[Cites 10, Cited by 0]

Gujarat High Court

State Of Gujarat vs Vipul Kanaiyalal Shah Vaniya on 10 December, 2025

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                            R/CR.A/1991/2010                                          JUDGMENT DATED: 10/12/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 1991 of 2010


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                       ==========================================================

                                    Approved for Reporting                           Yes           No

                       ==========================================================
                                                        STATE OF GUJARAT
                                                              Versus
                                               VIPUL KANAIYALAL SHAH VANIYA & ORS.
                       ==========================================================
                       Appearance:
                       MS SHRUTI PATHAK, APP for the Appellant - State
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                            Date : 10/12/2025

                                                         ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 28.07.2010 passed by

the learned Additional Sessions Judge, Jamnagar, in Sessions

Case No.121 of 2009 for the offences punishable under

Sections 399 and 402 of the Indian Penal Code, the appellant

- State of Gujarat has preferred this appeal under Section

378 of the Code of Criminal Procedure, 1973 (for short, "the

Code").

2. The prosecution case as unfolded during the trial

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before the lower Court is that the complainant - Mr.G.V.

Dulera, who was performing his duties as a Police Sub

Inspector at Jamnagar City 'A' Division Police Station,

Jamnagar, has received a secret information that some

persons by possessing deadly weapons like sword, knife,

Ganeshiyo, screwdriver and iron plier ('pakkad') have gathered at Udyognagar, Digvijay Plot, Sheri No.58, B/h. G.T.

Industries, Jamnagar with clear intention to commit an

offence of robbery and therefore, on he basis of said

information, raid was carried out and during raid on

17.08.2009 at about 01:00 hour, present respondents who are

involved in commission of offences were found in suspicious

movement at the place of offence with their respective

weapons like sword, knife, Ganeshiyo, screwdriver and iron

plier ('pakkad'), etc., in auto-rickshaw bearing No.GTP-565. Therefore, the complaint was lodged against the respondent/s-

accused.

3. After investigation, sufficient prima facie evidence

was found against the accused person/s and therefore charge-

sheet was filed in the competent criminal Court. 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

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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 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

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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. Though served, none appears on behalf of the

respondent/s.

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.

8.1 The panch witnesses, who have been examined

vide Exh.14 - Noormamad Osman as P.W.1 and vide Exh.16

- Dilipbhai Bhimjibhai Chavda as P.W.2, have turned hostile

and have not supported the case of the prosecution.

8.2 The officer of the surveillance squad -

Rajendrasinh Hemantsinh Zala, P.W.3, who has been

examined vide Exh.18, has stated that he was present as a

member of the surveillance squad. The said witness has not

been able to give any proof that he was with the patrolling

team. The police officer - Lalubha Shivubha Jadeja, who has

been examined as P.W.4, vide Exh.19, has stated that he

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received a clue/tip of the offence and thereafter, taking

cognisance of the said clue/tip, he informed the same to

Gordhanbhai Becharbhai Dulera, P.S.I. - the Complainant,

who has been examined as P.W.5, vide Exh.21 and he was

present with the police team. In his deposition, it has come

on record that no patrol book has been produced by the said

witness.

8.3 The only independent witness that the prosecution

has examined is Mansukhbhai Jagjivan Parmar, who has

been examined as P.W.6, vide Exh.23. He has not supported

the case of the prosecution and has turned hostile.

8.4 The police officer, who has maintained the station

diary, viz., Jivrajbhai Laxmanbhai Mavla has been examined

as P.W.7, at Exh.28 and the police officer viz., Sardarsinh Hanubha Zala has been examined as P.W.8, vide Exh.30.

Vide Exh.31, Ganeshbhai Kanjibhai Shanja, who is

the Investigating Officer, has been examined as P.W.9 and

from his deposition, though mobile phones have been

recovered from the accused, no call details have been

investigated by the prosecution.

P.W.3 - Rajendrasinh Hematsinh Zala has stated

that he was in a surveillance squad, but, in the cross-

examination, he has stated that he has not produced any

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evidence to show that he was a member of the patrolling

team.

Lalubha Shivubha Jadeja, ASI, who has been

examined as P.W.4 has also failed to prove the fact that he

was a member of the patrolling team.

8.5 In the investigation report, it has not been proved

that the weapon - 'Ganeshiyo' was recovered from the accused

- Vipul. The fact also remains that the police has neither

recovered the rickshaw which was used at the time of offence

nor are any RTO details recovered by the investigating

agency. The investigating agency has also not examined any

independent witnesses. The fact, that the prosecution had

received a clue/tip and were patrolling, has also not been

proved by the prosecution. The prosecution has also not

proved the vehicle number on which they were patrolling. The prosecution has also not proved the fact that they were

patrolling in view of the fact that the prosecution has not

produced any patrolling book to prove the said fact. The fact

also remains that there are no independent witnesses

examined by the prosecution.

9. 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

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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, I am of the considered opinion that the

Court below was completely justified in passing impugned

judgment and order.

10. 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.

11. 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:

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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."

12. 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.

13. 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 Court with regard to the credibility of the

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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."

14. 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.

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15. In the case of Chandrappa v. State of Karnataka,

reported 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 appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own

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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. 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.

17. In view of above facts and circumstances of the

case, on my careful re-appreciation of the entire evidence, I

found that there is no infirmity or irregularity in the

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findings of fact recorded by learned trial Court and under