[Cites 14, Cited by 0]
Gujarat High Court
State Of Gujarat vs Mukesh Himmatlal Rathod on 1 December, 2025
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2444 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
==========================================================
Approved for Reporting Yes No
✔
==========================================================
STATE OF GUJARAT
Versus
MUKESH HIMMATLAL RATHOD & ORS.
==========================================================
Appearance:
MR YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3,4
MR NISHITH P THAKKAR(2836) for the Opponent(s)/Respondent(s) No. 1,2
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 5
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/12/2025
ORAL JUDGMENT
1.1 This appeal is filed by the appellant - State under Section
378(1)(3) of the Criminal procedure Code, 1973 (the Code), against
the judgment and order dated 07.09.2009, passed by the Additional
Sessions Judge, Court no.15, Ahmedabad in Sessions Case No.45 of
2007, acquitting the respondents - original accused for the offence
punishable under Sections 399, 401, 402 of the Indian Penal Code,
1860 (IPC), Section 135(1) of the Bombay Police Act.
1.2 The Coordinate Bench of this Court by an order dated
05.07.2025 has passed order that in view of the fact that respondent
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
no.4 has expired, the appeal abates against respondent no.4,
moreover, it has also come on record that respondent nos.3 and 5
have also expired and therefore the present appeal proceeded against
respondent nos.1 and 2 in view of the order passed by the Coordinate
Bench dated 05.07.2025.
2.1 The brief facts of the prosecution case are that the complainant
P.S.I. Mr.J.M.Bharwad, Striking Force, Sector-2, Ahmedabad while
investigating the offence committed in respect of property, received
secret information from his informant to the effect that one party
would pass through industrial estate, State Bank of India, Bapunagar
with a huge amount and persons of Chhara Gang would loot him
dashing the scooter.
2.2. The informant gave description of these persons of Chhara Gang
and on receiving the information the police along with squad persons
in Government as well as private vehicle kept watch. When the
police reached near bank in private vehicle, informant again called
and police found described persons. Therefore, the complainant
called two panchas and made them understand about the facts, who,
in turn, shown their willingness for being panchas.
2.3. Thereafter, the complainant asked squad persons to catch those
Gang persons. However, the police arrested three persons and other
two accused ran away on scooter, which was without number plate.
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
The police person followed those two accused, but could not and
succeed. Thereafter, in the presence of panchas, the accused were
seized and searched and the inquest panchnama was drawn. The first
accused person disclosed himself as Mukesh Himmatlal Rathod,
who was armed with sharp steel knife, accused no. 2 disclosed
himself as Deepak Arjun Sonkar, who was also having knife kept in
wood cover and the third accused disclosed him as Kapsion Ratilal
Netalkar (Chhara), however, when this accused was searched
nothing could be found. Thereafter, the accused were interrogated
and during the interrogation they disclosed names of other accused
who were to commit loot as per the information.
2.4. On filing of the complaint with Bapunagar Police Station,
offence was registered and statements of accused were recorded.
Further, investigation was handed over to P.I. Mr.Chaudhari. At the
end of the investigation, after being satisfied that there are ample
evidences and material against the accused-respondents, he prepared
charge-sheet and submitted the same on 03.01.2005 before the the
Metropolitan Magistrate, Ahmedabad. The Metropolitan Magistrate,
Ahmedabad as per Section 209 of the Code of Criminal Procedure
committed the case to the Sessions Court as the offence was
exclusively sessions triable and ultimately case was transferred to
the court for its final disposal.
3. After usual investigation, sufficient prima facie evidence was
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
found against the accused person/s and therefore charge-sheet was
filed in the competent criminal Court. Since the offence alleged
against the accused person/s was exclusively triable by the Court of
Sessions, the learned Magistrate committed the case to the Sessions
Court where it came to be registered as Sessions Case No.45 of
2007. The charge was framed against the accused person/s. The
accused pleaded not guilty and came to be tried.
4. In order to bring home the charge, the prosecution has
examined the witnesses and also produced various documentary
evidence before the trial Court, which are described in the impugned
judgment.
5. After hearing both the parties and after analysis of
evidence adduced by the prosecution, the learned trial Judge
acquitted the accused for the offences for which they were charged,
by holding that the prosecution has failed to prove the case beyond
reasonable doubt.
6. Learned APP for the appellant - State has pointed out the facts
of the case and having taken this Court through both, oral and
documentary evidence, recorded before the learned trial Court,
would submit that the learned trial Court has failed to appreciate the
evidence in true sense and perspective; and that the trial Court has
committed error in acquitting the accused. It is submitted that the
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
learned trial Court ought not to have given much emphasis to the
contradictions and/or omissions appearing in the evidence and ought
to have given weightage to the dots that connect the accused with the
offence in question. It is submitted that the learned trial Court has
erroneously come to the conclusion that the prosecution has failed to
prove its case. It is also submitted that the learned Judge ought to
have seen that the evidence produced on record is reliable and
believable and it was proved beyond reasonable doubt that the
accused had committed an offence in question. It is, therefore,
submitted that this Court may allow this appeal by appreciating the
evidence led before the learned trial Court.
