Holding

The High Court held that the Sessions Judge had not committed any error in appreciating the evidence and, therefore, the revision under Section 401 CrPC was dismissed.

Summary

The applicant, an eyewitness and victim, filed a criminal revision challenging the acquittal of accused No.2‑14 by the Additional Sessions Judge in a case arising from communal riots on 03‑03‑2002. The applicant alleged that the trial court erred in disregarding his eyewitness testimony and other documentary evidence linking the accused to the offence of rioting and unlawful assembly. The respondents contended that the evidence was unreliable, witnesses turned hostile, and there was no direct proof of the accused's participation. The High Court examined the evidence, noting inconsistencies, lack of personal knowledge of key witnesses, and the benefit of doubt principle, and concluded that the trial court had correctly appreciated the evidence. It held that Section 401 CrPC revision jurisdiction does not permit re‑appreciation of evidence absent a manifest error or miscarriage of justice. Consequently, the revision application was dismissed, upholding the acquittals.

Issues considered

The trial court erred in its appreciation of the eyewitness and documentary evidence?
Whether the revision under Section 401 of the Code of Criminal Procedure can be entertained in the absence of a manifest error or miscarriage of justice?
Whether the evidence presented was sufficient to overcome the benefit of doubt and convict the accused?

Legislation cited

Bombay Police Acts. 135
Code of Criminal Procedures. 313, s. 401
Indian Penal Code, 1860s. 143, s. 147, s. 148, s. 149, s. 153, s. 186, s. 187, s. 295, s. 307, s. 325, s. 427, s. 436

Subjects

criminal revisionSection 401 CrPCbenefit of doubteyewitness testimonyriotingunlawful assemblyevidence appraisal

Judgment

R/CR.RA/576/2006 JUDGMENT DATED: 20/03/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 576 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

============================================
Approved for Reporting Yes No

============================================
ILIYASH ISHAKJI KHATRI
Versus
STATE OF GUJARAT & ORS.
============================================
Appearance:
MR MM TIRMIZI(1117) for the Applicant(s) No. 1
MR BOMI H SETHNA(5864) for the Respondent(s) No.
10,11,12,13,14,2,3,4,5,6,7,9
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 8
============================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

Date : 20/03/2026

ORAL JUDGMENT

1) By way of present criminal revision application the applicant has

assailed the order dated 23.06.2006, passed in Sessions Case

No.63 of 2003, by the learned Additional Sessions Judge, Fast

Track Court No.3, Camp Ankleshwar, Bharuch, (who shall

hereinafter be referred to as “learned Sessions Judge”),

whereby, the learned Sessions Judge has been pleased to acquit

the respondents – accused nos.2 to 14, from the charges

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levelled against them.

2) Heard learned Advocate Mr. M. M. Tirmizi for the applicant,

learned Advocate Mr. B. H. Sethna, for respondent nos. 2 to 7, 9

to 14 and learned APP Mr. Rohan Raval, for the respondent –

State.

3) The brief facts of the case are that the applicant is an eyewitness

and one of the victim of the offence dated 03.03.2002 registered

as C. R. No.I-31 of 2002 with Zaghadiya Police Station for the

offences punishable under Sections 143, 147, 148, 149, 295,

436 153(A), 307, 325, 427, 186 and 187 of the Indian Penal

Code and Section 135 of the BP Act inter alia alleging that the

accused persons named in the FIR had committed the alleged

offences. That the charge-sheet was filed before the learned

JMFC, Zaghadia. That the learned Magistrate has committed the

case to the learned Additional Sessions Judge, Fast Track Court

No.3, Bharuch as Sessions Case No.63 of 2003, wherein, vide

judgment and order dated 23.06.2006 all the accused came to

be acquitted from the charges levelled against them. Being

aggrieved with the said order the applicant has filed the present

revision application.

4) Learned Advocate Mr. M. M. Tirmizi for the applicant has

submitted that the impugned order is bad in the law and

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contrary to the facts of the case and the learned trial Court has

committed error in appreciating the evidence, more particularly

evidence of the complainant. He has further submitted that

though the complainant has categorically gave the names of

accused persons who had participated in the alleged offence and

specifically stated about their involvement in commission of the

offence, the learned Sessions Judge has ignored the allegations

levelled in the complaint at Exhibit 66. The role of accused nos.2

to 14 are specifically established on record though the learned

trial Court has committed error in acquitting them. The oral

evidence of the complainant at Exhibit 65 is eye witness and he

has categorically stated the names of accused persons who

participated and identified them before the Court. Even the

police witnesses are also examined and they have supported the

case of prosecution. The involvement of the accused persons is

proved. Looking to the aforesaid evidence the participation and

forming unlawful assembly is proved on record. The panchnama

and CDs clearly reveal that huge damage was done to the

properties belong to Muslim Community in Bharuch. The

panchnama reflects that damage was done by the accused

persons. Even the Doctor examined has also stated that the

injured persons also taken the treatment. Though the learned

Sessions Judge has materially erred in appreciating the evidence

on record. Hence, he has requested to allow the present revision

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application and convict the respondents in accordance with law.

