Gujarat High Court
State Of Gujarat vs Vinesh @ Vinu Tejabhai Desai on 20 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2064 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
VINESH @ VINU TEJABHAI DESAI & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
ADVOCATE NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 4
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 1,3,4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment and the
order dated 08.05.2009 in Sessions Case No.241 of 2007 passed by
the learned Additional Sessions Judge, Court No.17, Ahmedabad
(hereinafter referred to as 'the Trial Court'), whereby, the learned
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Trial Court has acquitted the respondents - accused from the
offences punishable under Sections 399 and 402 of the Indian Penal
Code (hereinafter referred to as 'the IPC') and Section 135(1) of the
Bombay Police Act (hereinafter referred to as 'the B.P. Act'). The
respondents are hereinafter referred to as 'the accused' as they
stood in the rank and file in the original case, for the sake of
convenience, clarity and brevity.
2. The relevant facts leading to filing of the present
appeal are as under:
2.1. The complainant Bhikhaji Nathuji, ASI, Buckle
No.8434, Ellis bridge Police Station, Ahmedabad City received
secret information that the accused had made preparation for
dacoity on a petrol pump and had sharp weapons and chili
powder in their possession and hence, on 04.02.2007 at 15:45 hours
a watch was arranged at Kalgi Cross Roads, near World Business
House and the accused came on motorcycle No.GJ-01-FK-2225 and
one another motorcycle without a number plate. The motorcycles
were halted and the accused were caught red handed. The
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complainant filed the complaint, which was registered at I-
C.R.No.75 of 2007 with Ellis Bridge under Sections 399 and 402 of
the IPC and sections 135 of the B.P.Act.
2.2. After registration of the FIR, the investigation
was carried out by the concerned Investigating Officer and after
having sufficient material against the accused, the chargesheet
came to be filed before the concerned jurisdictional Magistrate. As
the case was exclusively triable by the Court of Sessions therefore,
after completion of process under Section 209 of the Cr.P.C., the
case was committed to the Sessions Court and the same was
registered as Sessions Case No.241 of 2007.
2.3. The accused were duly served with the summons and
the accused appeared before the learned Trial Court and it was
verified whether the copies of all the police papers were provided
to the accused as per the provisions of Section 207 of the Code and
a charge was framed by the learned Trial Court at Exh.3 and the
statements of the accused were recorded at Exhs. 4 to 7
respectively, wherein, the accused denied all the contents of the
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charge and the entire evidence of the prosecution was taken on
record. The prosecution has examined 4 witnesses and has
produced 3 documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.22, the further statement of the accused under Section
313 of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the learned Trial Court, by the
impugned judgment and order, has acquitted the accused for the
offences punishable under Sections 399 and 402 of the IPC and
Section 135(1) of the B.P. Act.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the Trial Court, the appellant -
State has filed the present appeal mainly stating that the impugned
judgment and order passed by the learned Trial Court is contrary
to law, evidence on record and principles of justice and is based on
inferences not warranted by facts of the present case and also on
presumption, not warranted by law. The learned Trial Court has
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erred in seeking direct and indirect evidence produced in this case
connecting the respondents with crime and inspite of the fact, the
learned Trial Court, without appreciating the evidence produced
by the prosecution, arrived at the conclusion that the prosecution
has failed to prove the case beyond reasonable doubt. The learned
Trial Court has not properly appreciated the oral as well as
documentary evidence on record it its true spirit. The learned Trial
Court has also committed an error in arriving at the conclusion
that though the complainant and the prosecution witnesses have
fully supported the case of the prosecution and there are no
material contradictions, the Trial Court has acquitted the accused.
The learned Trial Court has erred in appreciating the fact that even
the panch witnesses have turned hostile and no supporting the
prosecution case, in spite of that when the evidence of the
complainant and other witnesses have support the prosecution
case, then in that case, the learned Trial Court ought not to have
discarded the evidence of the complainant and other witnesses,
more particularly, when the same is reliable, trustworthy and
inspires confidence of the Court. The learned Trial Court has erred
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in appreciating the various authorities in favour of the
respondents and thereby, has committed error in acquitting the
respondents. The impugned judgment and order of acquittal
passed by the Trial Court is illegal, invalid, improper, perverse
and bad in law and the same deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
- State. Though served, the respondent No.2 has not appeared
either in person or through an advocate. The respondent Nos.1, 3
and 4 are unserved though bailable warrant has been issued.
Perused the impugned judgment and order of acquittal and have
re-appreciated the entire evidence of the prosecution on record of
the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State
has taken this Court through the entire evidence produced by the
prosecution and has vehemently argued that the Trial Court has
not appreciated the evidence properly and the prosecution has
produced cogent evidence to prove the the case and has
successfully proved the case against the accused but the Trial
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Court has not considered the same and has acquitted the accused.
The judgment and order of acquittal passed by learned Judge is
contrary to law, evidence on record and principles of justice. The
judgment and order of acquittal passed by Judge is based on
inferences, not warranted by facts of the case and also on
presumption, not permitted by law. Learned APP has urged this
Court to quash and set aside the impugned judgment and order of
acquittal and to find the accused guilty for the said offence.
