DINESHBHAI HARCHANDJI MALI v. STATE OF GUJARAT

R/CR.RA/117/2008 ORDER DATED: 18/02/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 117 of 2008 ====================================================== DINESHBHAI HARCHANDJI MALI & ORS.

Versus

STATE OF GUJARAT

====================================================== Appearance:

MR RAJESH K KANANI(2157) for the Applicant(s) No. 1,2,3 ROHAN RAVAL, APP for the Respondent(s) No. 1 ====================================================== CORAM:HONOURABLE MR.JUSTICE P. M. RAVAL

Date : 18/02/2026

ORAL ORDER

1. Rule fixed forthwith. Learned APP waives service of rule on behalf of the respondent – State.

2. The petitioner herein – original accused had preferred a Criminal Revision Application under the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023) challenging the judgment and order dated 16.02.2008 passed by the learned Sessions Judge, Fast Track Court No. 2, Deesa, whereby the learned Judge dismissed Criminal Appeal No. 17 of 2003 and thereby confirmed the judgment and order of conviction dated 06.05.2003 passed by the learned Judicial Magistrate First Class, 1st Court, Deesa in Criminal Case No. 4163 of 2000.

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R/CR.RA/117/2008 ORDER DATED: 18/02/2026 3. The case of the prosecution in nutshell is that:

3.1 Jaykishan Keshavdas Fulvani, the complainant, on 04.05.2000 lodged an FIR before the Deesa Police Station under Sections 394 and 114 of the IPC read with Section 135 of the Bombay Police Act, being Deesa Police Station C.R. No.

I–95 of 2000, inter alia contending that at about 10:00 p.m. on the date of the incident i.e. 04.05.2000, the complainant closed his shop and was going home along with the income of the day amounting to Rs.53,000/-; that he had placed the currency notes of the aforesaid amount in one cotton bag, and the cotton bag along with the currency was placed on one pouch of black colour with chain; that along with the money, he was going home by Vadi Road via Terminala; that when he arrived near Terminala, he was caught hold of by one man;

that the complainant, therefore, caught hold of the shirt of the said man; the man was accompanied by two other persons, the first man put a knife at his shoulder and the other two persons snatched away the pouch containing the money from the hand of the complainant; that the complainant started shouting and was also scuffling with the assailants; that in doing so, he sustained injury on his throat; that while the assailants were running away, the shirt of the assailant came in the hand of the complainant; that his wrist watch had also fallen and broken down so also the knife and one chappal.

3.2 Hearing the shouts of the complainant, one Shankarbhai Page 2 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 Nemchandbhai Bhati, Devising Nemchandbhai Bhati and Mohanbhai Kanabhai Sankhala and others came to the place of occurrence, and the assailants ran away with the money.

The complainant described that the man who caused the injury with the knife was thin man of about 5 feet height and had put on pent of black colour and and shirt of light green colour and was of about 25 years of age. The description of other two persons is also given in the complaint.

4. After completion of investigation and filing of the charge- sheet before the concerned Jurisdictional Magistrate, and after conclusion of the trial, the petitioner herein came to be convicted vide judgment and order dated 06.05.2003. The said judgment and order of conviction was thereafter confirmed by the learned Sessions Judge vide judgment and order dated 16.02.2008. Hence, the present petition.

5. Learned advocate Mr. R.K. Kanani submits that:

5.1 The learned Judge has erred in not considering the fact that the evidence adduced and produced before the trial Court is not free from suspicion, because on the point of identification parade, the Mamlatdar Dosanbhai Rajabhai Bukhi says on oath that at the time of identification parade, four persons were made to stand in a queue, whereas the complainant Jaykishan Keshavdas states that when he went in the room, 11 persons of identical look were made to stand Page 3 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 in a row, whereas the witness Devisinh Nemchandsinh Rajput states on oath that the police made to stand about 10-12 persons in row. Thus, on the point of identification parade, there is inconsistency, so far as number of persons participating in the parade is concerned.

5.2 The learned Judge has committed an error in not considering the fact that on the point of light at the place o f occurrence, the evidence shows that there is a light pole and the light was on, hence there was no necessity of battery, according to the complainant. Whereas, witness Devisinh@ Dilipsinh Rajput says on oath that there was darkness at the place of occurrence, and therefore, he ran with a torch. He has also admitted that he could see the assailants in light of the torch, whereas the witness Shankarbhai Nemchandbhai Rajput has admitted in his deposition that at Tarminala point of occurrence, at night, there is always darkness, and according to him, at the time of occurrence, the torch was with him and not with Devisinh. He has further admitted that if a person is acquainted with the area, he would always come with a torch.

