cashier -
Anilbhai Lakhani and Peon - Sureshbhai Goswami had left
the Bank Premises and the complainant - Sunilkumar
Manoharlal Dave and Peon - Amarshibhai Poojabhai Jadhav
were working in the bank. At that time Pratapbhai
Ramanlalbhai Parmar of Navapara village had come for
inquiry about his account with the bank and they were
sitting and talking and at that time both the accused
entered the bank between 06.30 pm to 06.45 pm with their
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faces covered with a white cloth and one person came
directly to the complainant - Sunilkumar Manoharlal Dave
and the other person went to the Peon - Amarshibhai. Both
the persons were armed with big steel knives and without
saying anything assaulted the complainant and the
complainant sustained injuries on the wrists of both hands
and near his neck. Pratapbhai who was seated nearby
intervened and he too was assaulted and the complainant
managed to come out of the bank and shouted and persons
from nearby including Varjangbhai Punjabhai Solanki,
Rajubhai Karshanbhai Solanki, Ukabhai Lakhabhai Barad
and others came. Both the persons tried to run away and
one of the person was caught by the villagers and he was
the accused no. 1 - Kalubhai @ Hasmukh Manjibhai Kodi
residing at Veraval. As all of them had sustained injuries,
they were taken to the hospital at Adri village and from
there they were taken to the Government Hospital at
Veraval and as their injuries were more serious they were
taken to the Sanjeevani Hospital Veraval for treatment. The
complainant filed the complaint from Sanjeevani Hospital
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before the PSI Somnath Marine Police Station which was
registered at Somnath Marine Police Station I - C.R. No. 2
of 2008 under Sections 393, 397, 34 of the IPC and Section
135 of the BP Act.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the learned Judicial Magistrate
First Class, Veraval and as the said offences against the
accused were exclusively triable by the Court of Sessions,
the case was committed to the Sessions Court, Veraval as
per the provisions of Section 209 of Code of Criminal
Procedure and the case was registered as Sessions Case No.
28/2008.
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. A charge at Exh. 10 was framed against the
accused and the statements of the accused were recorded at
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Exhs. 11 and 12, wherein, the accused denied the contents
of the charge and the entire evidence of the prosecution was
taken on record.
2.4 The prosecution has examined 12 witnesses and
produced 27 documentary evidences and after the learned
APP filed the closing pursis, the further statement of the
accused under Section 313 of the Code of Criminal
Procedure, 1973 was recorded, wherein, the accused denied
all the evidence of the prosecution on record. After the
arguments of the learned APP and the learned advocate for
the accused were heard, the learned Trial Court by the
impugned judgement and order was pleased to acquit the
accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant - State has
filed the present appeal mainly stating that the impugned
judgment and order of acquittal passed by the learned Trial
Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the fact that all the
witnesses have supported the case of the prosecution and
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during the cross-examination, nothing adverse has been
elicited in favor of the respondents. The case has been
proved beyond reasonable doubt and the prosecution has
successfully established the case against the respondents
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the law and the
reasons stated while acquitting the respondent are
improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
4. Heard learned APP Ms. Dhwani Tripathi for the
appellant State and learned advocate Mr. Param Buch for
the respondents. Perused the impugned judgement and
order of acquittal and have reappreciated the entire
evidence of the prosecution on record of the case.
5. Learned APP Ms. Dhwani Tripathi has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the complainant has fully
supported the facts of his complaint. The impugned
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judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
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 regarding the scope of
interference in acquittal appeals in the case of Chandrappa
& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, 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 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
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assign reasons for differing with the decision of the trial
court".
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
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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.
(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.
7. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. The learned
Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the
prosecution has not proved the case beyond reasonable
doubts, the presumption of innocence in favour of the
accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after
re appreciation, the view taken by the learned Trial Court
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was a possible view, there is no reason for the Appellate
Court to interfere in the same.
8. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Dayaram Dahyabhai at
Exh. 16 and the witness is the panch witness of the arrest
panchnama of the accused no. 1 which is produced at Exh.
17. The witness has fully supported the case of the
prosecution and during the cross examination by the
learned advocate for the accused the witness has stated
that he did not dictate any portion of the panchnama to the
police and he generally is doing the work of taking
photographs at Somnath Temple. The police station is
towards the left of that place and he is known to all the
police personnel. That he is normally working from 07.00
am to 07.00 pm in and around the Somnath Temple and he
was not called at night by any person.
