Gujarat High Court

State Of Gujarat vs Sobatbhai Khimabhai on 2 August, 2025

Author: Gita Gopi

Bench: Gita Gopi

                                                                                                                  NEUTRAL CITATION




                           R/CR.A/1981/2004                                      JUDGMENT DATED: 02/08/2025

                                                                                                                  undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 1981 of 2004


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE GITA GOPI

                      and
                      HONOURABLE MR.JUSTICE P. M. RAVAL

                      ==========================================================

                                   Approved for Reporting                       Yes           No
                                                                                               √
                      ==========================================================
                                                       STATE OF GUJARAT
                                                             Versus
                                                      SOBATBHAI KHIMABHAI
                      ==========================================================
                      Appearance:
                      MR ROHAN RAVAL APP for the Appellant(s) No. 1
                      NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                              and
                              HONOURABLE MR.JUSTICE P. M. RAVAL

                                                    Date : 02/08/2025
                                                    ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The present appeal filed by the State under

Section 378(1)(3) of the Criminal Procedure Code,

1973 (for short 'Cr.P.C.') challenges the

judgment and order of acquittal dated 30.09.2004

passed by the learned Additional Sessions Judge,

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

2nd Fast Track Court, Dhrangadhra in Sessions Case

No.31 of 1999.

2. The facts of the case, as has been referred,

briefly can be stated that on 14.04.1999, a

complaint was registered before Haldvad Police

Station for the offence under Sections 395, 397,

452 and 114 of the Indian Penal Code, 1860

(hereinafter referred to as 'IPC' for short) as

well as Section 135 of Bombay Police Act (for

short, 'B.P. Act') vide C.R. No.51/99, stating

the fact that some accused persons have assaulted

the staff members of petrol pump with deadly

weapons and thereby, committed robbery of cash of

Rs.12,806/- of patrol pump, situated on Highway

at about 11.00 p.m.

3. Learned APP Mr. Rohan Raval, has referred to

the charge framed by the Trial Court against ten

of the accused, stating that on the referred time

and place, the accused had joined together and

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

committed dacoity and robbery with sticks as

deadly weapons, had caused grievous hurt to three

of the persons. APP Mr. Raval further stated that

there was breach of notification under Section

135 of the B.P. Act.

3.1 Learned APP Mr. Raval has stressed upon the

evidence of witnesses stating that the

complainant had identified the accused. The panch

also has supported the place of incident. Mr.

Raval stated that witness (PW3) was present at

the petrol pump and has stated that the

complainant has identified the accused. The

Chowkidar-Maganbhai (PW4) has supported the

prosecution case, stating about the robbery, and

further stated about the evidence of owner of the

petrol pump (PW5). Mr. Raval stated that though,

the owner was not present there, but after

hearing about the incident, had come with loaded

pistol and had seen the last man running away

from the place. Mr. Raval stated that, arrest

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

panchnama of Shobatsinh Khimabhai Bariya (Exh.24)

verifies the fact of incident, which had taken

place.

3.2 Learned APP further stated that P.W.8 -

Rameshbhai Raval being police constable had

identified the accused. He had given the

deposition with specific identification of the

accused being found in the morning at about

10.00, as 'Chaddi-Banyandhari' and 'Lungiwala'

near Kalpana Hotel and when they were asked to

stop, they ran away, and there was firing in the

air, and during that period, Sobatsinh Khimabhai

Bariya was arrested.

3.3 Learned APP Mr. Raval further stated that

Satish Chhotubhai Patel (PW9), the Executive

Magistrate, has given the deposition of the

procedure undertaken by him for identification

and with supporting evidence of the Executive

Magistrate, the deposition proved that the

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

accused were identified.

3.4 Learned APP has placed reliance on the

injured victim - Bharatbhai, who could identify

the person, who had given him blow. Mr. Raval

thus, stated that the fracture injury sustained

by Bharatbhai could be proved by medical

evidence. Mr. Raval further placed reliance on

the deposition of PW13 - Takhatsinh Thakor, who

has given the evidence regarding the panchnama

and the fact of recording of statements of the

witnesses.

3.5 Learned APP Mr. Raval further submitted that

PW14 - Doctor Rampyare Prasad Verma had medically

examined the injured and the evidence of the

doctor corroborates the fact that three of the

persons had sustained injury during the incident.