So far scope of revision application is concerned learned

Advocate has relied upon the judgments of the Hon’ble Apex

Court which are as under :-

(1) Pakalapati Narayana Gajapathi Raju Vs Bonapalli

Peda Appadu, reported in 1975 LawSuit(SC)230;

(2) Kaptan Singh Vs. State of Madhya Pradesh, reported

in 1997 LawSuit(SC) 702;

(3) Harikisan Vs. State of Maharashtra, reported in 1962

LawSuit(SC) 34;

(4) K. Chinnaswamy Reddy Vs. State of Andhra

Pradesh, reported in 1962 LawSuit(SC) 220;

(5) Khetra Basi Samal Vs. State of Orissa, reported in

1969 LawSuit(SC) 276;

(6) D Stephens Vs. Nosibolla, reported in 1951

LawSuit(SC) 14;

(7) Mahendra Pratap Singh Vs. Sarju Singh, reported in

1967 LawSuit(SC) 310.

By relying on the above judgments the learned Advocate

for the applicant has submitted that this Hon’ble Court has

power and private parties have locus standi to challenge the

impugned judgment by way of filing a revision application.

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5) Learned Advocate Mr. B. H. Sethna, for the respondent nos. 2 to

7, 9 to 14, has opposed the present application and submitted

that the learned Sessions Judge has not committed any error

more particularly considering the delay in the FIR and there is

no direct evidence which suggests involvement of the

respondents even the complainant having no personal

knowledge about the involvement of the respondents. All the

witnesses are found unreliable. All the interested witnesses are

also examined. Mere incident took place and damage was

caused but no evidence is there as to who had caused the

damage and there is glaring infirmity and contradiction in the

evidence of witnesses who are planted and unreliable. Hence, he

has requested to dismiss the present revision application.

6) Having heard the learned Advocates for the respective parties

and perusing the record and proceedings it appears that on

03.03.2002, post Godhra Riots, the alleged incident took place

and the respondent no.2 Nilesh Solanki has incited the mob of

Hindu Community against Muslim Community, pursuant to which

mob made assault to the residents of Muslim Community and set

on fire their residence and belongings. In this regard the

complaint came to be lodged. Further it is alleged that while

residence are set on fire at that time the accused no.11 who was

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holding the post of Vice-President of Taluka Panchayat,

Jaghadiya, has not facilitated fire extinguisher and thereby

committed offence of rioting by hatching unlawful assembly with

common object they had made assault. In order to prove the

said incident the prosecution has examined as many as 18

witnesses and produced 17 documentary evidence on record.

After perusing the evidence of prosecution, the statements of

the accused under Section 313 of the Code of Criminal

Procedure were recorded. Thereafter, the learned Sessions

Judge has been pleased to acquit the accused persons by

extending benefit of doubt. The panch witnesses were turned

hostile. If we peruse the evidence of the complainant at Exhibit

65, he has not completely supported his version. In the cross-

examination he failed to identify the accused persons. The Court

has not believed the evidence of the said witness trustworthy.

The Doctor Suketu S. Dave, examined at Exhibit 56, has stated

that one Ibrahim sustained injury in the alleged riots but he

came for the treatment after two days. The witness no.5

Fazalhusain Sayed is a hearsay witness having no personal

knowledge as to who had damaged the property. His residential

home was destroyed but he remained silent about who had

damaged his property. The witness no.6 Kayamuddin Shaikh has

stated that at the time of incident a mob of 200 people came

with stones and the residences of muslim community were set

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on fire and ran away from the spot and returned after three days

and except this he has not stated about involvement. The

witness no.7 Mohammadhusain Ansari has also stated on the

same line as of the witness no.6, that a mob came and have

caused damage of Rs.60,000/- but he has not specifically stated

about involvement of the accused and only stated that the mob

was shouting and assaulted muslim people. The Police Constable

Dilipbhai Budhalal after 15 days assumed his duty and he is also

not aware of any incident and has not stated anything about the

involvement of the accused. The witness no.14 Narendra

Natwarbhai, Police Constable, has stated about the incident and

tried to control the mob of 100 people armed with deadly

weapons and called the PSI Shaikh Mayoddin Shaikh, and fired

three rounds and dispersed the mob but no involvement of the

accused by name is mentioned.

