Gujarat High Court
State Of Gujarat vs Kalu @ Hashmukh Manjibhai Koli on 22 April, 2025
NEUTRAL CITATION
R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 825 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
KALU @ HASHMUKH MANJIBHAI KOLI & ANR.
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Appearance:
Ms. Dhwani Tripathi, APP for the Appellant(s) No. 1
MR PARAM R BUCH(5625) for the Opponent(s)/Respondent(s) No. 1,2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned 3rd Additional Sessions Judge, Veraval, (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 28/2008 on 28.02.2011, whereby, the learned Trial Court has acquitted the respondents for the offence punishable Page 1 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined under Sections 393, 397 read with Section 34 and 120B of IPC and Section 135 of the B.P. Act.
1.1 The respondents are hereinafter referred to as "the accused" as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 The complainant - Sunilkumar Manoharlal Dave was working as the Manager of State Bank of India, Adri branch on 16.01.2008 and it was a working day and after working for the entire day, as the bank hours were over, staff members Special Assistant - Narendrabhai Jani, Cashier -
Anilbhai Lakhani and Peon - Sureshbhai Goswami had left the Bank Premises and the complainant - Sunilkumar Manoharlal Dave and Peon - Amarshibhai Poojabhai Jadhav were working in the bank. At that time Pratapbhai Ramanlalbhai Parmar of Navapara village had come for inquiry about his account with the bank and they were sitting and talking and at that time both the accused entered the bank between 06.30 pm to 06.45 pm with their Page 2 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined faces covered with a white cloth and one person came directly to the complainant - Sunilkumar Manoharlal Dave and the other person went to the Peon - Amarshibhai. Both the persons were armed with big steel knives and without saying anything assaulted the complainant and the complainant sustained injuries on the wrists of both hands and near his neck. Pratapbhai who was seated nearby intervened and he too was assaulted and the complainant managed to come out of the bank and shouted and persons from nearby including Varjangbhai Punjabhai Solanki, Rajubhai Karshanbhai Solanki, Ukabhai Lakhabhai Barad and others came. Both the persons tried to run away and one of the person was caught by the villagers and he was the accused no. 1 - Kalubhai @ Hasmukh Manjibhai Kodi residing at Veraval. As all of them had sustained injuries, they were taken to the hospital at Adri village and from there they were taken to the Government Hospital at Veraval and as their injuries were more serious they were taken to the Sanjeevani Hospital Veraval for treatment. The complainant filed the complaint from Sanjeevani Hospital Page 3 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined before the PSI Somnath Marine Police Station which was registered at Somnath Marine Police Station I - C.R. No. 2 of 2008 under Sections 393, 397, 34 of the IPC and Section 135 of the BP Act.
2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a charge- sheet came to be filed before the learned Judicial Magistrate First Class, Veraval and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Veraval as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Sessions Case No. 28/2008.
2.3 The accused were 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. A charge at Exh. 10 was framed against the accused and the statements of the accused were recorded at Page 4 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined Exhs. 11 and 12, wherein, the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record.
2.4 The prosecution has examined 12 witnesses and produced 27 documentary evidences and after the learned APP filed the closing pursis, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence of the prosecution on record. After the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit the accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the fact that all the witnesses have supported the case of the prosecution and Page 5 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined during the cross-examination, nothing adverse has been elicited in favor of the respondents. The case has been proved beyond reasonable doubt and the prosecution has successfully established the case against the respondents and the judgment and order of acquittal is unwarranted, illegal, and without any basis in the eyes of the law and the reasons stated while acquitting the respondent are improper, perverse and bad in law. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside.
4. Heard learned APP Ms. Dhwani Tripathi for the appellant State and learned advocate Mr. Param Buch for the respondents. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Dhwani Tripathi has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the complainant has fully supported the facts of his complaint. The impugned Page 6 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined judgement and order is perverse and learned APP has urged this Court to quash and set aside the same and find the respondent guilty for the offences.
6. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court regarding the scope of interference in acquittal appeals in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court stated:
"While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should Page 7 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined assign reasons for differing with the decision of the trial court".
From the above decisions, in our considered view, the following general principles regarding powers of 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;
(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 Page 8 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined innocence 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, the appellate court should not disturb the finding of acquittal recorded by the trial court.
7. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. There is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court Page 9 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined was a possible view, there is no reason for the Appellate Court to interfere in the same.
8. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 - Dayaram Dahyabhai at Exh. 16 and the witness is the panch witness of the arrest panchnama of the accused no. 1 which is produced at Exh.
17. The witness has fully supported the case of the prosecution and during the cross examination by the learned advocate for the accused the witness has stated that he did not dictate any portion of the panchnama to the police and he generally is doing the work of taking photographs at Somnath Temple. The police station is towards the left of that place and he is known to all the police personnel. That he is normally working from 07.00 am to 07.00 pm in and around the Somnath Temple and he was not called at night by any person.
8.1 The prosecution has examined PW2 - Danabhai Khimabhai Barad at Exh. 22 and the witness is the panch witness of the panchnama of the place of offence which is Page 10 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined produced at Exh. 23. The witness has fully supported the case of the prosecution and has stated that he was called to the bank along with the other panch witness - Bharatbhai Jinabhai Baku and they had gone into the bank which was a big hall and there was a big table on which files were scattered and there were blood drops on the files and on the floor. The police had taken the samples of the blood and there was a knife which was near a bag which was also seized by the police. During the cross-examination by the learned advocate for the accused, the witness has stated that he had seen the blood and one knife was found from the front portion of the bank from the bushes of the Acacia Trees. The police had recovered the knife and had told him that the knife was found from the the Acacia Trees. 8.2 The prosecution has examined PW3 - Rameshbhai Jadavbhai Pandit at Exh. 32 and the witness is the panch witness of the panchnama by which the clothes of the complainant and the injured were seized by the police. The witness has fully supported the case of the prosecution and the panchnama is produced at Exh. 33. During the cross- Page 11 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025
NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined examination by the learned advocate for the accused the witness has stated that he did not verify the names of the persons whose clothes were seized and he does not know any marks of identification of the three persons. When he reached the Sanjeevani Hospital, the panchnama was ready and he had affixed his signature but he does not know which person had worn which clothes.
8.3 The prosecution has examined PW4 - Bashirbhai Valimamadbhai at Exh. 37 and the witness is the panch witness of the arrest panchnama by which the accused no. 2 was arrested and the panchnama is produced at Exh. 39. During the cross-examination by the learned advocate for the accused the witness has stated that the mudaamaal mobile is available in the market freely and when he had gone to the police station the panchnama was ready and the police had nearly asked him to affix his signature on the same and he had affixed his signature. 8.4 The prosecution has examined PW5 - Sunilkumar Manohardas Dave at Exh. 40 and the witness is the complainant who has fully supported the contents of the Page 12 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined complaint which is produced at Exh. 41. During the cross- examination by the learned advocate for the accused the witness has stated that no Test Identification Parade of the accused was conducted by the Executive Magistrate and the timings of his branch are written outside the branch and the timings are from 10.15 to 05.15 on weekdays and from 10.15 to 02.30 on Saturdays. That when the work employees leave, they sign in the register and then leave the office and if he is required to keep the office open beyond office hours, he has to inform the head office. In the month of January it gets dark earlier and on the date of incident at around 06.45, it was dark. On the date of the incident the telephone was working in his office and he had his mobile with him till he had gone to the hospital. That after the incident, the police did not seize any documents from his office and the village people had brought the accused and the accused no. 1 was known to him as he had come for book binding work in the bank. He does not remember whether he had named the accused in the complaint and he had told the doctor that the accused had come with Page 13 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined covered faces and with big knives. He did not inform the police that he was known to the accused no. 1 while filing the complaint. That in the complaint he had stated that he did not see the face of the persons who had come into the bank and he had not described the clothes worn by the accused.
8.5 The prosecution has examined PW6 - Amarshibhai Punjabhai Jadav at Exh. 49 and the witness was working as the peon in State Bank of India, Adri branch on the date of the incident and was an injured and eyewitness to the incident. The witness has fully supported the case of the prosecution and during the cross-examination the witness has stated that after 04.00 pm they do not do any transactions with customers and if a person comes and finds that the bank is closed, they would leave within two minutes. On the date of the incident they had closed the strong room and other rooms and had locked all the cupboards. That no person is generally required to come after 06.00 pm to the bank and both the accused had come one after the other in the bank with their faces covered with Page 14 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined a cloth and they could not be recognized. The police did not inquire from him about the height of the accused or the description of the accused and immediately after the incident, they had gone out and after they came to the hospital they decided to file the complaint and his manager had filed the complaint. That both he and his manager had mobile phones and the police did not come to the place of incident on the date of the incident.
