Gujarat High Court
Gopal Ravji Mali vs State Of Gujarat on 2 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION)
NO. 1001 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
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Approved for Reporting Yes No
✔
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GOPAL RAVJI MALI
Versus
STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 02/05/2025
ORAL JUDGMENT
[1] The present revision application preferred under Section
397 read with Section 401 of the Criminal Procedure Code,
1973 (hereinafter referred to as "the Code") assails the
correctness and validity of judgment and order dated
31.08.2017 passed by the learned 3rd Additional Sessions Judge,
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Gandhidham - Kachchh (hereinafter referred to as "the learned
Appellate Court") in Criminal Appeal No.160 of 2013, which
inter alia dismissed the appeal preferred by the applicant and
confirmed the judgment and order dated 22.10.2013 passed by
the Chief Judicial Magistrate Court, Gandhidham (hereinafter
referred to as "the learned Trial Court") in Criminal Case
No.3731 of 2011.
[2] The brief facts leading to the filing of the present revision
application are that the case of the prosecution was that the
first informant, who was the proprietor of Arihant Electronics,
lodged a complaint alleging that on 16.04.2011, he had placed a
domestic gas cylinder outside his residence. After returning
home from attending a religious program, the first informant
discovered that the gas cylinder had been stolen. On occurrence
of such incident, a First Information Report came to be lodged
before the Gandhidham 'A' Division Police Station being C.R.
No.I-128 of 2011. During the course of investigation, the
present revisionist applicant - original accused was found in
possession of a domestic gas cylinder and electric motor on
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18.07.2011. The possession of such items were without any
lawful explanation. Consequently, the stolen items were seized
from the present applicant. The investigation was concluded
and charge-sheet was filed for offences punishable under
Sections 379 and 114 of the Indian Penal Code, 1860
(hereinafter referred to as "the IPC"). Upon filing of charge-
sheet, the charge came to be framed. The prosecution
examined 22 witnesses. Eight panch witnesses turned hostile.
However, P.W. '4', namely Satishbhai Lalchandbhai
corroborated the fact that the gas cylinder at his residence was
supplied by the present revisionist applicant. On conclusion of
the trial, the present applicant was convicted for offences
punishable under Sections 379, 447, 114 of the IPC and was
sentenced simple imprisonment of 1 year.
[2.1] Being aggrieved by the order of conviction passed by the
learned Trial Court, present applicant preferred an appeal
under Section 374 of the Code, which came to be numbered as
Criminal Appeal No.160 of 2013. The learned Appellate Court
by way of the impugned judgment and order dismissed the
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appeal preferred by the present revisionist - applicant and
confirmed the order of conviction passed by the learned Trial
Court. This order has culminated into filing of present revision
application.
[3] Heard Mr. Vishal Anandjiwala, learned advocate for the
applicant and Mr. Hardik Soni, learned Additional Public
Prosecutor for the respondent - State.
[4] Mr. Vishal Anandjiwala, learned advocate for the applicant
has submitted that the applicant is absolutely innocent and has
not committed any offence as alleged against him. The case
solely hinges on circumstantial evidence and there are no eye-
witnesses. The authorities have failed to produce any
documentary evidence of any kind of procurement of gas
cylinder by the applicant. The charges against the applicant are
leveled as per the convenience of the police authority. It was
further submitted that the First Information report was lodged
on 15.07.2011, while the arrest was made on 16.07.2011 and,
therefore, the prosecution has failed to provide any detail as to
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what took place in between the 7 days. Additionally, no
material has been placed on record to show that the gas
cylinders were in possession of the applicant or they were stolen
by the applicant. It was further submitted that high reliance is
placed on the testimony of Satishbhai Lalchandbhai, which is
absolutely not justified. It was further submitted that the
panchas have turned hostile and further there was no Test
Identification Parade. It was further submitted that there are
allegations of theft and sale of a regulated commodity like a gas
cylinder. The supply of gas cylinder is always in exchange of an
unfilled gas cylinder. Therefore, there has to be a record of the
gas cylinders supplied an empty ones taken back. There is no
justification in making allegations as to how the gas cylinders
are supplied by the present applicant to Satishbhai
Lalchandbhai. It was further submitted that the prosecution
case is based on demonstration panchnama, which is
inadmissible as per Section 27 of the Evidence Act. On basis of
such submission, Mr. Anandjiwala prayed to allow present
revision application.
