[Cites 12, Cited by 0]
Gujarat High Court
Patel Bhurabhai Bhemabhai vs State Of Gujarat on 22 April, 2026
NEUTRAL CITATION
R/CR.RA/176/2007 JUDGMENT DATED: 22/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 176 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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PATEL BHURABHAI BHEMABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR NP CHAUDHARY for MR TUSHAR CHAUDHARY(5316) for the Applicant(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 22/04/2026
JUDGMENT
RULE. Learned APP waives service of notice of Rule for and on
behalf of the respondent - State of Gujarat.
[1.0] By way of present revision application under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973 (for short
"CrPC"), the applicant has prayed for quashing and setting aside of the
judgment and order of conviction and sentence dated 27.08.1996
passed by the learned 2nd Extra Assistant Sessions Judge, Palanpur in
Sessions Case No.97 of 1993 and also the judgment and order dated
08.03.2007 passed by the learned Additional Sessions Judge, 2 nd Fast
Track Court, Deesa in Criminal Appeal No.18 of 1996.
[2.0] Heard learned advocate Mr. N.P. Chaudhary for learned
advocate Mr. Tushar Chaudhary for the applicant and learned APP for
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respondent - State of Gujarat.
[3.0] The brief facts leading to filing of the present application are as
follows:
[3.1] One Karmanbhai Sendhabhai Rabari of village Bharvada, Taluka
Vav, District Banaskantha filed an FIR being I-CR No.18/1992 with
Suigam Police Station for the offence under Section 436 of the Indian
Penal Code, 1860 (For short "IPC" on 07.05.1992 against the present
applicant alleging that the applicant - accused caused damage to the
Hut of the complainant situated in Survey No.695 of village Bharvada
by setting it on fire and thereby the applicant committed the offence
punishable under Section 436 of the IPC. After completion of
investigation, charge-sheet came be filed on 17.06.1992 and as the
offence under Section 436 of the IPC was exclusively triable by the
Court of Sessions, it was committed to Sessions Court, Palanpur on
14.08.1992 which was registered as Sessions Case No.97 of 1993.
Thereafter, the Charge at Exh.2 was framed by the learned trial Judge.
After full-fledged trial, the learned 2nd Extra Assistant Sessions Judge,
Palanpur vide the judgment and order dated 27.08.1996 passed in
Sessions Case No.97 of 1993, convicted the present applicant -
accused for the offence under Section 436 of the IPC and sentenced
the applicant to undergo rigorous imprisonment for five years with
fine of Rs.5000/- and in default of payment of fine, to undergo further
simple imprisonment for one year. The said judgment and order came
to be challenged by the applicant by way of filing Criminal Appeal
No.18/1996 which came to be dismissed by the judgment and order
dated 08.03.2007 and conviction and sentence imposed upon the
applicant was upheld and confirmed. Hence, present revision
application is filed.
