Gujarat High Court

State Of Gujarat vs Generelsing Rupsing Tank on 25 August, 2025

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                            R/CR.A/958/2013                                        JUDGMENT DATED: 25/08/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                              R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 958 of 2013

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
                       and
                       HONOURABLE MR.JUSTICE D. M. VYAS

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                                    Approved for Reporting                        Yes           No

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                                                       STATE OF GUJARAT
                                                             Versus
                                                   GENERELSING RUPSING TANK
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                       Appearance:
                       MS KRINA CALLA, APP for the Appellant(s) No. 1
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE CHEEKATI
                               MANAVENDRANATH ROY
                               and
                               HONOURABLE MR.JUSTICE D. M. VYAS

                                                              Date : 25/08/2025

                                             ORAL JUDGMENT

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

1. Challenge in this appeal is to the judgment dated

30/03/2013 in Sessions Case No.7 of 2012 on the file of the

learned 6th (Adhoc) Additional Sessions Judge, Surat whereby

the sole accused in the case was acquitted of the charges

under Sections 395 and 397 of the Indian Penal Code.

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2. Facts of the prosecution case germane to dispose of this

appeal may briefly be stated as follows:

2.1. As per the version of the complainant, Snanabhai Patel,

ASI, Buckle No.1759, Amroli Police Station, Surat City, he is

serving as ASI in Amroli Police Station from 05.11.2008. On

26/03/2009 at 20:00 hours to 27/03/2009 at 8:00 hours, he

was on patrolling with other police persons. During that

time, at about 4:10 a.m., they came to Amroli Police Chowky

for natures call and at that time one Kanubahi Derivala made

a call on phone of Amroli Police Chowky and reported that one

tempo-407 bearing registration no.GJ-16-T-6308 wherein

some persons with weapons entered into the shop of

Dwarkesh Jewelers by breaking shutter of the shop situated

on the ground floor of Shreenath Apartment near Jasmin Park,

Kosad road. That after receiving message, immediately they

rushed to the above place with police staff and saw the tempo

was parked in front of the shop and they have stopped the

jeep and alighted from the jeep and saw five persons coming

with boxes of ornaments in their hands from Dwarkesh

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Jewelers towards the tempo. They tried to prevent them but

those persons have pelted stones on them and thereby the

stones hit at right writs of his hand and they ran away

towards Mansarovar Circle. That they chased them and

informed about the incident on wireless set in police control

room. That they followed the tempo and other police staff

also came and ultimately the tempo was cordoned near traffic

police chowky of Surat Railway Station. That three persons

were arrested and two persons fled away. That the arrested

persons gave their names as well as names of the persons who

fled away. That they brought arrested persons at Amroli

Police Station and called the owner of the Dwarkesh Jewelers

who had informed about the incident of loot of the ornaments.

That, therefore, a complaint is given before Amroli Police

Station on 27/03/2009 which is registered as I-C.R. No.36 of

2009.

2.2. On the basis of the complaint, through investigation was

carried out by the Investigating Officer. Necessary

panchnama was prepared and statements of witnesses were

recorded.

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3. After completion of the investigation, the police filed

charge sheet against the accused for the aforesaid offences

before the court of learned Judicial Magistrate First Class,

Surat which came to be registered as Criminal Case No.1289

of 2011. However, as the case being exclusively sessions

triable, the same was committed before the learned 6th

(Adhoc) Additional Sessions Judge, Surat as per Section 209

of the Code of Criminal Procedure where the case was

registered as Sessions Case No.7 of 2012.

4. The trial court framed charges against the accused for

the offences punishable under Sections 395 and 397 of the

Indian Penal Code. The accused denied the said charges and

claimed to be tried.

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

examined PW-1 to PW-12 witnesses and got marked 16

exhibits to prove its case against the accused.

6. At the end of the trial, after considering the oral and

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documentary evidence on record, the trial court acquitted the

accused of the said charges as it did not find him guilty for the

aforesaid offences. Aggrieved by the impugned judgment, the

State has preferred the present appeal.

7. Assailing the impugned judgment and order of the

acquittal, Ms.Krina Calla, learned APP for the State has

submitted that the learned trial court has failed to appreciate

the oral as well as documentary evidence in true perspective

which are in support of the prosecution case. She has further

submitted that the prosecution is able to prove the charges

leveled against the respondent-accused. She has submitted

that the learned trial court ought to have considered the oral

as well as documentary evidences of the prosecution in true

perspective but has failed to appreciate the same and

recorded the findings which are contrary to the provisions of

law. Learned APP has further submitted that the trial court

has failed to appreciate the prosecution evidences and

impugned judgment is not just, legal and proper and required

to be interfered by this Court and lastly prayed to allow this

appeal and set aside the impugned judgment passed by the

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learned trial court.

8. Before dealing with the contentions of learned APP, it

would be appropriate to analyze the relevant ocular and

documentary evidences of the prosecution witnesses.

9. Prosecution has examined material witness PW-2,

Kanubhai Chhaganbhai Patel vide Exh.23. During the chief

examination, he has stated the facts that the alleged incident

occurred in the year 2009. It is stated that he got up in early

morning at about 3:00 a.m. to 4:00 a.m. and saw from the

window that the shutter of Krishna Jewelers was broken. It is

further stated that he has called the police and the police

came and arrested the persons, those persons seems as of

Shikh community. It is further stated that the accused came

with the tempo and laid looted material in the tempo and ran

away. It is further stated that the TI parade arranged by the

Mamlatdar further stated that he is unable to identify the

accused before the court.

9.1. During the cross examination, he has admitted the facts

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that he has not seen the accused as the accused were run

away. The prosecution has produced the important

documents of panchnama of TI parade vide Exh.26. The

panchnama was drawn on 03/03/2011. Considering this fact

the incident was occurred in the year 2009 and thereafter,

after a long period, TI parade arranged. This fact is required

to be considered as the same not inspired the confidence

about the identification of the respondent-accused.

10. It appears from the material available on record that

there is no discovery or recovery from the respondent

accused. The alleged offence occurred on 27/03/2009 and

present resondent-accused was arrested on 02/03/2011.

11. Considering the ocular evidence of the police witness, it

clearly reveals that three arrested accused have given the

names of other two accused persons wherein there is no name

of the present accused.

12. Therefore, considering the evidence on record and the

facts and circumstances of the case and subsequent events

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and on appreciation of the same, the trial court has rightly

recorded a finding that the accused is not found guilty for the

said charges levelled against him and accordingly acquitted

him. After considering the said evidence on record, we are

also of the considered view that no case of Section 395 and

397 is made out from the facts and circumstances of the case.

Hence, impugned judgment warrants no interference of this

Court in this appeal.

13. 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

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

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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."

13.1. 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 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

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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."

13.2. 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.

13.3. 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

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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."

13.4. 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

exercise against an order of acquittal, are well settled.

13.5. 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 reasoning, 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:

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"... 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."

14. 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

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

Court. We find that the findings recorded by the learned trial

Court are absolutely just and proper and in recording the said

findings, no illegality and infirmity has been committed by it.

We are therefore in complete agreement with the findings and

ultimate conclusion recorded by the learned trial Court and

there is no reasons to interfere with the same.