Gujarat High Court
State Of Gujarat vs Sobatbhai Khimabhai on 2 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1981/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1981 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
SOBATBHAI KHIMABHAI
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Appearance:
MR ROHAN RAVAL APP for the Appellant(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The present appeal filed by the State under
Section 378(1)(3) of the Criminal Procedure Code,
1973 (for short ‘Cr.P.C.’) challenges the
judgment and order of acquittal dated 30.09.2004
passed by the learned Additional Sessions Judge,
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2nd Fast Track Court, Dhrangadhra in Sessions Case
No.31 of 1999.
2. The facts of the case, as has been referred,
briefly can be stated that on 14.04.1999, a
complaint was registered before Haldvad Police
Station for the offence under Sections 395, 397,
452 and 114 of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC‘ for short) as
well as Section 135 of Bombay Police Act (for
short, ‘B.P. Act‘) vide C.R. No.51/99, stating
the fact that some accused persons have assaulted
the staff members of petrol pump with deadly
weapons and thereby, committed robbery of cash of
Rs.12,806/- of patrol pump, situated on Highway
at about 11.00 p.m.
3. Learned APP Mr. Rohan Raval, has referred to
the charge framed by the Trial Court against ten
of the accused, stating that on the referred time
and place, the accused had joined together and
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committed dacoity and robbery with sticks as
deadly weapons, had caused grievous hurt to three
of the persons. APP Mr. Raval further stated that
there was breach of notification under Section
135 of the B.P. Act.
3.1 Learned APP Mr. Raval has stressed upon the
evidence of witnesses stating that the
complainant had identified the accused. The panch
also has supported the place of incident. Mr.
Raval stated that witness (PW3) was present at
the petrol pump and has stated that the
complainant has identified the accused. The
Chowkidar-Maganbhai (PW4) has supported the
prosecution case, stating about the robbery, and
further stated about the evidence of owner of the
petrol pump (PW5). Mr. Raval stated that though,
the owner was not present there, but after
hearing about the incident, had come with loaded
pistol and had seen the last man running away
from the place. Mr. Raval stated that, arrest
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panchnama of Shobatsinh Khimabhai Bariya (Exh.24)
verifies the fact of incident, which had taken
place.
3.2 Learned APP further stated that P.W.8 –
Rameshbhai Raval being police constable had
identified the accused. He had given the
deposition with specific identification of the
accused being found in the morning at about
10.00, as ‘Chaddi-Banyandhari’ and ‘Lungiwala’
near Kalpana Hotel and when they were asked to
stop, they ran away, and there was firing in the
air, and during that period, Sobatsinh Khimabhai
Bariya was arrested.
3.3 Learned APP Mr. Raval further stated that
Satish Chhotubhai Patel (PW9), the Executive
Magistrate, has given the deposition of the
procedure undertaken by him for identification
and with supporting evidence of the Executive
Magistrate, the deposition proved that the
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accused were identified.
3.4 Learned APP has placed reliance on the
injured victim – Bharatbhai, who could identify
the person, who had given him blow. Mr. Raval
thus, stated that the fracture injury sustained
by Bharatbhai could be proved by medical
evidence. Mr. Raval further placed reliance on
the deposition of PW13 – Takhatsinh Thakor, who
has given the evidence regarding the panchnama
and the fact of recording of statements of the
witnesses.
3.5 Learned APP Mr. Raval further submitted that
PW14 – Doctor Rampyare Prasad Verma had medically
examined the injured and the evidence of the
doctor corroborates the fact that three of the
persons had sustained injury during the incident.
4. Perusal of judgment of the learned Trial
Court Judge, shows that the learned Judge has
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appreciated the incident of 14.04.1999 on 11.00
at night on Haldvad Highway Road at Gokulesh
Petrol Pump. The employees were present at the
petrol pump and there was loot of cash of
Rs.12,806/-. The learned Judge has observed that
the complaint was registered at Haldvad Police
Station as I-C.R. No.51/99. Thereafter, the
investigation was undertaken and panchnama was
drawn recording the statements of the witnesses.