8.6 The prosecution has examined PW7 - Pratap Ranmalbhai Parmar at Exh. 50 and the witness is an injured and eyewitness to the incident. The witness has stated that on the date of the incident he was working as a Teacher in J.K. Baku Primary School and he had gone to the bank and he had witnessed the incident. During the cross-examination by the learned advocate for the accused the witness has stated that he had gone to collect information for opening a bank account and his account was opened on the next day. That his salary as a teacher was about Rs. 1000/- per month and he was earlier working as a daily wager in the bank. The salary as a daily Page 15 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined wager was being paid by him on vouchers and the bank manager has the authority to employ daily wages. That when the accused had entered into the bank, Amarshibhai was in his chamber and when he had gone to the hospital, he had spoken to the bank manager and the peon. That he was not called for any Test Identification Parade or to identify any of the accused.
8.7 The prosecution has examined PW8 - Praful Devshibhai at Exh. 52 and the witness is a neighbor of the bank. The witness has stated that on 16.01.2008, he was at his house and at around 06.00 pm to 07.00 pm he heard someone shouting and he ran and saw the Bank Manager - Sunil Dave bleeding from his chin and he had kept a handkerchief on his injury. He asked the Manager what had happened and the Manager told him that one person had come with a covered face had assaulted him with a knife. He asked him which side did they go and the Bank Manager told him that they had gone on the road adjacent to the bank. Six to seven persons including the witness ran behind them and they caught one person and brought him Page 16 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined to the bank. He had his face covered and peon - Amarshibhai was also injured and they were taken to the hospital. During the cross-examination by the learned advocate for the accused the witness has stated that the accused no. 1 was working in the bank and is known as Kalu. That he knows them as the Bank Manager would talk about them and he had seen the accused no. 1 coming and going in and out of the bank. That he was known to the accused no. 1 prior to the incident and Pratapbhai Ranmalbhai was also working as a daily wager in the bank. That on the date of the incident, Pratapbhai was present on his duty in the bank and after the person who was caught was taken to the bank he went away. That the police had recorded his statement on the next day and after the person was caught and taken to the bank, he had called the police and the police had come and taken the person away. 8.8 The prosecution has examined PW9 - Ukabhai Lakhabhai Barad at Exh. 53 and the witness has stated that his residence is near the State Bank of India, Adri Branch and on 16.01.2008 the incident had taken place in Page 17 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined the evening. That he was at his house and he heard some shouts and he came out and he saw the complainant shouting and he had blood in his hands. The complainant had told them that two persons had come with the intention of committing a robbery and had injured him with a knife and both the persons had ran away behind the Acacia Trees. That they went towards the Acacia Trees and caught one person and brought him to the bank. During the cross-examination by the learned advocate for the accused the witness has stated that he knows Amarshibhai and Pratapbhai and on the date of the incident Pratapbhai was working and he does not know whether Pratapbhai was working in the bank on the date of the incident. That he had taken a loan from the State Bank of India and the police had asked him about his name, business details etc. but he was never called by the Executive Magistrate for a Test Identification Parade. That no one had made a phone call to the police station regarding the incident in his presence.
