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. 1000 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 filed under Section 397
read with Section 401 of the Criminal Procedure Code, 1973
(hereinafter referred to as "the Code") assailing the correctness
and validity of order dated 31.08.2017 passed by the learned
Sessions Judge, Gandhidham - Kachchh (hereinafter referred to
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as "the learned Appellate Court") in Criminal Appeal No.159 of
2013, wherein the learned Appellate Court has confirmed the
order of conviction and sentence passed by the Chief Judicial
Magistrate Court, Gandhidham (hereinafter referred to as "the
learned Trial Court") in Criminal Case No.3729 of 2011 .
[2] The brief facts leading to the filing of the present revision
application are that a First Information Report came to be
lodged before the Gandhidham 'A' Division Police Station being
C.R. No.125 of 2011, inter alia, alleging that the present
revisionist - applicant along with the help of other accused had
committed theft of gas cylinders on 07.07.2011. It was further
alleged that the first informant was having a function on
09.07.2011 and at around 20:00 hours. The gas cylinders,
which had been kept at the venue of function, namely Agrawal
Samaj Wadi were stolen. On the occurrence of such incident, a
First Information Report for offence punishable under Sections
380 and 114 of the Indian Penal Code (hereinafter referred to as
"the IPC") was lodged. Upon investigation, it was found out that
the present applicant has stolen the gas cylinders. It has also
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come into investigation that the gas cylinders were given to one
Rajiben Mithubhai Kuvariya. Upon completion of the
investigation, charge-sheet came to be filed and charge came to
be framed. The case was registered as Criminal Case No.3729
of 2011. By way of the judgment and order dated 22.10.2013,
the learned Trial Court convicted the present applicant for the
offence punishable under Section 380 read with Section 114 of
the IPC and sentenced him to undergo simple imprisonment of
one year.
[2.1] Being aggrieved by the order passed by the learned Trial
Court, present revisionist - applicant preferred an appeal under
Section 374 of the Code. The appeal came to be numbered as
Criminal Appeal No.159 of 2013. By way of the impugned order
dated 31.08.2017, the learned Appellate Court dismissed the
appeal preferred by the present revisionist - applicant and
confirmed the order passed by the learned Trial Court. This
dismissal of the appeal has led to filing of the present revision
application.
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[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
cylinders 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 13.07.2011, while the arrest was made on 16.07.2011
and, therefore, the prosecution has failed to provide any detail
as to 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 Rajiben Mithubhai Kuvariya, which is
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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 Rajiben Mithubhai
Kuvariya. 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.
[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
Rajiben Mithubhai Kuvariya is crystal clear that the gas
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cylinders were stolen by the present applicant and were
subsequently supplied to Rajiben Mithubhai Kuvariya. This
comes in the testimony of Rajiben Mithubhai Kuvariya. 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
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 cylinders, the authorities had arrested the present
revisionist - applicant and found certain gas cylinders with him
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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 Rajiben
Mithubhai Kuvariya, 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
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
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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
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
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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.
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
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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
