Gujarat High Court
State Of Gujarat vs Umar Sulemanbhai Miyana on 9 July, 2025
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R/CR.A/694/2011 JUDGMENT DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 694 of 2011
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
UMAR SULEMANBHAI MIYANA
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Appearance:
MR PRANAV DHAGAT, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/07/2025
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
order passed by the learned 2nd Additional Sessions Judge,
Dhangadhra (hereinafter referred to as 'the learned Appellate
Court') dated 31.11.2011 in Criminal Appeal No.1 of 2010,
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whereby, the learned Appellate Court has quashed and set aside
the judgment and order 08.12.2009 passed by the learned Judicial
Magistrate First Class, Dhangadhra, (hereinafter referred to as 'the
learned Trial Court) in Criminal Case No. 857 of 2005, wherein, the
learned Trial Court was pleased to convict and sentence the
respondent to undergo simple imprisonment of six months and
fine of Rs.500/-, and in default, simple imprisonment of one
month for the offence punishable under Section 142 of the
Bombay Police Act (hereinafter referred to as 'the B.P.Act').
1.1. The respondent is hereinafter referred to as 'the
accused' as he stood 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 Sub Divisional Magistrate, Dhanghdra passed the
order of externment on 03.05.2004 externing the accused from the
limits of Surendranagar for a period of two years in Externment
Case No. 15 of 2004. The respondent violated the order of
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externment and on the day of incident, he was found with a knife
near his residence in Dhangadhra Housing Board. An FIR being II-
C.R.No.155 fo 2005 was filed with the Dhangadhra Police Station
for the offence under Sections 135 and 142 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 charge sheet
came to be filed before the Court of the Judicial Magistrate, First
Class, Dhangadhra, which was registered as Criminal Case No.857
of 2005.
2.3. The accused was 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. The
plea of the accused was recorded at Exh.5, wherein, the accused
denied all the contents of the offence against him and the entire
evidence of the prosecution was taken on record. The prosecution
examined 6 witnesses and produced 3 documentary evidences in
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support of the case.
2.4. After the closing pursis was submitted by the learned
APP, the further statement of the accused under Section 313 of the
Code was recorded wherein the accused denied the evidence on
record. 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 dated 08.12.2009, was pleased to convict the
accused and sentence him to simple imprisonment for six months
and fine of Rs.500/- and in default, simple imprisonment of one
month and the offence punishable under Section 142 of the
B.P.Act.
2.5. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the accused
preferred Criminal Appeal No.1 of 2010 before the learned
Additional Sessions Court, Dhangadhra, whereby, the appeal
preferred by the accused came to be allowed and the learned 2 nd
Additional Sessions Judge, Dhangadhra quashed and set aside the
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judgment and order of conviction in Criminal Case No. 857 of 2005
passed by the learned Judicial Magistrate First Class, Dhangadhra
on 08.12.2009 and acquitted the accused from the offence
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Appellate Court, the
appellant - State has filed the present appeal mainly stating that
the impugned judgment and order passed by the Appellate Court
is ex-facie, illegal, arbitrary and without properly appreciating the
facts of the case and the materials available on record. The learned
Appellate Court has erred in appreciating the evidence and
without there being cogent and substantial reasons, acquitted the
accused. The Appellate Court has erred in appreciating the oral as
well as the documentary evidences produced by the prosecution in
its true spirit and straightway arrived at the conclusion that the
prosecution has failed to prove the case beyond reasonable doubts,
and therefore, the order of acquittal passed by the learned
Appellate Court requires to be quashed and set aside.
4. Heard learned APP Mr.Pranav Dhagat for the
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appellant - State. Perused the impugned judgment and order of
acquittal passed by the Appellate Court as well as judgment and
order of conviction passed by the learned Trial Court and have re-
appreciated the entire evidence of the prosecution on record of the
case. Though served, the respondent has not appeared either in
person or through an advocate.
4.1. Learned APP Mr.Pranav Dhagat for the appellant -
State has taken this Court through the entire evidence produced
by the prosecution and has vehemently argued that the Appellate
Court has not appreciated the evidence properly and the
prosecution has produced cogent evidence to prove the case and
has successfully proved the case against the accused but the
Appellate Court has not considered the same and has acquitted the
accused. The judgment and order of acquittal passed by the
learned Judge is contrary to law, evidence on record and principles
of justice. The judgment and order of acquittal passed by learned
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
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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.