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[3.2] Learned advocate Mr. Chaudhary appearing for the applicant
has submitted that both the Courts below have committed an error in
passing the judgment and order of conviction and sentence and same
is unjust, improper and perverse and passed without appreciating the
evidence though offence under Section 436 of the IPC is not made
out. He has further submitted that as per Section 436 of IPC, there
should be destruction of any building which is used as a human
dwelling by mischief by fire or explosive substance with intent to
destroy it and thus, destruction of building is must to attract section
436 of the IPC and has submitted that in case property other than the
building is destroyed by fire, then section 435 of the IPC would apply
and not Section 436 of the IPC. Even, as per the prosecution case,
damage was caused to Chhapara (Kuba) situated in the agricultural
field and the chhapara (kuba) cannot be termed as a 'building' and
therefore, conviction and sentence under Section 436 IPC is bad in
law. He has further submitted that damage is caused to hut situated in
the field which cannot be termed as building. Further, he has
submitted that no reliable evidence is produced on record and learned
trial Court has committed an error in considering the so-called eye-
witness who is not having any personal knowledge and only relying on
the evidence of child witness namely Pira Hemraj who is declared
hostile though the learned trial Court has accepted the version of said
witness and on the basis of said witness, conviction is recorded. The
said witness is a chance witness and his evidence is not having any
evidentiary value. Even, the possession of the property is also not
proved and actual owner of the said disputed property is the applicant
and his family had mortgaged the said property situated at Survey
No.695 of village Bharvada and the father of the applicant had paid
the amount of mortgage to the father of the complainant and had
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requested the Talati-cum-Mantri of village Bharvada by submitting an
application (Exh.30) dated 15.04.1990 to enter his name in the
revenue record and on receipt of the said application, the Talati-cum-
Mantri had issued notice under Section 135-D of the Bombay Land
Revenue Code to Bhurabhai Jagnath and Sendhabhai Jagnath (father
of complainant) and thereafter, vide Entry No.691, name of the father
of the applicant was entered into the revenue record. As per 7/12
Abstract, land of survey No.691 is shown in the name of the father of
the applicant and thus, when the incident took place, the applicant
and his family members were in possession of the land on which the
alleged Chhapara of the complainant (hut) was situated and therefore,
he has submitted that no such incident had taken place but, because
of the land dispute, false case was registered against the applicant.
[3.3] He has further submitted that the father of the applicant filed
Special Civil Suit No.31 of 1990 on 08.06.1990 and ex parte interim
relief was granted and thereafter, on 18.08.1992, interim relief was
vacated but, the father of the applicant preferred Civil Revision
Application No.3838 of 1992 before the High Court wherein status-
quo was ordered to be maintained vide order dated 07.10.1992. He
has therefore submitted that it is crystal clear that the applicant was
in possession of the land in which the alleged incident took place
however, with a view to obtain possession of the disputed land, false
and fabricated case is registered against the applicant alleging that
Chhapara of the complainant was set on fire by the applicant. Keeping
grudge of the longstanding civil dispute, the complainant has falsely
enroped the present applicant in the offence. Therefore, he has
requested to allow the revision application by quashing and setting
aside both the judgment and orders.
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[4.0] Learned APP has vehemently opposed the present revision
application by submitting that there are concurrent findings of fact
and there were civil proceedings pending between the parties and
with a view to thwart the civil proceedings, 5 huts came to be burnt
and the learned trial Court as well as learned appellate Court have
properly appreciated the evidence and convicted the present
applicant and therefore, no interference in exercise of revisional
jurisdiction is called for. Hence, he has requested to dismiss the
revision application.
[5.0] Having heard learned advocate appearing for the respective
parties and perusing the record, it appears that the FIR being I-CR
No.18/1992 came to be filed against the applicant for the offence
under Section 436 of the IPC and after investigation, Criminal Case
No.135/1992 came to be registered and as the offence was sessions
triable, it got registered as Sessions Case No.97/1993 which was tried
before the learned 2nd Extra Assistant Sessions Judge, who convicted
the present applicant and sentenced him to undergo 5 years of
rigorous imprisonment with fine of Rs.5000/- and in default of
payment of fine to undergo further SI for one year. As per the case of
prosecution, the complainant alongwith with his family and
belongings was residing in 5 huts situated on the field of land bearing
Survey No.695 of village Bharvada and in the courtyard the
complainant had kept his utensils, sheep and goat. It is alleged that on
the fateful day i.e. on 07.05.1992, at about 3 pm, when the
complainant had gone to field for grazing his cattle and three children
were playing, the applicant - accused set on fire the said 5 huts due to
which two sheep and all household articles of the complainant got
burnt and damage to the tune of Rs.85,000/- was caused to the
complainant. On coming to know about the incident, the complainant
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reached the spot and at that time three children were crying and
accused fled away. While the huts were on fire, one witness namely
Rajput Pirabhai saved the children and extinguished the fire and he
had seen the applicant - accused fleeing from the place of incident. In
this regard, the complaint came to be filed and panchnama was drawn.
