Gujarat High Court
State Of Gujarat vs Kiritbhai Zavrabhai Kishori on 2 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/1993/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1993 of 2004
With
R/CRIMINAL APPEAL NO. 1995 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KIRITBHAI ZAVRABHAI KISHORI & ORS.
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Appearance:
MR NIRAJ SHARMA, APP for the Appellant(s) No. 1
MR RISHIN R. PATEL for HL PATEL ADVOCATES(2034) for the
Opponent(s)/Respondent(s) No. 1,2,3
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. It is reported that Respondent No.4 in Criminal
Appeal No.1993 of 2004 has expired hence, appeal qua
him stands abated.
2. The State has preferred this appeal under the
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provisions of Section 378(1)(3) of the Code of Criminal
Procedure, 1973 against the Judgment and order of
Acquittal passed by the learned Additional Sessions
Judge (Fast Track Court No.5), Godhra in Sessions Case
No. 372 of 2003 and Sessions Case No. 52 of 2004
whereby vide Judgment and Order dated 09.08.2004, the
learned trial Judge acquitted the present respondents in
both these appeals for the alleged offences punishable
under Sections 147, 148, 149, 332, 336, 337, 435, 436,
427 and 395 of the Indian Penal Code.
3. Brief facts shorn of unnecessary details as it reveals
from the documents are that on 27.02.2002 when the
Kar-Sevaks were returning from Ayodhya, they were
intercepted from Godhra Railway Station by some
miscreants and many Kar-Sevaks were burnt alive while
they had boarded Sabarmati Express, when it reached
near Godhra Railway Station. On the next day of the
said carnage, an appeal was made by V.H.P. to observe
'Bandh' in the entire State of Gujarat, pursuant to which
police personals were deployed by Fatepura Police Station
to look after the situation of law and order. It was
reported to Fatepura Police Station that the situation in
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Sukhsar village was tensed and after receiving such
telephonic message, police force rushed with the help of
the executive Magistrate at about 17.30 hours, when it
was found that a crowd of almost 200 to 300 persons
which arrived from Motanatva village was on rampage
and had torched one tractor and houses of Kalu Satar
and Rajak Gani along with some shops. The mob was
also pelting stones and in order to take control of the
situation, Assistant Sub Inspector Javsing ordered to
open fire pursuant to which the State Railway Police
Personals opened fire to disburse the mob and after such
firing the mob was disbursed however at about 18:30
hours, one Javrabhai, a B.J.P. worker, came to Sukhsar
Outpost along with three persons in a rickshaw who had
sustained injury and was informed that because of the
firing of the police personals, these three persons were
injured despite of the fact that they were not involved in
rioting. These three persons were Ravjibhai Jaliyabhai,
Vikrambhai Tejabhai and Kamjibhai Premabhai. It
transpires from the record that again a message was
received by the police that the mob had gone on rioting
and therefore the police again rushed to the spot and at
that time, accused Kiritbhai Zavrabhai was also involved
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in throwing stones along with the mob. A stone hit
A.S.I. Javsingbhai and was hence required to be taken to
the hospital for treatment. Since the situation was
deteriorating, tear gas cells were lobbed and the Head
Constable Jivarambhai also ordered firing. Thereafter
again after sunset, the mob attacked the property of
Rameshbhai Nathabhai and Sunilbhai Devdhabhai. Again
the police had to restore to lobbing of the tear gas cells
and thereafter followed by firing. It is also the case of
the prosecution that public property to the tune of Rs.
4,00,000/- came to be destroyed and a complaint came to
be registered by P.S.I., Mr. K. R. Parmar in respect to
the alleged offences as stated herein above. After
thorough investigation, at the first instance, charge-sheet
came to be submitted against four persons on 18.09.2003
whereas supplementary charge-sheet against the rest of
the two accused came to be submitted on 28.01.2004.
4. It appears from the record that after submitting the
charge-sheet before the territorial Magistrate, the same
came to be registered as Criminal Case No. 750 of 2003
and Criminal Case No.110 of 2004. The learned
Magistrate having found both the cases as Sessions
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Triable committed before the same Trial Court which
came to be numbered as Sessions Case No.372 of 2003
and Sessions Case No.52 of 2004.
5. Vide Exh.-5, charges were framed against the
accused in Sessions Case No. 372 of 2003 and plea came
to be recorded vide Exh.-6 wherein the accused denied
the allegations and prayed for trial whereas in Sessions
Case No. 52 of 2004 charges were framed against the
accused vide Exh.-2. Since both the cases arise from the
same incident and FIR, they came to be tried together.
6. Prosecution to bring home the charges examined six
police witnesses including the complainant and relied
upon one documentary evidence namely panchnama of
scene of offence. After recording of evidence, statement
under section 313 of Cr.P.C. came to be recorded and
after hearing both the learned advocates for the
respective parties, passed the impugned judgment
acquitting the accused. Hence, the present appeal.