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[5] Per contra, Mr. Hardik Soni, learned Additional Public
Prosecutor for the respondent - State has submitted that there
are concurrent findings recorded by both the learned Trial
Court as well as learned Appellate Court. The evidence of
Satishbhai Lalchandbhai is crystal clear that the gas cylinder
was stolen by the present applicant and was subsequently
supplied to Satishbhai Lalchandbhai. This comes in the
testimony of Satishbhai Lalchandbhai. It was further submitted
that there are antecedents against the present revisionist -
applicant. Therefore, he is an habitual offender and no leniency
is warranted in favour of the present applicant in wake of the
concurrent finding of both the learned Trial Court as well as the
learned Appellate Court.
[6] Having heard the learned advocates appearing for the
respective parties and having perused the material on record, it
appears that the arguments advanced by Mr. Vishal
Anandjiwala, learned advocate for the applicant are mainly
confined to a re-appreciation of the evidence. As per Mr.
Anandjiwala, learned advocate for the applicant the panchs have
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turned hostile and the demonstration panchnama cannot be a
ground of conviction of the applicant. However, what is
required to be seen is that subsequent to the allegations of theft
of gas cylinder, the authorities had arrested the present
revisionist - applicant and found certain gas cylinders with him
and which were in possession of the applicant. Thereafter, it
had transpired that the applicant was selling the stolen gas
cylinders to third parties. Even though gas cylinders are a
regulated commodity, instances of black-market supply arise
when there is increased demand. The statement of Satishbhai
Lalchandbhai, which is not controverted and even established in
her testimony confirmed the fact that present revisionist -
applicant had supplied the stolen gas cylinders to the third
parties including petitioner. In view of the same, there cannot
infirmity attached to the conviction of the present revisionist -
applicant.
[7] The revisional jurisdiction under Section 397 of the Code
is a limited jurisdiction exercisable if the court below has
committed a manifest illegality or the findings are perverse and
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based on misreading of evidence resulting into miscarriage of
justice. The principles for exercise of revisional jurisdiction
under Section 397, Cr.P.C. were highlighted in D. Stnbens Vs
Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of
Andhra Pradesh [1963 SCR 412]. In State of Maharashtra
Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004)
7 SCC 659], the Apex Court reiterated that the revisional
power of the High Court under Sections 397 and 401, Cr.P.C.
cannot be exercised as a second appellate power and that the
High Court cannot, while exercising the revisonal power,
undertake in-depth and minute re-examination of entire
evidence and upset concurrent findings of the trial court and
first appellate court.
[8] Keeping in view the parameters for exercise of revisional
jurisdiction, it could not be said that the orders passed by the
courts below and the concurrent findings arrived at, were
proper. They were factual in nature. The courts below could not
be said to have committed any error in holding that the offence
was committed. Even though the conviction of the present
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revisionist- applicant is confirmed, the aspect of sentence is
required to be looked into. The main allegations are theft of gas
cylinders and in the present case, around 2 to 6 gas cylinders.
Therefore, the punishment of 1 years would seem to be little bit
harsh. However, Mr. Hardik Soni, learned Additional Public
Prosecutor for the respondent - State has produced on record
the statement of the antecedents of present revisionist -
applicant. A perusal of the record reveals that there are as
many as 13 antecedents, most of which are subsequent to the
incident in question and they are from the year 2013 to 2020.
Therefore, the present revisionist - applicant is a habitual
offender. Ordinarily, considering the limited quantum of theft
involved in the present case, a more lenient sentence may have
been justified. However, looking to the conduct of the applicant
such aspect would not be permissible. The sentence is
definitely required to be reduced looking to the nature of
offence. However, looking to the history of antecedents of
present revisionist - applicant at least 3 months of sentence is
required to be confirmed. The only modification is to the
quantum of sentence which is reduced from 1 year to 3 months.
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Further, a period of 4 weeks is granted to the present revisionist
- applicant to surrender before the jail authorities.
[9] In view of the reasons mentioned hereinabove, the present
revision application is dismissed to extent that the conviction
order passed by both the learned Trial Court and the learned
Appellate Court are confirmed. However, the sentence is
reduced from a period of 1 year to 3 months.
Sd/-
(PRANAV TRIVEDI, J.)
DHARMENDRA KUMAR