Learned APP has urged this Court to allow the present appeal and
impose maximum sentence on the accused.
6. At the outset, before discussing the facts of the present
case, it would be appropriate to refer to the observations of the
Apex Court in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, the Apex Court has
observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against
acquittal, the power of the Appellate Court is no less than the power
exercised while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be interfered
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with, by an appellate court, where the judgment of the trial court is
based on evidence and the view taken is reasonable and plausible. It
will not reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear in mind
that there is a presumption of innocence in favour of the accused and
the accused is entitled to get the benefit of any doubt. Further if it
decides to interfere, it should assign reasons for differing with the
decision of the trial court". (emphasis supplied)
........ From the above decisions, in our considered view, the following
general principles regarding powers of 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 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 curtail extensive powers of an
appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of
language' to emphasize 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
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.
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(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.
6.1 The Apex Court in yet another recent decision in case
of Sri Dattatraya Vs. Sharanappa arising out of Criminal Appeal
No. 3257 of 2024 (@ SLP (Crl.) No. 13179 of 2023) observed as
under:
31. The instant case pertains to challenge against concurrent
findings of fact favouring the acquittal of the respondent, it
would be cogent to delve into an analysis of the principles
underlining the exercise of power to adjudicate a challenge
against acquittal bolstered by concurrent findings. The
following broad principles can be culled out after a
comprehensive analysis of judicial pronouncements:
i) Criminal jurisprudence emphasises on the fundamental
essence of liberty and presumption of innocence unless
proven guilty. This presumption gets emboldened by
virtue of concurrent findings of acquittal. Therefore, this
court must be extracautious while dealing with a
challenge against acquittal as the said presumption gets
reinforced by virtue of a well-reasoned favourable
outcome. Consequently, the onus on the prosecution
side becomes more burdensome pursuant to the said
double presumption.
ii) In case of concurrent findings of acquittal, this Court
would ordinarily not interfere with such view
considering the principle of liberty enshrined in Article
21 of the Constitution of India 1950, unless perversity is
blatantly forthcoming and there are compelling reasons.
iii) Where two views are possible, then this Court would
not ordinarily interfere and reverse the concurrent
findings of acquittal. However, where the situation is
such that the only conclusion which could be arrived at
from a comprehensive appraisal of evidence, shows that
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there has been a grave miscarriage of justice, then,
notwithstanding such concurrent view, this Court
would not restrict itself to adopt an oppugnant view.
[Vide State of Uttar Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal
are 'perverse' it is to be seen whether there has been
failure of justice. This Court in Babu v. State of Kerala
clarified the ambit of the term 'perversity' as
"if the findings have been arrived at by ignoring
or excluding relevant material or by taking into
consideration irrelevant/admissible material. The
finding may also be said to be perverse if it is
'against the weight of evidence', or if the finding
so outrageously defies logic as to suffer from the
vice of irrationality."
v) In situations of concurrent findings favoring accused,
interference is required where the trial court adopted an
incorrect approach in framing of an issue of fact and the
appellate court whilst affirming the view of the trial
court, lacked in appreciating the evidence produced by
the accused in rebutting a legal presumption. [Vide
Rajesh Jain v. Ajay Singh]
vi) Furthermore, such interference is necessitated to
safeguard interests of justice when the acquittal is based
on some irrelevant grounds or fallacies in re-appreciation
of any fundamental evidentiary material or a manifest
error of law or in cases of non-adherence to the
principles of natural justice or the decision is manifestly
unjust or where an acquittal which is fundamentally
based on an exaggerated adherence to the principle of
granting benefit of doubt to the accused, is liable to be set
aside. Say in cases where the court severed the
connection between accused and criminality committed
by him upon a cursory examination of evidences. [Vide
State of Punjab v. Gurpreet Singh and Others and Rajesh
Prasad v. State of Bihar.]
7. It is a settled principle of law that in an appeal against
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acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the learned Trial
Court, it appears that there are some manifest illegality or
perversity which could not have been possibly arrived at by the
Court. It is also a settled principle that there is no embargo on the
Appellate Court to review the evidence but, generally the order of
acquittal shall not be interfered with as the presumption of
innocence of the accused is further strengthened by the order of
acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in
favour of the accused, should be adopted, and if the learned Trial
Court has taken the view in favour of the accused, the Appellate
Court should not disturb the findings of the acquittal. The
Appellate Court can interfere with the judgment and order of
acquittal only when there are compelling and substantial reasons
and the order is clearly unreasonable and where the Appellate
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Court comes to conclusion that based on the evidence, the
conviction is a must.
8. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Bhikhaji Nathuji Vaghela at Exh.13 and the
witness is the complainant, who has stated that on 04.02.2007, he
was in the surveillance squad and had received secret information
that youngsters were going on pulsar motorcycles with
preparation for dacoity and while they were at Kalgi Cross Roads,
near World Business House, two motorcycles came, out of which,
one motorcycle did not have any registration and the another
motorcycle was with registration No.GJ-01-FK-2225. That the
motorcycle was halted and the persons were checked and the
accused were caught in the presence of the other police personnel
and panch witnesses. The accused had knife and red chili powder
of Ramdev Masala and their mobiles phones and motorcycles were
seized. That the accused had made preparation to commit the
dacoity and he had filed the complaint which is produced at
Exh.15. During the cross-examination by the learned advocate for
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the accused, the witness has stated that he did not make note of
the secret information received at any place and in the secret
information there was no description about any persons regarding
their colour, height, weight etc. That he has information about the
number of petrol pumps in their area and he did not alert the
petrol pump owners after he had received the secret information.