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NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined 8.9 The prosecution has examined PW10 - Dr. Kishorkumar Raghuvirdas Hariyani at Exh. 55 and the witness was working as the Medical Officer in the Government Hospital at Veraval. The witness has stated that on 16.01.2008 at around 07.55 hours, Sunilbhai Manharbhai Dave had come to the hospital at 07.55 pm for treatment. The injured had stated that two persons with their faces covered armed with knives had come at about 06.30 pm to commit a robbery at the SBI, Adri Branch. The injured was brought by Kanjibhai Varjangbhai Solanki and on examination, there was an oblique incised wound on the left wrist medially and vertically with sharp clean-cut margins with size 1½ cm x 1/2 cm, one wound on the left hand dorsum incised wound size 1/4 x 1/4 which was superficial, an incised wound of 1/4 x 1/4 with clotted blood was on the right forearm middle 1/3rd and there was an oblique incised wound on the right side of the neck which was superficial skin deep and 1/2 cm x 1/4 cm in size with clotted blood. The injured was advised to consult a surgeon and was referred to Sanjeevani Trauma Hospital Page 19 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined for expert opinion. All the injuries could be sustained by a sharp cutting instrument. The medical certificate of Sunilbhai Manharlal Dave is produced at Exh. 56. At the same time and on the same day, Amarshibhai Punjabhai was brought for treatment by Kanabhai Varjangbhai Solanki and he had given the same history. On examination he had an incised wound on the right fronto parietal part of head 3 cm x 1/2 cm into skull deep which was superficial. The injury had sharp clean-cut margins and bleeding was present. The injured was advised to consult the General Surgeon at Sanjeevani Trauma Hospital and was referred for expert opinion. The injuries as such were simple but grievous if there would be any complications and could be sustained by a sharp cutting instrument. At the same time and on the same day Pratapbhai Ranmalbhai Parmar - a resident of Navapara had come for treatment and he was brought by Kanjibai Vajrangbhai Solanki and in the history he had stated that he was assaulted by two persons at SBI, Adri Branch and both the persons had their faces covered. On examination, the injured had sustained an oblique Page 20 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined incised wound on the left ring finger base near palm which was 1 cm x 1/4 cm in size. The margins were sharp and clear with clotted blood and an incised wound on the left middle finger on distal phalanx near the joint with clotted blood. The injury was 1/2 cm x 1/2 cm and it was superficial. The patient was advised to consult the General Surgeon at Sanjeevani Trauma Hospital. The injuries were simple but grievous if there was any fracture and the cause of injury was a sharp cutting weapon. The witness has produced the injury certificate of Amarshibhai Punjabhai at Exh. 57 and the injury certificate of Pratapbhai Ranmalbhai Parmar at Exh. 58. During the cross examination by the learned advocate for the accused, the witness has stated that there are a number of corrections in the case papers and the medical certificates in the dates and Sunilbhai was treated first. All the injured had come together and the injuries of Amarshibhai and Pratapbhai were simple. The injuries sustained by the injured could be accidental and could be self-inflicted also. During the time that the injured were at his hospital, no police officer had come to the Page 21 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined hospital and the case papers do not mention the time and date at which the injured were discharged from the hospital.
8.10 The prosecution has examined PW11 - Dr. Vinay Raghuvirdas Hariyani at Exh. 62 and the witness was working as a Medical Officer in Sanjeevani Hospital when Pratapsinh Ranmalbhai, Sunilkumar Manharlal and Amarshibhai Punjabai had come to the hospital with a referred chit of Civil Hospital, Veraval. On examination of Pratapsinh Ranmalbhai, he had stated that he was assaulted with a knife on the left hand at the SBI Adri Branch at 06.30 pm on 16.01.2008. On examination, there was a contused lacerated wound of 5 cm irregular with sharp margins between the second and the third finger and it was bleeding and a contused lacerated wound of 5 cm x 1 cm on the left hand middle finger. On taking an x-ray, there was no fracture and stitches were taken. The injuries could be sustained with a sharp and hard weapon and the medical certificate is produced at Exh. 63. On examining Sunilkumar Manharlal, he had stated that he was working Page 22 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined as a Bank Manager in the Adri Branch and he was injured on his left hand, right hand and right side of his neck on 16.01.2008 at around 06.00 pm. On examination, there was a CLW 7 cm x 2 cm on the elbow of the left hand 5 cm above the elbow and the margins were sharp. A sharp vertical abrasion on the right side of the neck 7 cm x 2 cm and a pointed abrasion on the middle of the right hand. On taking the x-ray, there was a fracture of the right hand and fracture of the left hand and the fractures were treated by the Orthopedic Surgeon. The medical certificate is produced at Exh. 64. On examining Amarshibhai Punjabai Jadhav, he had stated that he had sustained an injury on the head with a knife at the Adri SBI Branch and on examining he had a CLW 7 cm x 1 cm on the right side of the head in the middle portion and the margins were sharp. There were no injury below the bone and on x-ray there was no fracture. The medical certificate of Amarshibhai Punjabai Jadhav is produced at Exh. 65. During the cross examination by the learned advocate for the accused, the witness has stated that he had gone to the Government Hospital to check the Page 23 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined patients and he was called at around 07.30 pm by the doctor. That he reached the hospital in 5 to 10 minutes and at that time Dr. Haryani was treating the patients. That he had taken all the patients for treatment to his hospital with the refer note but he had not seen the treatment papers of the Government Hospital. In the certificate produced at Exh. 63, Exh. 64 and Exh. 65, the time at which the patients were admitted to the hospital is not written and he has not produced any such evidence that the patients were admitted for treatment at his hospital before the police. The certificates produced at Exh. 63 to Exh. 65 do not state when the patients were discharged.