[5.1] In order to prove the case, the prosecution has examined 7
witnesses namely (1) Mohanbhai Rupabhai Parmar (PW-1, Exh.5), (2)
Complainant Karman Sendha (PW-2, Exh.9), (3) Pira Hemraj (PW-3,
Exh.12), (4) Pira Bhura (PW-4, Exh.13), (5) Khoda Bhura (PW-5, Exh.15),
(6) Bhura Jagannath (PW-6, Exh.16) and (7) Investigating Officer
Bhagwanram Israram Bishnoi (PW-7, Exh.23) and have produced on
record documentary evidences i.e. (1) panchnama of scene of offence
(Exh.6), (2) complaint (Exh.10), (3) Copy of order passed in RTS Appeal
No.3/1990 (Exh.19), (4) copy of judgment rendered in SCA
No.3838/1992 (Exh.11), (5) 7/12 village abstract of R.S. No.695
(Exh.20) and (6) certified copy of application Exh.5 in SCS No.31/1990
alongwith order passed therein (Exh.21). After recording the evidence,
statement of applicant - accused under Section 313 of the CrPC came
to be recorded and applicant - accused examined Jasudan Gadhvi,
Talati cum Mantri at Exh.28 and produced 10 documentary evidences
in connection of the RTS proceedings to show the ownership of the
property situated at Survey No.695 and copy of assessment register is
produced on record. After appreciating the evidence, the learned 2 nd
Extra Assistant Sessions Judge come to the conclusion that at the
time of incident, three children were present and son of Bhura Pira
who is examined as a material witness was having personal knowledge
about the incident. One Pira Rajput, who was present at the place of
incident, is the first witness, who saved the children, when huts were
set at fire. The main defence of applicant - accused is that only with a
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view to retain the possession, false case is foisted against the
applicant - accused however, actually the complainant had already
vacated the field and they were residing in village and their houses are
situated in the village Bharvada and in this regard, Talati cum Mantri is
examined and assessment register is produced on record and further
it is disputed that earlier the disputed property was mortgaged and it
was released and in this regard, entry in the revenue record came to
be made by the father of present applicant - accused and only with a
view to create an evidence in the civil proceedings, false complaint is
filed.
[5.2] By appreciating the evidence, the learned 2 nd Extra Assistant
Sessions Judge as well as the learned Sessions Judge in appeal come
to the conclusion that the learned trial Court has properly appreciated
the evidence and claim of the applicant - accused is far from truth and
on the contrary come to the conclusion that 5 huts were situated in
the field and on the contrary Defence Witness examined Jasudan
Samtaji (Exh.28), who has also admitted that Sendha Jagannath and
Bhura Jagannath and his heirs were situated in the field and at the
time when the incident took place, people of Rabari community were
in the possession but possession of field was with the Bhura Bhema
i.e. the present applicant. Considering the aforesaid fact, Defence
Witness himself admitted the possession of huts that were used as
dwelling house belonging to the complainant and his family members.
Merely possession of field was with Bhema Bhura is not a ground to
show that he has not set at blaze the huts. Because, two witnesses
have supported the case of prosecution, considering the conduct
under Section 8, there is no bar that evidence of such witness, who is
found reliable, is required to be discarded and after due care and
caution, the learned 2nd Extra Assistant Sessions Judge has recorded
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the evidence and not only that, has come to the conclusion that there
is nothing on record to show that said evidence has been tutored. On
the fateful day at 3 p.m., accused came by cutting Euphorbia hedge
and entered into the field and set the huts at fire and witness Pira
Rajput has saved the children. Though the said witness is declared
hostile qua limited purpose as he remained silent qua name of the
present applicant. In the cross-examination by the learned APP, the
said witness has admitted that he had seen one Patel fleeing from the
spot. Though the said witness is declared hostile, his evidence has
probative value and has corroborated the evidence of other
witnesses. Hence, argument canvassed by the learned advocate for
the applicant is not acceptable on this count alone.