7) If we consider the evidence as per the case of revisionist eye-

witness Iliyash Ishakji Khatri examined at Exhibit 33, has stated

that the mob consisting Dilip Modi, Mukesh Solanki, Nilesh

Chaman, Rakeshbhai Dahyabhai, Hitesh Patel were present. He

has identified five accused who were present in the mob but he

remained silent about their roles and overt act. The learned trial

Court has considered the fact that there presence may be

natural due to curiosity more particularly when the said witness

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returned home at that time refrigerator, utensils and cupboards

were safe and once again he returned on 5th from Rajpardi his

belongings were stolen. Hence, perusing the said evidence it

appears that as to whether his belongings were stolen on 3 rd or

4th date is not established on record as the alleged incident took

place on 03.03.2002 and on next day his belongings were safe

as per his own version. Even he has not stated anything to the

police on next day. He has explained the delay in lodging the

complaint as he approached DSP and thereafter he has

registered the complaint but initially he has given names of

three accused in the inquiry and in deposition he has given

names of five accused. There is even defence able to prove that

the son of the said witness has solemnized the marriage with

Hindu girl the inimical relationship between two communities

one complaint was also lodged. Even he knows other witnesses

Bachusha Diwan and Gulamnabi Khatri who are interested

witnesses due to the reason that they were running business in

rented shops which got vacated by their landlords or

encroachment notice came to be issued. Hence, for reallotment

of the shops they are pressurizing the landlords and said fact

emerged from the record.

8) If for the sake of arguments we accept that three accused

namely Yogeshbhai, Mukeshbhai and Rakeshbhai hurled abusive

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language and shouted that RDX is traced out from Rajpardi and

shouting against muslim community is not enough to connect

the accused persons with the offence. Considering the time gap

and in absence of continuity and direct evidence to connect with

the offence. Suspicion, however strong it may be, cannot take

the place of proof beyond reasonable doubt. The other witnesses

who claimed themselves as eye-witnesses had turned hostile

and against them offences are registered and grievance is there.

It is needless to say that bad character is irrelevant however

enmity or grudge is required to be considered. The witness no.8

Ibrahimsha Diwan is also a hearsay witness having no personal

knowledge. Even in evidence also improvement is found and

learned Sessions Judge has also considered the said aspect.

Even prior to the complaint, one application came to be given to

DSP wherein no names of accused were given. The learned

Sessions Judge has taken into consideration that the names of

accused persons are not given in the complaint and the charge-

sheet is not filed against whom such names were given. During

the course of trial it clearly reveals that witnesses tried to

improve their version to involve more persons. Considering the

time gap in the alleged incident and lodging of the complaint and

thereafter more particularly no specific overt act is stated and

complaint was filed against the mob, it appears that the learned

Sessions Judge has not committed any error in appreciating the

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evidence and even we peruse the CDs at Exhibits 86 to 89,

wherein, also no evidence is there which suggests the

involvement of the accused. In view of above the learned

Sessions Judge has properly appreciated the evidence. It is

needless to say that when two possible views emerge from the

evidence of the prosecution then view favouring the accused is

required to be given weightage.

9) Now while exercising jurisdiction under Section 401 of the Code

is discretionary and it is required to be used only in exceptional

cases where glaring defect in the procedure and manifest error

of law or there has been miscarriage of justice. Here no any

such error is pointed out or no perversity is found from the

reasons assigned by the learned Sessions Judge. Hence, the

learned Sessions Judge has not committed any error in coming

to the conclusion. Even in revisional jurisdiction the Court has to

be more careful in reappreciating the fact or evidence as

revisional jurisdiction itself does not provide reappreciation of

evidence and considering the limited jurisdiction the Court

cannot act as Appellate Court. Hence, no case is made out for

interference with the impugned findings in light of scope of the

scope of revision laid down by the Hon’ble Apex Court in Amit

Kapoor Vs. Ramesh Chander, reported in 2012 (9) SCC 460.

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10) In view of above, the present Criminal Revision Application

stands dismissed. Record and proceedings, if any, be sent back

to the concerned Court forthwith.

(HASMUKH D. SUTHAR,J)

ANKIT JANSARI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANKIT YOGESHBHAI JANSARI(HCW0109), ENGLISH STENOGRAPHER GRADE I, at High Court of Gujarat on 23/03/2026 18:31:20

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