8.1 The prosecution has examined PW2 - Danabhai
Khimabhai Barad at Exh. 22 and the witness is the panch
witness of the panchnama of the place of offence which is
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produced at Exh. 23. The witness has fully supported the
case of the prosecution and has stated that he was called to
the bank along with the other panch witness - Bharatbhai
Jinabhai Baku and they had gone into the bank which was
a big hall and there was a big table on which files were
scattered and there were blood drops on the files and on
the floor. The police had taken the samples of the blood and
there was a knife which was near a bag which was also
seized by the police. During the cross-examination by the
learned advocate for the accused, the witness has stated
that he had seen the blood and one knife was found from
the front portion of the bank from the bushes of the Acacia
Trees. The police had recovered the knife and had told him
that the knife was found from the the Acacia Trees.
8.2 The prosecution has examined PW3 - Rameshbhai
Jadavbhai Pandit at Exh. 32 and the witness is the panch
witness of the panchnama by which the clothes of the
complainant and the injured were seized by the police. The
witness has fully supported the case of the prosecution and
the panchnama is produced at Exh. 33. During the cross-
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examination by the learned advocate for the accused the
witness has stated that he did not verify the names of the
persons whose clothes were seized and he does not know
any marks of identification of the three persons. When he
reached the Sanjeevani Hospital, the panchnama was ready
and he had affixed his signature but he does not know
which person had worn which clothes.
8.3 The prosecution has examined PW4 - Bashirbhai
Valimamadbhai at Exh. 37 and the witness is the panch
witness of the arrest panchnama by which the accused no.
2 was arrested and the panchnama is produced at Exh. 39.
During the cross-examination by the learned advocate for
the accused the witness has stated that the mudaamaal
mobile is available in the market freely and when he had
gone to the police station the panchnama was ready and
the police had nearly asked him to affix his signature on
the same and he had affixed his signature.
8.4 The prosecution has examined PW5 - Sunilkumar
Manohardas Dave at Exh. 40 and the witness is the
complainant who has fully supported the contents of the
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complaint which is produced at Exh. 41. During the cross-
examination by the learned advocate for the accused the
witness has stated that no Test Identification Parade of the
accused was conducted by the Executive Magistrate and
the timings of his branch are written outside the branch
and the timings are from 10.15 to 05.15 on weekdays and
from 10.15 to 02.30 on Saturdays. That when the work
employees leave, they sign in the register and then leave the
office and if he is required to keep the office open beyond
office hours, he has to inform the head office. In the month
of January it gets dark earlier and on the date of incident at
around 06.45, it was dark. On the date of the incident the
telephone was working in his office and he had his mobile
with him till he had gone to the hospital. That after the
incident, the police did not seize any documents from his
office and the village people had brought the accused and
the accused no. 1 was known to him as he had come for
book binding work in the bank. He does not remember
whether he had named the accused in the complaint and
he had told the doctor that the accused had come with
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covered faces and with big knives. He did not inform the
police that he was known to the accused no. 1 while filing
the complaint. That in the complaint he had stated that he
did not see the face of the persons who had come into the
bank and he had not described the clothes worn by the
accused.
8.5 The prosecution has examined PW6 - Amarshibhai
Punjabhai Jadav at Exh. 49 and the witness was working
as the peon in State Bank of India, Adri branch on the date
of the incident and was an injured and eyewitness to the
incident. The witness has fully supported the case of the
prosecution and during the cross-examination the witness
has stated that after 04.00 pm they do not do any
transactions with customers and if a person comes and
finds that the bank is closed, they would leave within two
minutes. On the date of the incident they had closed the
strong room and other rooms and had locked all the
cupboards. That no person is generally required to come
after 06.00 pm to the bank and both the accused had come
one after the other in the bank with their faces covered with
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a cloth and they could not be recognized. The police did not
inquire from him about the height of the accused or the
description of the accused and immediately after the
incident, they had gone out and after they came to the
hospital they decided to file the complaint and his manager
had filed the complaint. That both he and his manager had
mobile phones and the police did not come to the place of
incident on the date of the incident.