[5.3] The main contention of learned advocate for the applicant is
that based on revenue entry the applicant and his father were in
possession of the disputed property prior to the incident but perusing
the record, it appears that the learned 2 nd Extra Assistant Sessions
Judge has properly assigned the reason that alleged incident took
place only with a view to snatch the possession of the property
forcibly. Further, the father of accused had filed Special Civil Suit
No.31/1990 wherein ex parte injunction was granted and after
bipartite hearing, it was vacated and being aggrieved and dissatisfied,
Special Civil Application came to be filed before the High Court
wherein the coordinate Bench of this Court has been pleased to pass
an order directing to maintain status quo with regard to the disputed
property. But in the civil proceedings, to show the possession, no any
evidence led by father of applicant - accused and on the contrary the
complainant had filed an application in the capacity of defendant and
Court Commissioner was appointed to show his possession and said
evidence is produced on record and learned 2 nd Extra Assistant
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Sessions Judge has come to the conclusion that as on 17.09.1992, the
complainant was in the possession of the said property. Hence, rather
than believing the evidence of revenue record, which is created in
collusion of revenue authorities, learned 2nd Extra Assistant Judge has
properly assigned the reason and believed the findings and reasons
assigned by the learned Civil Court in the civil proceedings while
deciding Exh.5 application in Special Civil Suit and considering the
aforesaid fact, learned trial Court as well as learned appellate Court
has not committed any error in relying on the findings of the learned
Civil Court and even otherwise, the findings of Civil Court are binding
and are on higher footing then the evidence of revenue authority.
Merely entry in revenue record is not enough to prove the possession
and is only for the fiscal purpose and that too when the said entry is
made behind the back of the original complainant.
[5.4] So far as argument of learned advocate for the applicant that
instead of section 436, section 435 of the IPC ought to have been
invoked is concerned, perusing the panchnama of scene of offence,
considering the damage caused to utensils, pot, bed etc. and other
belongings, it appears that huts were dwelling houses and remainders
are found from the place of offence as per the panchnama. Hence, it
transpires that the mischief is of more than Rs.100/- and applicant -
accused has done mischief by setting on fire 5 dwelling huts of the
complainant which clearly falls under Section 436 of the IPC. Hence,
argument canvassed by the learned advocate for the applicant -
accused that section 435 of the IPC is applicable in the present case is
not acceptable as the alleged premises were not only used for
courtyard or only to keep sheep or goat but were dwelling huts.
Further, the Section 435 of the IPC provides that whoever commits
mischief by fire or any explosive substance, intending to cause, or
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knowing it to be likely that he will thereby cause the destruction of
any building which is ordinarily used as a place of worship or as a
human dwelling or as a place for the custody of property, shall be
punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine. However, herein the applicant - accused is sentenced to
undergo five years of imprisonment.
[5.5] Further, learned trial Court as well as learned appellate Court
have properly appreciated the evidence of Pira Hemraj (PW-3, Exh.12),
and Khoda Bhura (PW-5, Exh.15) and rightly ignored the minor
contradictions and safely with due care and caution appreciated the
evidence of child witness also which is corroborated from the cross-
examination itself as defence has also put suggestion qua the said
witness that at the time and place of incident, said child witness was
playing. Even, in the cross-examination of Pira Bhura (PW-4, Exh.13)
also, said fact is corroborated. Even, defence has not denied anywhere
presence of Pira Bhura (PW-4, Exh.13). Even, both the Courts have
come to the conclusion that only with a view to frustrate and thwart
the civil proceeding to snatch the possession of the property,
applicant - accused has committed the offence and set on fire 5 huts
of the original complainant and it is proved beyond all reasonable
doubts that only with a view to snatch the possession of the property,
the applicant - accused has committed the offence and there appears
no error committed by both the Courts below which calls for
interference by this Court.