4.1 The accused – Shobatsinh Khimabhai was
arrested on 15.04.1999 between 10.30 to 11.00 by
Dhrangadhra Police under Section 41(1) of the
Cr.P.C. and the Investigating Officer thereafter,
took the evidence of F.S.L. Officer, who had
visited the place and also the Mamlatdar of
Halvad. The learned Judge on appreciation of the
evidence noted that on the next day of the
incident at Highway by-pass, near Dhrangadhra at
Kalpana Hotel, the police had found five of the
accused running away from the place and on
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physical examination of the accused only Rs.360/-
cash was found. One of the accused was arrested,
while rest of the four had run away from the
place.
4.2 Before Mamlatdar Halvad, the identification
was carried out and two of the witnesses i.e.
complainant-Jaysinhbhai and injured-Bhartbhai
were present before the Mamlatdar. The
depositions of three of the witnesses do not
bring consistency for identification of the
accused. Only one of the accused, who was stated
to be found in front of group, was stated to be
identified. Otherwise, witnesses Maganbhai and
Bharatbhai could not identify the accused.
Therefore, the learned Judge did not find it safe
to rely on the depositions of the witnesses, who
could not identify the accused observing, that
the statement could have no value, when there
were presence of fifteen to twenty persons at
that time.
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4.3 The learned Judge observed that the
complainant Jaysinhbhai though had identified,
however, in the complaint at Exh.18, he had not
stated of having seen the persons, who had come
for robbery. Thus, the learned Judge did not find
the corroboration from the complaint and found it
that the statement was coming for the first time
in the Court and hence, in absence of the
corroboration did not find it fit to rely on the
identification parade.
4.4 The learned Judge also observed that the
injured witness Bharatbhai too could not identify
the accused. Even during the identification
parade and relying upon the statement of police
Rameshbhai, who has deposed that on 15.04.1999 in
the morning he received a telephone message about
‘Chaddi-Baniyandhari’ at the Kapana Hotel and
thereafter, the accused came to be arrested after
a period of about twelve hours, the learned
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judge did not find it safe to rely on that
evidence, observing that when the important
witnesses could not identify the accused then,
only evidence of arresting the accused, would
bear no significance to join the accused with the
offence. The learned Judge, thus, did not find
any cause to rely on the evidence of any of the
witnesses and observed that the prosecution has
failed to prove the case beyond reasonable doubt.
5. The judgment of Chandrappa v. State of
Karnataka (2007) 4 SCC 415, would be relevant to
be mentioned since the judgment lays down the
general principles for the consideration of the
acquittal appeals. The Hon’ble Supreme Court has
held thus:
“The following general principles regarding powers
of the 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.
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(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 is 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.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record and one
favourable to the accused has been taken by the
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trial court, it ought not to be disturbed by the
appellate court.
5.1 In the case of H.D. Sundara v. State of
Karnataka, [(2023) 9 SCC 581], the Hon’ble
Supreme Court has held as under:
“8. In this appeal, we are called upon to consider
the legality and validity of the impugned judgment
[State of Karnataka v. H.K. Mariyappa, 2010 SCC
OnLine Kar 5591] rendered by the High Court while
deciding an appeal against acquittal under Section
378 of the Code of Criminal Procedure, 1973 (for
short “CrPC“). The principles which govern the
exercise of appellate jurisdiction while dealing
with an appeal against acquittal under Section 378
CrPC can be summarised as follows:
8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after re-
appreciating the evidence, is required to
consider whether the view taken by the trial
court is a possible view which could have been
taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the
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appellate court cannot overturn the order of
acquittal on the ground that another view was
also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can be
recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible.”
6. We, on perusal of the deposition as well as
the charge and the observation of the learned
Trial Court Judge, are of the consistent view
that the conclusion reached by the learned Judge
on appreciation of evidence is reliable and there
is nothing to consider as being patently illegal
or that the conclusion arrived at is on the basis
of any untenable evidence.
7. We do not find merits in the appeal, hence,
the present appeal stands dismissed. The impugned
judgment and order of acquittal dated 30.09.2004
passed by the learned Additional Sessions Judge,
2nd Fast Track Court, Dhrangadhra in Sessions Case
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No.31 of 1999 is hereby confirmed. Bail bond, if
any, stands cancelled. Record & Proceedings be
sent back to the concerned Trial Court forthwith.
(GITA GOPI,J)
(P. M. RAVAL, J)
Pankaj/4
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