That he had gone from the Chadavad Police Chowki to the World
Business House by a Santro Car but he has not mentioned the
same in the complaint and he had not kept any videographer or
photographer at the place of incident. That he had not taken the
signatures of the panch witnesses on the currency notes and the
muddamal knives and chili powder were not sent to the FSL. That
he did not hear any conversation of the accused and while they
were caught, the accused did not put up any resistance.
8.1. The prosecution has examined PW-2 Jayantibhai
Babubhai Buval at Exh.18 and the witness was working as a head
constable at the Ellis bridge Police Station on the date of incident.
The witness has stated that he was present at the Chhadavad
Police Chowki in the surveillance squad and at that time, Bhikhaji
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Nathuji Vaghela, ASI, had received secret information at around
1:10pm about persons passing by Kalgi Cross Roads and they
went and arrested the accused with two motorcycles, out of which,
one was without a number plate and the another motorcycle had
registration No.GJ-01-FK-2225. The accused were asked their
names and addresses and the same was taken down and the
complaint was filed by Bhikhaji Nathuji Vaghela, ASI. During the
cross-examination by the learned advocate for the accused has
stated that he had gone towards Ambawadi Circle to call the
panch witnesses and he did not ask the panch witnesses as to
whether they were the panch witnesses as any time earlier. That all
the persons, who had gone in the raid, did not have any
government weapon with them and the secret information that
was received was not noted at any place. That when he brought
the panch witnesses and came, the private vehicle was already at
the place.
8.2. The prosecution has examined PW-3 Nizamkhan
Najirkhan Pathan at Exh.20 and the witness is the panch witness
regarding the procedure that was done by the complainant and
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other police personnel. The witness has not supported the case of
the prosecution and he has stated that on 04.02.2007, he was called
by the police to the Ellis Bridge Police Station and asked to affix
his signature and he had affixed his signature on the panchnama
produced at Exh.17. The witness has been declared hostile and has
been cross-examined by the learned APP, but nothing to support
the case of the prosecution has come on record.
8.3. The prosecution has examined PW-4 Mohanbhai
Savabhai Yadav at Exh.21 and the witness is the Investigating
Officer, who has narrated in detail about the procedure
undertaken by him during investigation. During the cross-
examination by the learned advocate for the accused, the witness
has stated that he had perused the documents given to him
minutely and he had found a very serious offence and had taken a
visit of the place of incident but, he had not made a note of the
same at any place. That there are offices near the place of incident
but he has not recorded of any persons from these offices. The
mudammal that has been seized has not been sent to the FSL and
no print outs of the call details of the mobiles of the accused have
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been taken. That the information about the vehicle which did not
have a registration plate was not taken from the RTO and during
investigation, it was found that none of the accused have any
criminal history.
9. On minute appreciation of the entire evidence of the
prosecution, the independent panch witness who as per the case of
the prosecution was called prior to the watch being arranged at
Kalgi Cross Roads, near World Business House has not supported
the case of the prosecution and there is no iota of evidence that any
weapons or chili powder was found the custody of the accused.
Admittedly, the secret information received by the complainant
has not been noted at any place and there was no description of
the colour, height weight or clothes worn by the accused in the
secret information and there is no evidence as to how the
complainant was aware about the accused being the persons who
had made preparation for dacoity. The Investigating Officer has
not recorded the statements of any independent witnesses and the
evidence of the complainant as also PW-2 Jayantibhai Babubhai,
who are both police employees, is not believable as it is not
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corroborated by any independent witnesses. The muddamal that
has been seized has not been sent to the FSL and hence, there is no
evidence that red powder was, in fact, chili powder and was found
from the custody of the accused and that they had in fact made
any preparation for dacoity. The Investigating Officer has not
investigated about the call details of the mobiles.
10. In view of the above, the learned Trial Court has
appreciated the entire evidence in proper perspective and there
does not appear to be any infirmity and illegality in the impugned
judgment and order of acquittal. The learned Trial Court has
appreciated all the evidence and this Court is of the considered
opinion that the learned Trial Court was completely justified in
acquitting the accused of the charges leveled against them. The
findings recorded by the learned Trial Court are absolutely just
and proper and no illegality or infirmity has been committed by
the learned Trial Court and this Court is in complete agreement
with the findings, ultimate conclusion and the resultant order of
acquittal recorded by the learned Trial Court. This Court finds no
reason to interfere with the impugned judgment and order and the
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present appeal is devoid of merits and resultantly, the same is
dismissed.
11. The impugned judgment and order dated 08.05.2009 in
Sessions Case No.241 of 2007 passed by the learned Additional
Sessions Judge, Court No.17, Ahmedabad is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