[6.0] The revisional jurisdiction can be exercised where there is a
palpable error or non-compliance with the provision of law and where
decision is completely erroneous and where the judicial discretion is
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exercised arbitrarily. Herein, if we examine the reasons assigned by
the learned trial Court, it appears that learned trial Court has already
appreciated the facts and finding of fact not to be upset unless it is
found perverse and finding of fact not to be substituted keeping in
mind the ratio of Hon'ble Supreme Court in the case of Amit Kapoor
vs. Ramesh Chander & Anr. reported in (2012)9 SCC 460 as no
perversity is found in the reasons assigned by the learned trial Court
and upheld by the learned appellate Court. Both the Courts have
properly assigned reasons and given the finding based on evidence led
and hence also, no interference at the hands of this Court in exercise
of revisional jurisdiction is required.
[6.1] It would be appropriate to refer to the decision of the Hon'ble
Supreme Court in the case of Malkeet Singh Gill vs. State of
Chhatisgarh reported in (2022)8 SCC 204 wherein the Hon'ble
Supreme Court held that section 397/401 CrPC vests jurisdiction for
the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order, recorded or
passed, and as to the regularity of any proceedings of such inferior
court. The object of the provision is to set right a patent defect or an
error of jurisdiction of law. There has to be well-founded error which is
to be determined on the merits of individual case. It is also well
settled that while considering the same, the Revisional Court does not
dwell at length upon the facts and evidence of the case to reverse
those findings. It is a settled legal proposition that if the Courts below
have recorded the finding of fact, the question of re-appreciation of
evidence by the Court does not arise unless it is found to be totally
perverse.
[7.0] In wake of aforesaid conspectus, present revision application
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fails and stands dismissed. Rule is hereby discharged.
[8.0] At this stage, learned advocate for the applicant has made a
request to extend the benefit of probation more particularly when the
offence was committed, the applicant - accused was aged 24 years
and now he is 67 years of age and he is a farmer having no sufficient
means to maintain his family also. Learned advocate for the applicant
upon instructions has submitted that the applicant is ready and willing
to quantify the damage caused to the original complainant and
requested to take a lenient view. Considering the aforesaid request
more particularly the fact that the applicant is a first time offender
and no one sustained any bodily injury or any harm in the incident and
the conduct of the applicant and the fact that the original complainant
sustained damage to the tune of Rs.85,000/- even as per the
panchnama drawn at the relevant point of time, keeping in mind the
reformative approach, as applicant - accused is a first time offender,
in exercise of powers under Section 357 of the CrPC and in view of the
decision of the Hon'ble Supreme Court in the case of Ankush
Shivajirao Gaekwad vs. State of Maharashtra reported in (2013)6
SCC 770, in peculiar facts of the case, the applicant - accused is
directed to pay compensation of Rs.1,50,000/- to the original
complainant / victim towards the damage sustained by him in the
incident in question within a period of four weeks from today and
applicant - accused shall file an undertaking to that effect before the
learned Additional Sessions Court, Deesa within a period of one week
from today and subject to the said condition, confirming the judgment
and order of conviction and sentence, the applicant - accused is
ordered to be released on probation of good conduct under Section 4
of the Probation of Offenders Act, upon execution of probation bond
in sum of Rs.25,000/-, with one surety of like amount for a period of
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five (5) years. Once the amount of compensation as awarded by this
Court is deposited by the applicant, learned Additional Sessions
Judge, Deesa to disburse the same to the original complainant or his
legal heirs after due and proper verification.
[8.1] It is hereby further directed that the applicant - accused shall
receive the sentence as and when called upon till the said period and
the applicant shall maintain peace during above mentioned period of
five (5) years.
[8.2] The above mentioned bond under Section 4 of the Probation of
Offenders Act be submitted before the learned trial Court within 15
days of passing of this judgment. It is made clear that in default of any
of the aforesaid conditions, the learned trial Court shall have liberty to
issue Bailable Warrant against the applicant and to take the applicant
in custody to serve the remaining sentence.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
