DINESHBHAI HARCHANDJI MALIversusSTATE 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.



                            Page 1 of 14
      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 of
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 had
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 the
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 the
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.




                                Page 11 of 14
      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.

                                         Page 12 of 14
      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


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




                                                 Page 14 of 14