7. Learned APP, Mr. Niraj Sharma for the State in
both these appeals has taken this Court through the oral
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as well as documentary evidence on record and has
argued that the trial Court has committed serious error
in not believing the case of the prosecution, more
particularly, when the present accused persons have been
identified before the Court who were hurling stones and
were present on the day of the alleged incident in the
crowd and there are no reasons to disbelieve the police
witnesses and has thus argued to allow the present
appeal.
8. Mr. Rishin Patel, learned advocate has vehemently
objected to the present appeal and has argued that the
judgment and order of acquittal passed by the learned
Sessions Judge is justified, more particularly, when there
is no evidence on record to link the present accused with
the alleged offence, more particularly, when prosecution
has failed to prove its case beyond reasonable doubt. It
is further argued that despite of the three accused who
were present at the outpost were also not arrested. It is
further argued that though the witnesses were readily
available, the statement were taken after a considerable
period of time which creates serious doubt in the case of
the prosecution and has argued that the accused has
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been wrongly robbed in the present crime to justify the
firing by the police on the date of the alleged incident
and has thus argued to reject the present appeal.
9. Heard learned APP, Mr. Niraj Sharma for the State
and learned advocate Mr. Rishin Patel for the
respondents. Also perused the documentary as well as
oral evidence on record. We also had given our
considered thought over the impugned judgment.
10. It is required to be noted that in the complaint at
Exh.-21 dated 28.02.2002, name of three accused have
been given. However, it is also required to be noted as
to how the names of this three accused came to be
known by the concerned complainant is not coming on
record. More particularly, in view of the fact that it is
not coming on record that the accused were known to
the complainant.
11. It is an admitted fact that there is no test
identification parade carried out in the present case read
with the complaint at Exh.-21, three accused have been
named in such FIR. Under such circumstances, when the
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accused have been identified for the first time before the
Court, it creates a serious doubt with regards to the
involvement of the present accused in the alleged crime.
It also transpires from the record that Ravjibhai
Jaliyabhai, Vikrambhai Tejabhai and Kamjibhai
Premabhai, the three accused persons were brought at
the Sukhsar outpost by one Javrabhai, a B.J.P. worker
which has been clearly admitted by the witnesses also to
the effect that it were informed that these three persons
not involved in the rioting were injured in the police
firing. Despite these facts, none of the accused were
arrested for a considerable period of time which has also
been noted by the learned Sessions Judge while
acquitting the accused. It is also required to be noted
that from the FIR itself it is clear that the incident has
taken place in three parts, however, none of the
witnesses who have deposed before the Court have
indicated clearly as to what role was played by which
accused at which place of incidence and under such
circumstances, when two views are possible, the view
which favours the accused, ought to have been adopted,
which has been correctly adopted by the learned Sessions
Judge and under such circumstances, we are not inclined
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to disturb the said findings in the acquittal appeal.
12. In the case of Constable 907 Surendra Singh &
Anr. v. State of Uttarakhand reported in [2025]2 S.C.R.
239 : 2025 INSC 114 it is held that:
"40. Further, in H.D. Sundara v. State of Karnataka
[H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581:
(2023) 3 SCC (Cri) 748] this Court summarised the
principles governing the exercise of appellate jurisdiction
while dealing with an appeal against acquittal under
Section 378 CrPC as follows : (SCC p. 584, para 8)
"8. ... 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 reappreciating 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
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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."
41. Thus, it is beyond the pale of doubt that the scope
of interference by an appellate court for reversing the
judgment of acquittal recorded by the trial court in
favour of the accused has to be exercised within the
four corners of the following principles:
41.1. That the judgment of acquittal suffers from
patent perversity;
41.2. That the same is based on a misreading
/omission to consider material evidence on record;
and
41.3. That no two reasonable views are possible and
only the view consistent with the guilt of the
accused is possible from the evidence available on
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record."
We find no perversity nor there is misreading or omission to
consider material evidence on record coupled with the fact
that when two views are possible the view in favour of the
accused should be adopted and hence when in the present
case as noted herein above when two views are possible we
are not inclined to entertain this appeal. It is also a settled
legal position that in acquittal appeals, the appellate Court is
not required to rewrite 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, AIR 1981, SC 1417, wherein it is held as under:
".....This Court has observed in Girija Nandini Devi V.
Bigendra Nandini Choudhary (1967) 1 SCR 93 (AIR 1967
SC 1124) that it is not the duty of the Appellate 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."
Under the circumstances we are in agreement with the
reasons given by the Trial Court.
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13. Hence, the present appeal stands rejected. The
judgment and order passed by the learned Sessions
Judge in Sessions Case No. 372 of 2003 and Sessions
Case No.52 of 2004 vide judgment and order dated
09.08.2004 stands confirmed. Record and Proceedings to
be sent back to the concerned trial Court. Bail bonds of
the accused stands canceled.
(GITA GOPI,J)
(P. M. RAVAL, J)
MAYA