8.6 The prosecution has examined PW7 - Pratap
Ranmalbhai Parmar at Exh. 50 and the witness is an
injured and eyewitness to the incident. The witness has
stated that on the date of the incident he was working as a
Teacher in J.K. Baku Primary School and he had gone to
the bank and he had witnessed the incident. During the
cross-examination by the learned advocate for the accused
the witness has stated that he had gone to collect
information for opening a bank account and his account
was opened on the next day. That his salary as a teacher
was about Rs. 1000/- per month and he was earlier
working as a daily wager in the bank. The salary as a daily
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wager was being paid by him on vouchers and the bank
manager has the authority to employ daily wages. That
when the accused had entered into the bank, Amarshibhai
was in his chamber and when he had gone to the hospital,
he had spoken to the bank manager and the peon. That he
was not called for any Test Identification Parade or to
identify any of the accused.
8.7 The prosecution has examined PW8 - Praful
Devshibhai at Exh. 52 and the witness is a neighbor of the
bank. The witness has stated that on 16.01.2008, he was at
his house and at around 06.00 pm to 07.00 pm he heard
someone shouting and he ran and saw the Bank Manager -
Sunil Dave bleeding from his chin and he had kept a
handkerchief on his injury. He asked the Manager what
had happened and the Manager told him that one person
had come with a covered face had assaulted him with a
knife. He asked him which side did they go and the Bank
Manager told him that they had gone on the road adjacent
to the bank. Six to seven persons including the witness ran
behind them and they caught one person and brought him
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to the bank. He had his face covered and peon -
Amarshibhai was also injured and they were taken to the
hospital. During the cross-examination by the learned
advocate for the accused the witness has stated that the
accused no. 1 was working in the bank and is known as
Kalu. That he knows them as the Bank Manager would talk
about them and he had seen the accused no. 1 coming and
going in and out of the bank. That he was known to the
accused no. 1 prior to the incident and Pratapbhai
Ranmalbhai was also working as a daily wager in the bank.
That on the date of the incident, Pratapbhai was present on
his duty in the bank and after the person who was caught
was taken to the bank he went away. That the police had
recorded his statement on the next day and after the person
was caught and taken to the bank, he had called the police
and the police had come and taken the person away.
8.8 The prosecution has examined PW9 - Ukabhai
Lakhabhai Barad at Exh. 53 and the witness has stated
that his residence is near the State Bank of India, Adri
Branch and on 16.01.2008 the incident had taken place in
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the evening. That he was at his house and he heard some
shouts and he came out and he saw the complainant
shouting and he had blood in his hands. The complainant
had told them that two persons had come with the
intention of committing a robbery and had injured him with
a knife and both the persons had ran away behind the
Acacia Trees. That they went towards the Acacia Trees and
caught one person and brought him to the bank. During
the cross-examination by the learned advocate for the
accused the witness has stated that he knows Amarshibhai
and Pratapbhai and on the date of the incident Pratapbhai
was working and he does not know whether Pratapbhai was
working in the bank on the date of the incident. That he
had taken a loan from the State Bank of India and the
police had asked him about his name, business details etc.
but he was never called by the Executive Magistrate for a
Test Identification Parade. That no one had made a phone
call to the police station regarding the incident in his
presence.
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8.9 The prosecution has examined PW10 - Dr.
Kishorkumar Raghuvirdas Hariyani at Exh. 55 and the
witness was working as the Medical Officer in the
Government Hospital at Veraval. The witness has stated
that on 16.01.2008 at around 07.55 hours, Sunilbhai
Manharbhai Dave had come to the hospital at 07.55 pm for
treatment. The injured had stated that two persons with
their faces covered armed with knives had come at about
06.30 pm to commit a robbery at the SBI, Adri Branch. The
injured was brought by Kanjibhai Varjangbhai Solanki and
on examination, there was an oblique incised wound on the
left wrist medially and vertically with sharp clean-cut
margins with size 1½ cm x 1/2 cm, one wound on the left
hand dorsum incised wound size 1/4 x 1/4 which was
superficial, an incised wound of 1/4 x 1/4 with clotted
blood was on the right forearm middle 1/3rd and there was
an oblique incised wound on the right side of the neck
which was superficial skin deep and 1/2 cm x 1/4 cm in
size with clotted blood. The injured was advised to consult a
surgeon and was referred to Sanjeevani Trauma Hospital
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for expert opinion. All the injuries could be sustained by a
sharp cutting instrument. The medical certificate of
Sunilbhai Manharlal Dave is produced at Exh. 56. At the
same time and on the same day, Amarshibhai Punjabhai
was brought for treatment by Kanabhai Varjangbhai
Solanki and he had given the same history. On examination
he had an incised wound on the right fronto parietal part of
head 3 cm x 1/2 cm into skull deep which was superficial.
