DILIPSINH @ DAKO KISHORSINH RATHODversusSTATE OF GUJARAT

   R/CR.RA/135/2019                               JUDGMENT DATED: 24/04/2026




IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
            SUBORDINATE COURT) NO. 135 of 2019


FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================
        Approved for Reporting          Yes     No
                                                 √
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          DILIPSINH @ DAKO KISHORSINH RATHOD & ORS.
                              Versus
                       STATE OF GUJARAT
==========================================================
Appearance:
MR MOHDSHAFI SHAIKH(6544) for the Applicant(s) No. 1,2,3,4,5,6
MR DIVYANG A JOSHI for MR KISHAN PRAJAPATI(7074) for the Applicant(s) No.
1,2,3,4,5,6
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 24/04/2026
                               JUDGMENT

       RULE. Learned APP waives service of notice of Rule for and on
behalf of the respondent – State of Gujarat. With the consent of learned
advocates appearing for respective parties, present application is taken
up for final hearing today.

[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 applicants have prayed for quashing and setting aside of
the judgment and order dated 31.08.2018 passed by the learned
Principal Sessions Judge, Ahmedabad (Rural), whereby the learned
Sessions Judge dismissed the application Exh.5 filed in Sessions Case
No.122 of 2017 under Section 227 of the CrPC seeking discharge.



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   R/CR.RA/135/2019                              JUDGMENT DATED: 24/04/2026




[2.0] Heard learned advocate Mr. Divyang A. Joshi for learned
advocate Mr. Kishan Prajapati for the applicant and learned APP for
respondent – State of Gujarat.

[3.0] It is the case of the applicants that an FIR being II-CR No.3097 of
2015 came to be lodged against the present applicants with
Shahibaug Police Station on 21.04.2015 alleging that in the marriage
of son of one Kishoresinh Rathod, who is listed bootlegger in
Shahibaug area, there was reception on 16.02.2015 in Cantonment
Hall and in the said function, present applicants – accused open fired
in air from revolver and pistol and therefore, FIR for the offences
under Sections 307, 201 and 114 of the Indian Penal Code, 1860 (for
short “IPC”) and sections 3, 25(1)(B)(A) of the Arms Act. After carrying
out investigation, the Investigating Officer filed the charge-sheet and
as the case was sessions triable, it came to be committed to the Court
of learned Sessions Judge and numbered as Sessions Case No.122 of
2017. The applicants herein filed an application Exh.5 under Section
227 of the CrPC seeking discharge which came to be dismissed by the
learned Additional Sessions Judge vide the impugned judgment and
order. Hence, being aggrieved and dissatisfied, the applicant has
preferred the present revision application.

[4.0] Having heard the learned advocates appearing for the
respective parties and perusing the record, it appears that discharge
application Exh.5 under Section 227 of the CrPC came to be filed only
on the ground that the offence under Section 307 of the IPC is not
made out though the concerned Investigating Officer has filed the
charge-sheet under Section 307 of the IPC. Perusing the record, it
further appears that offence was registered for the offence under
Sections 3, 25(1)(B)(A) of the Arms Act alongwith section 307 and


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   R/CR.RA/135/2019                              JUDGMENT DATED: 24/04/2026




allied offences of IPC. It is the case of the applicants that accused No.3
was having the license of arm and hence, provisions of Arms Act are
not applicable. It transpires from the record that while rejecting the
discharge application filed under Section 227 of the CrPC, the learned
Sessions Judge swayed away with the fact that the applicant No.3 –
Kishorsinh @ Langdo Lalsinh Rathod who is a bootlegger and having
criminal antecedents of prohibition case, opened fire in air and
thereafter, many other persons had made firing in air in marriage
procession. It is needless to say that merely opening fire in air in
pursuance of customary process of Darbar community without there
being any intention to hurt anyone, this Court is of considered opinion
that case under Section 307 of the IPC is not made out and to make
out a case under Section 307 of the IPC, injury is not required but
intention is required to be established from the attending
circumstances and if we consider the surrounding circumstances
amongst others, the act on the part of accused is not enough to infer
the intention. If the allegations are considered, it appears that on
13.02.2015, marriage ceremony of the son of accused No.3 was
scheduled and at that time, the accused No.3 was having Arms License
No.7/202 issued from Mansa and he opened fire in air. In this regard
the offence was registered. Hence, considering the fact that it was
marriage procession and without intention to cause injury to anyone,
no offence is made out under Section 307 of the IPC. Merely under
anticipation that there was possibility to cause injury to anyone in case
of misfire, is nothing but only presumption and assumption which is
also insufficient to put the accused on trial, there must be some legal
evidence based on which the accused may be put on trial and without
any intention, only to open fire in air without any intention to cause
injury does not amount to attempt to murder. In view of above,



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    R/CR.RA/135/2019                                                           JUDGMENT DATED: 24/04/2026




present revision application deserves consideration qua offence under
Section 307 of the IPC.


[5.0] In wake of aforesaid conspectus, present revision application is
partly allowed. Impugned order dated 31.08.2018 passed by the
learned Principal Sessions Judge, Ahmedabad (Rural) passed below
application Exh.5 in Sessions Case No.122 of 2017 is hereby quashed
and set aside qua offence under Section 307 of the IPC only. It is made
clear that the offence under the provisions of the Arms Act as well as
other IPC offences remain. Rule is hereby made absolute to the
aforesaid extent only. Interim relief granted earlier stands vacated
forthwith. Record & Proceedings, if any, be returned back to the
concerned Court.


                                                                                      Sd/-
                                                                    (HASMUKH D. SUTHAR, J.)
Ajay

 Original copy of this order has been signed by the Hon'ble Judge.
 Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 24/04/2026 15:39:41




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