5. As per the case of the prosecution, an externment order
externing the accused from the villages of Dhangadhra, Taluka
Dhangadhra, District Surendranagar was passed by the Sub-
Divisional Magistrate, Dhangadhra and the same is produced at
Exh.19, and even though, the externment order was in existence,
the complainant Rajendrasingh Gambhirsingh Rana, Unarmed
Police Head Constable, Backle No.1157, Dhangadhra City Police
Station had received secret information that the accused had come
to his residence in Dhangadhra Housing Board. The complainant
along with ASI C.G.Parmar, ASI A.J.Malek, ASI B.V.Malek, Head
Constable Chotubha Varshaji, Police Constable Virendrasinh and
Police Inspector M.B.Amrutia had gone to Dhangadhra Housing
Board at around 2.40 hours on 25.09.2005 and they found the
accused fleeing from the place as he saw the police staff. They
arrested him and the complaint was filed by the complainant
Rajendrasinh Gambhirsinh Rana which is produced at Exh.8. To
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prove the offence against the accused, the complainant has
deposed an oath at Exh.7 and the FIR has been produced at Exh.8.
6. The prosecution has also examined PW-2 Firozbhai
Ahmedbhai at Exh.11 and PW-3 Rafiqbhai Rasoolbhai at Exh.13.
Both the witnesses are the panch witnesses of the arrest
panchnama, which is produced at Exh.12, but both the witnesses,
who are independent witnesses, have not supported the case of the
prosecution and have been declared hostile.
6.1. The prosecution has examined PW-4 Chotubha
Varshaji Vala at Exh.16 and the witness was along with the
complainant and others at the time when the accused was
arrested. If the deposition of the complainant and PW-4 Chotubha
Varshaji Vala is perused, they have both admitted that the
Dhangadhra Housing Board is a large area and there are a number
of persons residing there. They did not verify as to whether the
accused had taken any permission to enter into the area, and in the
complaint, the complainant has not given the names of any
independent witnesses and they have not recorded the statements
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of any independent witnesses. Moreover, the complainant has
admitted that when an externment order is passed, the place,
where, the accused has been placed and the details of the place,
where, the accused resided has been kept in the police station, but
no such evidence has come on record.
6.2. PW-5 Virendrasinh Bhagwasinh Jadeja examined at
Exh. 17 is the Investigating Officer, who has investigated the
offence and PW-6 Pranav Janakrai Dave examined at Exh. 18 and
the witness is the clerk working in the Sub Divisional Office,
Dhangadhra and he has produced the externment order at Exh.19.
7. If all the evidence on record is perused, there are no
independent witnesses examined by the prosecution and no
evidence that the accused was actually present at the place when
he was arrested. The place where the accused has been arrested is
a residential area and the prosecution has not proved beyond
reasonable doubts that the accused was at that place and only the
complainant and PW-4, who was a member of the police party that
was at the place have been examined. The family members of the
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accused or the neighbours would also be available, but they have
not been examined by the learned Trial Court. In light of this
evidence, the evidence that is appreciated by the learned Appellate
Court is just and proper and there is no iota of evidence that even
though, the externment order was passed, the accused had entered
into Dhangadhra city.
8. In view of the above, the learned Appellate 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 Appellate Court has
appreciated all the evidence and this Court is of the considered
opinion that the learned Appellate Court was completely justified
in acquitting the accused of the charge leveled against him. The
findings recorded by the learned Appellate Court are absolutely
just and proper and no illegality or infirmity has been committed
by the learned Appellate Court and this Court is in complete
agreement with the findings, ultimate conclusion and the resultant
order of acquittal recorded by the learned Appellate Court. This
Court finds no reason to interfere with the impugned judgment
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and order passed by the learned Appellate Court and the present
appeal is devoid of merits and resultantly, the same is dismissed.
9. The impugned judgment and the order dated
31.11.2011 in Criminal Appeal No.1 of 2010 passed by the learned
2nd Additional Sessions Judge, Dhangadhra is hereby confirmed.
10. Bail bond stands cancelled. Record and proceedings be
sent back to the learned Appellate Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