5.3 The learned Judge has also committed error in not considering the fact that the complainant says in his deposition that he does not know any of the witnesses. But, it is in the evidence of the witness Devisinh that the complainant had shouted the name of his brother Page 4 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 Deepakbhai. This, therefore, shows that they were known to each other.

5.4 The learned Judge has erred in not considering the fact that there is a contradiction and inconsistency on the point as to who was carrying the torch at the time of occurrence.

According to witness Devisinh, he was carrying the torch, whereas according to witness Deepakbhai, he was carrying the torch, whereas the witness Shankarbhai Rajput says that he was having the torch and not his brother Devisinh. Thus, though there was only one torch, the witnesses differ as to who was carrying the torch at the relevant time. This creates a serious doubt about the veracity of the testimony of the witnesses on this point, because though there was one torch, there were more than one person claiming that it was with him at the relevant time.

5.5 The learned Judge has committed a grave error in not considering the fact that the complainant has admitted in his deposition that when the three witnesses Shankarbhai, Prakashbhai and Mohanbhai came on the place of occurrence, the assailants had run away.

5.6 The learned Judge has also not appreciated the evidence that witness Shankarbhai Rajput also stated in his deposition that when they went on the place of occurrence, all the three persons had run away with the pouch of the complainant. It Page 5 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 is, therefore, abundantly clear that these three witnesses could not have seen the face of the assailants.

5.7 The learned Judge has committed a grave error in not considering the fact that the witness Shankarbhai Rajput has categorically admitted that they had seen the assailants from the back, and therefore, they do not know whether they h ad beard or moustache. Under these circumstances, it is crystal clear that these witnesses could not have identified the assailants and the evidence of that point is absolutely, weak, unreliable and untrustworthy.

5.8 The learned Judge has committed an error in not considering the fact that it is in the evidence that the photographs of the accused were published in the newspaper prior to the identification parade, and therefore, it is not surprising that they can be easily identified by the witnesses though they had no occasion to see them at the time of occurrence.

5.9 The learned Judge has also erred in not considering the fact that Devisinh stated in his evidence in last paragraph of his deposition that he has seen the assailants running from distance, obviously therefore, they could not have identified the assailants without the help of the newspaper.

5.10 The learned Judge has also erred in not considering Page 6 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 the fact that the identification parade is held after four months, which raises a serious doubt about its veracity, and this delay in identification parade itself is fatal for the prosecution.

5.11 The learned Judge has erred in not considering the fact that so far as the medical evidence is concerned, Dr.

Nareshbhai Popatbhai Sutariya has stated in his deposition clearly that the injury, which was caused to the complainant could not have been caused by the knife. Not only that, but according to him, there were two injuries caused by two separate weapons, whereas the case of the prosecution is only of one injury.

5.12 The learned Judge has grossly erred in not considering the fact that a careful study of the testimony of the Investigating Officer – kalusinh Bhatinh Kant clearly shows that he had arrested the accused without any evidence worth the name. In his deposition, he states right in the beginning of his deposition that he had arrested the accused only upon the information. He does not say as to what evidence, he collected to arrest the accused.

6. Per contra, learned APP Mr. Rohan Raval submits that the petitioners are before this Court against concurrent findings of fact recorded by both the Courts below. It is submitted that the jurisdiction of this Court in exercise of its Page 7 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 revisional powers is limited and that re-appreciation of evidence is not permissible. It is further contended that no palpable error apparent on the face of the record has been pointed out by the learned advocate for the petitioners so as to warrant interference by this Court. Hence, has argued to reject the present Revision Application.

7. At the outset, the judgment in the case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123 is required to be considered wherein paragraph 14 Hon’ble Supreme Court has held as under.

"14.... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any of relevant material or there is palpable misreading of records, the revisional Court is not justified in setting aside the order, merely because another view is possible. The revisional Court is not meant it to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based Page 8 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction."

8. Thus, at the outset, it is apt to mention that this Court is not supposed to exercise its revisional jurisdiction like an Appellate Court, since this Court has only to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order passed, and as to the regularity of the proceedings of such Courts. Thus, the object of the provision is to correct a patent error of jurisdiction or law, and the revisional Court does not dwell at length upon the facts and evidence of t he case to reverse the findings recorded by the Courts below.

9. It would also be apt to refer to and rely upon the decision of the Hon’ble Supreme Court in Duli Chand v. Delhi Administration, reported in (1975) 4 SCC 649, wherein it has been observed as under:

“The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the Page 9 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

10. Further, in the case of Amit Kapoor v. Ramesh Chander, reported in (2012) 9 SCC 460, in paragraph 18 has held as under:

"18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding.

Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases."

11. Tested on the anvil of the principles laid down in the aforesaid judgments, and also considering the judgment of the First Appellate Court, it transpires that the learned First Appellate Court has merely discussed the judgments relied Page 10 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 upon by the appellant – original accused – however, it has not assigned any reasons either for believing or disbelieving the witnesses.

11.1 Secondly, it is an admitted fact that the FIR does not disclose the names of the accused persons. It is also an admitted position that the complainant could not have seen the present petitioners – original accused – at the time of th e alleged commission of robbery, inasmuch as the Trial Court has not properly re-appreciated the evidence of the complainant, who has categorically deposed that he was caught hold of by the collar from behind. Therefore, the complainant had no opportunity to see the accused persons.

12. Be that as it may, the fact also remains that the Investigating Officer, examined as PW–20 at Exh.53, namely Kalusinh Bhatisinh Kant , has admitted in his cross- examination that on 29.09.2000, Friday, a news item was published on page 8 of a local newspaper circulated in District Banaskantha, wherein the Investigating Officer along with his staff members, PSI Rabari, PSI Vyas and other police personnel, and the three accused persons photograph was published. He has further admitted that thereafter, on 30.09.2000, a Test Identification Parade was conducted at the office of the Mamlatdar.

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R/CR.RA/117/2008 ORDER DATED: 18/02/2026 13. In the case of Ravi v. State, reported in (2007) 15 SCC 372, in paragraph 17 has held as under:

17.Certain facts are not in dispute. The test identification parade was held after ten days. It is also not in dispute that the photographs of the accused were taken at the police station. The investigation officer allowed them to be published. Photographs of the appellant and the said Udayakumar were not only published, according to the prosecution witnesses, they were shown to be the accused in the aforementioned crime. Some of them admittedly were aware of the said publication. The purported test identification parade which was held ten days thereafter, in our opinion, looses all significance, in the aforementioned fact situation.

14. From the aforesaid principles, when the Investigating Officer himself has allowed the photographs of the accused persons to be published in the newspaper, even if in the present case the witnesses have denied having seen such newspaper publication, it would not make any difference, inasmuch as the local newspaper had published the photographs of the accused persons along with the Investigating Officer. Such publication renders the subsequent identification insignificant, and therefore, a conviction based on such vague identification cannot be relied upon for convicting the accused.

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R/CR.RA/117/2008 ORDER DATED: 18/02/2026 15. Thus, from the aforesaid facts, it appears that the First Appellate Court has not re-appreciated the evidence in its true perspective. Merely because the witness Shankarbhai has denied having seen the newspaper publication would not cure the defect, particularly when, except for the Test Identification Parade, there is no other reliable evidence to establish that the present accused persons had committed the robbery, that too at about 10:00 p.m. at night. Under the circumstances, the Test Identification Parade pales into insignificance.

16. It is also required to be noted that the Test Identification Parade has not been carried out by mixing the accused persons with other persons of similar age, body structure and appearance in proper proportion. This aspect is borne out from the TI panchnama as well as from the deposition of the Mamlatdar at Exh.9, PW-1 Shri D.R. Mukhi, who had admittedly conducted the Test Identification Parade in the present case for the first time in his career.

17. In view of the aforesaid facts and circumstances and for the reasons stated hereinabove, the present Revision Application is allowed.

18. The judgment and order dated 06.05.2003 passed by the learned Judicial Magistrate First Class, 1st Court, Deesa in Criminal Case No. 4163 of 2000, which came to be upheld by Page 13 of 14 R/CR.RA/117/2008 ORDER DATED: 18/02/2026 the learned Additional Sessions Judge, Fast Track Court No.

2, Deesa vide judgment and order dated 16.02.2008 in Criminal Appeal No. 17 of 2003, are hereby quashed and set aside.

19. The applicants are on bail. Their bail bonds shall stand cancelled and the sureties shall stand discharged. The applicants are acquitted by giving them the benefit of doubt for the offence punishable under Section 394 read with Section 114 of the IPC. The conviction and sentence are hereby quashed and set aside. The fine amount of Rs. 5,000/-, shall be refunded to the original accused after due verification and after the appeal period is over. Rule is made absolute to the aforesaid extent.

20. Record and Proceedings be sent back to the trial Court forthwith.

(P. M. RAVAL, J)

MOHD SAIF ULLAH

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Original copy of this order has been signed by the Hon'ble Judge.

Digitally signed by: MOHD SAIF ULLAH(HC02372), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 23/02/2026 18:44:12