The injury had sharp clean-cut margins and bleeding was
present. The injured was advised to consult the General
Surgeon at Sanjeevani Trauma Hospital and was referred
for expert opinion. The injuries as such were simple but
grievous if there would be any complications and could be
sustained by a sharp cutting instrument. At the same time
and on the same day Pratapbhai Ranmalbhai Parmar - a
resident of Navapara had come for treatment and he was
brought by Kanjibai Vajrangbhai Solanki and in the history
he had stated that he was assaulted by two persons at SBI,
Adri Branch and both the persons had their faces covered.
On examination, the injured had sustained an oblique
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incised wound on the left ring finger base near palm which
was 1 cm x 1/4 cm in size. The margins were sharp and
clear with clotted blood and an incised wound on the left
middle finger on distal phalanx near the joint with clotted
blood. The injury was 1/2 cm x 1/2 cm and it was
superficial. The patient was advised to consult the General
Surgeon at Sanjeevani Trauma Hospital. The injuries were
simple but grievous if there was any fracture and the cause
of injury was a sharp cutting weapon. The witness has
produced the injury certificate of Amarshibhai Punjabhai at
Exh. 57 and the injury certificate of Pratapbhai Ranmalbhai
Parmar at Exh. 58. During the cross examination by the
learned advocate for the accused, the witness has stated
that there are a number of corrections in the case papers
and the medical certificates in the dates and Sunilbhai was
treated first. All the injured had come together and the
injuries of Amarshibhai and Pratapbhai were simple. The
injuries sustained by the injured could be accidental and
could be self-inflicted also. During the time that the injured
were at his hospital, no police officer had come to the
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hospital and the case papers do not mention the time and
date at which the injured were discharged from the
hospital.
8.10 The prosecution has examined PW11 - Dr. Vinay
Raghuvirdas Hariyani at Exh. 62 and the witness was
working as a Medical Officer in Sanjeevani Hospital when
Pratapsinh Ranmalbhai, Sunilkumar Manharlal and
Amarshibhai Punjabai had come to the hospital with a
referred chit of Civil Hospital, Veraval. On examination of
Pratapsinh Ranmalbhai, he had stated that he was
assaulted with a knife on the left hand at the SBI Adri
Branch at 06.30 pm on 16.01.2008. On examination, there
was a contused lacerated wound of 5 cm irregular with
sharp margins between the second and the third finger and
it was bleeding and a contused lacerated wound of 5 cm x 1
cm on the left hand middle finger. On taking an x-ray, there
was no fracture and stitches were taken. The injuries could
be sustained with a sharp and hard weapon and the
medical certificate is produced at Exh. 63. On examining
Sunilkumar Manharlal, he had stated that he was working
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as a Bank Manager in the Adri Branch and he was injured
on his left hand, right hand and right side of his neck on
16.01.2008 at around 06.00 pm. On examination, there
was a CLW 7 cm x 2 cm on the elbow of the left hand 5 cm
above the elbow and the margins were sharp. A sharp
vertical abrasion on the right side of the neck 7 cm x 2 cm
and a pointed abrasion on the middle of the right hand. On
taking the x-ray, there was a fracture of the right hand and
fracture of the left hand and the fractures were treated by
the Orthopedic Surgeon. The medical certificate is produced
at Exh. 64. On examining Amarshibhai Punjabai Jadhav,
he had stated that he had sustained an injury on the head
with a knife at the Adri SBI Branch and on examining he
had a CLW 7 cm x 1 cm on the right side of the head in the
middle portion and the margins were sharp. There were no
injury below the bone and on x-ray there was no fracture.
The medical certificate of Amarshibhai Punjabai Jadhav is
produced at Exh. 65. During the cross examination by the
learned advocate for the accused, the witness has stated
that he had gone to the Government Hospital to check the
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patients and he was called at around 07.30 pm by the
doctor. That he reached the hospital in 5 to 10 minutes and
at that time Dr. Haryani was treating the patients. That he
had taken all the patients for treatment to his hospital with
the refer note but he had not seen the treatment papers of
the Government Hospital. In the certificate produced at
Exh. 63, Exh. 64 and Exh. 65, the time at which the
patients were admitted to the hospital is not written and he
has not produced any such evidence that the patients were
admitted for treatment at his hospital before the police. The
certificates produced at Exh. 63 to Exh. 65 do not state
when the patients were discharged.