8.11 The prosecution has examined PW12 - Popatbhai Somabhai Parmar at Exh. 67 and the witness is the Investigating Officer who has narrated in detail the entire procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that a knife with a black cover was seized in the presence of the panch witnesses and the knife that was seized did not have any blood stains Page 24 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined on it. The knife - Muddamal Article No. 11 with blood stains was found from the Acacia Trees and seized in the presence of the panch witnesses. The Muddamal seized during investigation was not sent to the FSL for investigation as he was transferred from Somnath Marine Police Station to Veraval City Police Station and the Muddamal was kept at the police station. That he did not discuss about sending the Muddamal to the FSL with any of his police personnel. During investigation, there was nothing on record to suggest that any robbery or dacoity had taken place and during investigation it was found that all the three injured were injured in an assault. The complaint was filed by Sunilbhai Manharlal Dave and the person whose blood was taken was Anilkumar Manharlal Dave but the letter did not bear the signature of any police officer. No injuries were found on the accused and the panch witnesses were brought by his writer but he does not know where they were called from. That he did not record the statements of any persons at Chotila Guest House and he did not find any evidence about the accused halting at Chotila or Rajkot Page 25 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined Guest House. That no Test Identification Parade of the accused was conducted during the entire investigation.
9. On reappreciation of the entire evidence of the prosecution, as per the complaint of the complainant, while he was sitting in the office along with Peon - Amarshibhai Punjabbhai Jadhav and Pratapbhai Ranmalbhai Parmar, two persons had entered into the bank with their face covered and had assaulted them. The complainant has stated that Pratapbhai Ranmalbhai had come to inquire about the details of his account with the bank but in the evidence it has come on record that Pratapbhai Ranmalbhai Parmar was a daily wager in the bank and the bank hours are up to 05.15 pm and there was no reason for any person to come for inquiry about opening a bank account after 06.30 pm. All the witnesses have stated that the accused had come with their faces covered and in the complaint, the complainant has stated that after the neighbours had caught the accused no. 1 and brought him to the bank, he came to know that his name was Kalu @ Hasmukh Manjibhai Kodi but in the evidence, it has come on record Page 26 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined that the accused no. 1 was doing book binding work in the bank but for reasons best known to the complainant, he has not stated that he was known to the accused no. 1 prior to the incident. What has emerged on record is that after the accused had ran away, the village people went and brought the accused no. 1 back but there is no iota of evidence that it was the same person who had entered into the bank as there is no description of the persons who had entered into the bank given by the complainant or the other two witnesses. The description of the clothes worn by the accused at the time of the incident is also not given by the complainant or the witnesses and as per the evidence, after the incident had occurred, one knife with a black cover was found from the bank and one knife was found from outside of the bank in the Acacia Trees. The knife which was found from inside the bank did not have any blood stains and the knife which was found from outside in the the Acacia Trees had blood stains on them but in the deposition of the Investigating Officer, it has come on record that the muddamal was not sent to the FSL for investigation. Hence, Page 27 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined there is no evidence that the knife that was recovered from outside with the blood stains was the one which was used by any of the accused in the incident. In the evidence that has emerged on record, the complainant has stated that he and Amarshibhai Punjabhai Jadhav and Pratapbhai Ranmalbhai Parmar were taken to the hospital at Adri village for treatment and from there they were taken to Veraval Government Hospital but no treatment papers of Adri Hospital have been produced on record. In the medical papers of Veraval Government Hospital and Sanjeevani Hospital, the complainant and both the eyewitnesses have not named the persons who had assaulted them and they have merely stated that they were assaulted by two people who had their faces covered. There is no iota of evidence that the accused were the same persons as the Test Identification Parade has not been conducted by the Investigating Officer during investigation and there are major discrepancies in the medical certificates of both the Government Hospital, Veraval and Sanjeevani Hospital. There are major contradictions in the depositions of the Page 28 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025 NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined witnesses which are fatal to the case of the prosecution and the learned Trial Court has discussed the entire evidence in detail.
10. In view of the settled position of law in the decisions of Chandrappa (supra), the learned Trial 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 Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
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NEUTRAL CITATION R/CR.A/825/2011 JUDGMENT DATED: 22/04/2025 undefined
11. The impugned judgement and order of acquittal passed by the learned 3rd Additional Sessions Judge, Veraval in Sessions Case No. 28/2008 on 28.02.2011, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 30 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:52 IST 2025