Gujarat High Court

State Of Gujarat vs Kalabhai Kodarbhai Vankar on 2 August, 2025

Author: A.S. Supehia

Bench: A.S. Supehia

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                            R/CR.A/1479/2004                                       JUDGMENT DATED: 02/08/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1479 of 2004

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       and
                       HONOURABLE MR.JUSTICE D. M. VYAS

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                                    Approved for Reporting                        Yes           No

                       ==========================================================
                                                      STATE OF GUJARAT
                                                            Versus
                                               KALABHAI KODARBHAI VANKAR & ORS.
                       ==========================================================
                       Appearance:
                       MS MAITHILI MEHTA, APP for the Appellant(s) No. 1
                       MR JV JAPEE(358) for the Opponent(s)/Respondent(s) No. 1,2,3,5,6
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                                and
                                HONOURABLE MR.JUSTICE D. M. VYAS

                                                              Date : 02/08/2025

                                            ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE D. M. VYAS)

1. Assailing the judgment dated 20/05/2004 of the learned

Additional Sessions Judge, First Track Court No.4,

Sabarkantha-Himmatnagar passed in Sessions Case No. 105

of 2003 on the file of the said court whereby respondent nos.1

to 8 who are accused nos.1 to 8 in the said case (hereinafter

referred to as A-1 to A-8) were acquitted for the charges

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levelled against them, the instant appeal has been preferred

by the State.

2. Facts of the prosecution case, in brief, are as follows:

2.1. On 03/03/2002, there was a meeting of Peace Committee

in the office of Sub-Divisional Magistrate of Himmatnagar and

it was informed by Mahmmedyusuf Haji Abdulrasulbhai

Mutvalli of Himmatnagar that he has received phone call from

his watchman Nanuram Fanat that his factory is set on fire

and mob is looting factory premises. On receipt of such

information, ASI Dalpatsinh Gobarsinh and other police

officers went to the scene of offence and noticed that mob of

approximately 200 persons were rioting and looting the

factory premises. The mob was directed to disperse but still it

did not, therefore, one round was fired from service revolver

and thereafter mob was dispersed and from that mob, accused

no.1 and accused no2 were caught. Thereafter, complaint was

filed against the aforesaid two accused as well as about 200

persons for the offences punishable under Sections 395, 436,

147, 149 of the Indian Penal Code and Section 135 of the

Bombay Police Act.

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3. After completion of the investigation, the police has filed

charge-sheet against the accused for the aforesaid offences

and the case was committed to the concerned Judicial

Magistrate First Class, Himmatnagar.

4. As the case was exclusively triable by the sessions

division, the case was committed to the Sessions Court,

Sabarkantha and thereafter it was transferred to the court of

learned Additional Sessions Judge, First Track Court No.4,

Sabarkantha-Himmatnagar. The trial court has framed

charges for the offences punishable under Sections 395, 436,

147, 149 of the Indian Penal Code and Section 135 of the

Bombay Police Act against the accused. The accused denied

commission of any such offences and claimed to be tried.

5. During the course of the trial, the prosecution got

examined PW-1 to PW-6 witnesses and got marked five

exhibits to substantiate its case against the accused.

6. At the culmination of the trial, after considering the both

oral and documentary evidence on record, as the accused

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found not guilty for any of the aforesaid charges levelled

again them, acquitted the accused for the aforesaid charges

by impugned judgment.

7. Aggrieved thereby, the State has preferred the present

appeal against the said judgment of acquittal.

8. We have heard learned Additional Public Prosecutor

Ms.Maithili Mehta at length for the State and also perused the

record and proceedings and considered the evidence on

record.

9. Learned APP for the appellant-State submitted that the

learned Sessions Judge has committed grave error in

appreciating the facts of the case as well as the provisions of

law while acquitting the accused persons. Learned APP

further submitted that the learned Sessions Judge has erred in

appreciating the prosecution witnesses. Learned APP has

further submitted that the judgment and order of acquittal is

contrary to law and evidence on record and therefore

deserves to be quashed and set aside and lastly prayed to

allow this appeal.

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10. Before dealing with the rival contentions of the parties,

it would be appropriate to analyze the relevant ocular and

documentary evidences of the prosecution witnesses.