8.11 The prosecution has examined PW12 - Popatbhai
Somabhai Parmar at Exh. 67 and the witness is the
Investigating Officer who has narrated in detail the entire
procedure undertaken by him during investigation. During
the cross-examination by the learned advocate for the
accused, the witness has stated that a knife with a black
cover was seized in the presence of the panch witnesses
and the knife that was seized did not have any blood stains
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on it. The knife - Muddamal Article No. 11 with blood stains
was found from the Acacia Trees and seized in the presence
of the panch witnesses. The Muddamal seized during
investigation was not sent to the FSL for investigation as he
was transferred from Somnath Marine Police Station to
Veraval City Police Station and the Muddamal was kept at
the police station. That he did not discuss about sending
the Muddamal to the FSL with any of his police personnel.
During investigation, there was nothing on record to
suggest that any robbery or dacoity had taken place and
during investigation it was found that all the three injured
were injured in an assault. The complaint was filed by
Sunilbhai Manharlal Dave and the person whose blood was
taken was Anilkumar Manharlal Dave but the letter did not
bear the signature of any police officer. No injuries were
found on the accused and the panch witnesses were
brought by his writer but he does not know where they
were called from. That he did not record the statements of
any persons at Chotila Guest House and he did not find
any evidence about the accused halting at Chotila or Rajkot
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Guest House. That no Test Identification Parade of the
accused was conducted during the entire investigation.
9. On reappreciation of the entire evidence of the
prosecution, as per the complaint of the complainant, while
he was sitting in the office along with Peon - Amarshibhai
Punjabbhai Jadhav and Pratapbhai Ranmalbhai Parmar,
two persons had entered into the bank with their face
covered and had assaulted them. The complainant has
stated that Pratapbhai Ranmalbhai had come to inquire
about the details of his account with the bank but in the
evidence it has come on record that Pratapbhai Ranmalbhai
Parmar was a daily wager in the bank and the bank hours
are up to 05.15 pm and there was no reason for any person
to come for inquiry about opening a bank account after
06.30 pm. All the witnesses have stated that the accused
had come with their faces covered and in the complaint, the
complainant has stated that after the neighbours had
caught the accused no. 1 and brought him to the bank, he
came to know that his name was Kalu @ Hasmukh
Manjibhai Kodi but in the evidence, it has come on record
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that the accused no. 1 was doing book binding work in the
bank but for reasons best known to the complainant, he
has not stated that he was known to the accused no. 1
prior to the incident. What has emerged on record is that
after the accused had ran away, the village people went and
brought the accused no. 1 back but there is no iota of
evidence that it was the same person who had entered into
the bank as there is no description of the persons who had
entered into the bank given by the complainant or the other
two witnesses. The description of the clothes worn by the
accused at the time of the incident is also not given by the
complainant or the witnesses and as per the evidence, after
the incident had occurred, one knife with a black cover was
found from the bank and one knife was found from outside
of the bank in the Acacia Trees. The knife which was found
from inside the bank did not have any blood stains and the
knife which was found from outside in the the Acacia Trees
had blood stains on them but in the deposition of the
Investigating Officer, it has come on record that the
muddamal was not sent to the FSL for investigation. Hence,
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there is no evidence that the knife that was recovered from
outside with the blood stains was the one which was used
by any of the accused in the incident. In the evidence that
has emerged on record, the complainant has stated that he
and Amarshibhai Punjabhai Jadhav and Pratapbhai
Ranmalbhai Parmar were taken to the hospital at Adri
village for treatment and from there they were taken to
Veraval Government Hospital but no treatment papers of
Adri Hospital have been produced on record. In the medical
papers of Veraval Government Hospital and Sanjeevani
Hospital, the complainant and both the eyewitnesses have
not named the persons who had assaulted them and they
have merely stated that they were assaulted by two people
who had their faces covered. There is no iota of evidence
that the accused were the same persons as the Test
Identification Parade has not been conducted by the
Investigating Officer during investigation and there are
major discrepancies in the medical certificates of both the
Government Hospital, Veraval and Sanjeevani Hospital.
There are major contradictions in the depositions of the
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witnesses which are fatal to the case of the prosecution and
the learned Trial Court has discussed the entire evidence in
detail.
10. In view of the settled position of law in the decisions of
Chandrappa (supra), 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 present appeal is devoid of merits and
resultantly, the same is dismissed.
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11. The impugned judgement and order of acquittal
passed by the learned 3rd Additional Sessions Judge,
Veraval in Sessions Case No. 28/2008 on 28.02.2011, is
hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