4. Perusal of judgment of the learned Trial

Court Judge, shows that the learned Judge has

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

appreciated the incident of 14.04.1999 on 11.00

at night on Haldvad Highway Road at Gokulesh

Petrol Pump. The employees were present at the

petrol pump and there was loot of cash of

Rs.12,806/-. The learned Judge has observed that

the complaint was registered at Haldvad Police

Station as I-C.R. No.51/99. Thereafter, the

investigation was undertaken and panchnama was

drawn recording the statements of the witnesses.

4.1 The accused - Shobatsinh Khimabhai was

arrested on 15.04.1999 between 10.30 to 11.00 by

Dhrangadhra Police under Section 41(1) of the

Cr.P.C. and the Investigating Officer thereafter,

took the evidence of F.S.L. Officer, who had

visited the place and also the Mamlatdar of

Halvad. The learned Judge on appreciation of the

evidence noted that on the next day of the

incident at Highway by-pass, near Dhrangadhra at

Kalpana Hotel, the police had found five of the

accused running away from the place and on

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

physical examination of the accused only Rs.360/-

cash was found. One of the accused was arrested,

while rest of the four had run away from the

place.

4.2 Before Mamlatdar Halvad, the identification

was carried out and two of the witnesses i.e.

complainant-Jaysinhbhai and injured-Bhartbhai

were present before the Mamlatdar. The

depositions of three of the witnesses do not

bring consistency for identification of the

accused. Only one of the accused, who was stated

to be found in front of group, was stated to be

identified. Otherwise, witnesses Maganbhai and

Bharatbhai could not identify the accused.

Therefore, the learned Judge did not find it safe

to rely on the depositions of the witnesses, who

could not identify the accused observing, that

the statement could have no value, when there

were presence of fifteen to twenty persons at

that time.

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

4.3 The learned Judge observed that the

complainant Jaysinhbhai though had identified,

however, in the complaint at Exh.18, he had not

stated of having seen the persons, who had come

for robbery. Thus, the learned Judge did not find

the corroboration from the complaint and found it

that the statement was coming for the first time

in the Court and hence, in absence of the

corroboration did not find it fit to rely on the

identification parade.

4.4 The learned Judge also observed that the

injured witness Bharatbhai too could not identify

the accused. Even during the identification

parade and relying upon the statement of police

Rameshbhai, who has deposed that on 15.04.1999 in

the morning he received a telephone message about

'Chaddi-Baniyandhari' at the Kapana Hotel and

thereafter, the accused came to be arrested after

a period of about twelve hours, the learned

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

judge did not find it safe to rely on that

evidence, observing that when the important

witnesses could not identify the accused then,

only evidence of arresting the accused, would

bear no significance to join the accused with the

offence. The learned Judge, thus, did not find

any cause to rely on the evidence of any of the

witnesses and observed that the prosecution has

failed to prove the case beyond reasonable doubt.

5. The judgment of Chandrappa v. State of

Karnataka (2007) 4 SCC 415, would be relevant to

be mentioned since the judgment lays down the

general principles for the consideration of the

acquittal appeals. The Hon'ble Supreme Court has

held thus:

"The following general principles regarding powers of the 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.

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

(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 innocence is 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 and one favourable to the accused has been taken by the

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

trial court, it ought not to be disturbed by the appellate court.

5.1 In the case of H.D. Sundara v. State of

Karnataka, [(2023) 9 SCC 581], the Hon'ble

Supreme Court has held as under:

"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment [State of Karnataka v. H.K. Mariyappa, 2010 SCC OnLine Kar 5591] rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short "CrPC"). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarised as follows:

8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after re-

appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the

NEUTRAL CITATION

R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025

undefined

appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

6. We, on perusal of the deposition as well as

the charge and the observation of the learned

Trial Court Judge, are of the consistent view

that the conclusion reached by the learned Judge

on appreciation of evidence is reliable and there

is nothing to consider as being patently illegal

or that the conclusion arrived at is on the basis

of any untenable evidence.

7. We do not find merits in the appeal, hence,

the present appeal stands dismissed. The impugned

judgment and order of acquittal dated 30.09.2004

passed by the learned Additional Sessions Judge,