11. The prosecution has examined star witness PW-1

Manuram Dhulaji Fanat vide Exh.25. As per the prosecution

case PW-1 Manuram Dhulaji Fanat is eye witness of the

alleged incident. He has stated the facts that he was

watchman in Sabar Agro Industries, GIDC, Motipura. On

03/03/2002, he was in the factory and in the evening there

came the mob of people with the weapons and set the fire in

the factory and caused damages of about 35/- lakhs to Rs.40/-

lakhs. He has further stated that he informed about the same

to the owner of the factory. He has not seen who set the fire.

The prosecution witness has not supported the prosecution

case and thereafter cross examined by the learned APP.

During the cross examination also he has not supported the

prosecution case. Defense side cross examined the important

witness and during the cross examination he has admitted the

fact that he does not know who caused the damage and set

the fire in the factory. Considering the ocular evidence of the

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material witness, it appears that he has not supported the

prosecution case and turned hostile.

12. The prosecution has examined PW-5, Mahmmedyusuf

Haji Abdulrasulbhai Mutvalli vide Exh.31. He is the owner of

the factory. He has supported the case of the prosecution. It

is stated by him that at the time of the incident, he is in the

house and he informed on telephone Deputy Superintendent

of Police, Collector and Mamlatdar. It is further stated by him

that the watchman Nanuram talked with him on telephone

and stated the facts of the incident. Considering the ocular

evidence of the said witness, it appears that he is not eye

witness of the incident.

13. The prosecution has examined PW-6, the Investigation

Officer-Himmatsinh Parbatsinh Chavda vide Exh,.32. He has

stated the facts of the incident. He has further stated that he

has given the complaint against the mob and registered the

offences and also produced the complaint vide Exh.33. He

has further stated the facts of the firing from his service

revolver. He has further stated the facts of the investigation

and the charge-sheet filed against the accused. During the

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cross examination, he has admitted the fact that there was no

TI parade conducted for identification of the accused. He has

also admitted the fact that there was no recovery or discovery

during the investigation.

14. Considering the facts and circumstances of the

prosecution case and re-appreciating the ocular as well as

documentary evidence, the prosecution has miserably failed to

establish the alleged role of A-1 to A-8. There was no TI

parade of the accused. No recovery or discovery of any

muddamal during the investigation from the accused. There

is no direct or corroborative evidence to connect the accused

in the alleged offence.

15. The learned trial court deeply appreciated the

prosecution evidence and recorded the findings of the

acquittal which is just and proper and not required to be

interfered in this appeal.

16. At the outset, it is required to be noted that the

principles which would govern and regulate the hearing of

appeal by this Court against an order of acquittal passed by

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the trial Court, have been very succinctly explained by the

Apex Court in a catena of decisions. In the case of M.S.

Narayana Menon @ Mani Vs. State of Kerala & Anr.,

(2006) 6 S.C.C. 39, the Apex Court has narrated the powers

of High Court in appeal against the order of acquittal. In

Paragraph-54 of the said decision, the Apex Court has

observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

16.1. Further, in the case of Chandrappa Vs. State of

Karnataka, (2007) 4 S.C.C. 415, the Apex Court has laid

down the following principle;

"42. From the above decisions, in our considered view, 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, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no

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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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

16.2. Thus, it is a settled principle that while exercising

appellate power, even 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.

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16.3. In the case of State of Goa V. Sanjay Thakran & Anr.,

(2007) 3 S.C.C. 75, the Apex Court reiterated the powers of

the High Court in such cases. In Paragraph-16 of the said

decision, the Court observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

16.4. Similar principle has been laid down by the Apex Court

in the cases of State of Uttar Pradesh Vs. Ram Veer Singh

& Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad

(Dead) by LRs Vs. State of MP reported in 2007 A.I.R.

S.C.W. 5589. Thus, the powers, which this Court may

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exercise against an order of acquittal, are well settled.

16.5. It is also a settled legal position that in acquittal appeal,

the appellate Court is not required to re-write the judgment or

to give fresh reasonings, when the reasons assigned by the

Court below are found to be just and proper. Such principle is

laid down by the Apex Court in the case of State of

Karnataka Vs. Hemareddy reported in AIR 1981 S.C.

1417, wherein, it is held as under:

"... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

16.6. Thus, in case the appellate Court agrees with the

reasons and the opinion given by the lower Court, then the

discussion of evidence is not necessary.

17. Considering the impugned judgment and order of the

learned trial Court and the aforesaid reasoning and bearing in

mind the statutory provisions, as well as the judgments of the

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Hon'ble Apex Court, this Court is of the considered opinion

that the present appeal does not warrant any interference in

the impugned judgment and order passed by the learned trial