7. As against that, learned advocate for the respondent/s would
support the impugned judgment passed by the learned trial Court and
has submitted that the learned trial Court has not committed any
error in acquitting the accused. The trial Court has taken possible
view as the prosecution has failed to prove its case beyond
reasonable doubt. Therefore, it is prayed to dismiss the present
appeal by confirming the impugned judgment and order passed by
the learned trial Court.
8. I have heard the submissions made by the learned advocates
for the respective parties and also gone through the oral and
documentary evidence, independently and dispassionately.
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
9. In the aforesaid background, considering the oral as well as
documentary evidence on record, and considering the impugned
judgment and order of the Trial Court, the following aspects
weighed with by the Court:
9.1. The Trial Court has held that, no independent witness has been
examined. Moreover, the guard who was present at the place of
incident has also not been examined by the prosecution.
9.2. The witness vide Exhibit -13 Mukesh Mangalal Patel has also
not supported the prosecution's Case. The P.W.-Jagubhai Malabhai
Bharwad who has been examined vide Exhibit-28 has also stated
that he had information, though the said incident has happened in an
open place, where there were lot of persons but no independent
witness has been examined by the prosecution.
9.3. In the entire case, a scooter has been used, the alleged scooter
has not been recovered by the prosecution. The prosecution has not
produced any evidence of the alleged scooter and or the fact that the
other accused ran away in a rickshaw.
9.4. Moreover, the other three accused ran away from the incident
and the prosecution has tried to prove their case only by the Police
Witness. The P.W. Shankarbhai Chaudhari and Babubhai Chaudhari
who had completed the further investigation have also not been able
to recover any other evidence with respect to the said incident.
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
10. Further, learned APP is not in a position to show any evidence
to take a contrary view in the matter or that the approach of the
Court below is vitiated by some manifest illegality or that the
decision is perverse or that the Court below has ignored the material
evidence on record. In above view of the matter, we are of the
considered opinion that the Court below was completely justified in
passing impugned judgment and order.
11. Considering the impugned judgment, the trial Court has
recorded that there was no direct evidence connecting the accused
with the incident and there are contradictions in the depositions of
the prosecution witnesses. In absence of the direct evidence, it
cannot be proved that the accused are involved in the offence.
Further, the motive of the accused behind the incident is not
established. The trial Court has rightly considered all the evidence
on record and passed the impugned judgment. The trial Court has
rightly evaluated the facts and the evidence on record.
12. 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 down by the Apex
Court in the case of State of Karnataka Vs. Hemareddy, reported
in AIR 1981 SC 1417 wherein it is held as under:
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
"... 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."
13. Thus, in case the appellate court agrees with the reasons and
the opinion given by the lower court, then the discussion of evidence
at length is not necessary.
14. In the case of Ram Kumar v. State of Haryana, reported in
AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from
order of acquittal to reassess the evidence and reach
its own conclusions under Sections 378 and 379,
Cr.P.C. are as extensive as in any appeal against the
order of conviction. But as a rule of prudence, it is
desirable that the High Court should give proper
weight and consideration to the view of the Trial
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
Court with regard to the credibility of the witness, the
presumption of innocence in favour of the accused,
the right of the accused to the benefit of any doubt
and the slowness of appellate Court in justifying a
finding of fact arrived at by a Judge who had the
advantage of seeing the witness. It is settled law that
if the main grounds on which the lower Court has
based its order acquitting the accused are reasonable
and plausible, and the same cannot entirely and
effectively be dislodged or demolished, the High
Court should not disturb the order of acquittal."
15. As observed by the Hon'ble Supreme Court in the case of
Rajesh Singh & Others vs. State of Uttar Pradesh reported in
(2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar
Khan and Another vs. State of Madhya Pradesh reported in (2011)
6 SCC 394, while dealing with the judgment of acquittal, unless
reasoning by the trial Court is found to be perverse, the acquittal
cannot be upset. It is further observed that High Court's interference
in such appeal in somewhat circumscribed and if the view taken by
the trial Court is possible on the evidence, the High Court should
stay its hands and not interfere in the matter in the belief that if it had
been the trial Court, it might have taken a different view.
16. In the case of Chandrappa v. State of Karnataka, reported
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
in (2007) 4 SCC 415, the Hon'ble Apex Court has observed as
under:
"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,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Criminal Procedure Code, 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 emphasise the reluctance of an
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
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."
17. Considering the aforesaid facts and circumstances of the case
and law laid down by the Hon'ble Supreme Court while considering
the scope of appeal under Section 378 of the Code of Criminal
Procedure, 1973 no case is made out to interfere with the impugned
judgment and order of acquittal.
NEUTRAL CITATION
R/CR.A/2444/2009 JUDGMENT DATED: 01/12/2025
undefined
18. In view of above facts and circumstances of the case, on our
careful re-appreciation of the entire evidence, I found that there is no
infirmity or irregularity in the findings of fact recorded by learned
trial Court and under the circumstances, the learned trial Court has
rightly acquitted the respondents - accused for the elaborate reasons
stated in the impugned judgment and I also endorse the view/finding
of the learned trial Court leading to the acquittal.
19. In view of the above and for the reasons stated above, the
present Criminal Appeal fails to prove its case and the same deserves
to be dismissed and is dismissed, accordingly. Record &
Proceedings be remitted to the concerned trial Court forthwith.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
