Gujarat High Court
Iliyash Ishakji Khatri vs State Of Gujarat on 20 March, 2026
NEUTRAL CITATION
R/CR.RA/576/2006 JUDGMENT DATED: 20/03/2026
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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
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Approved for Reporting Yes No
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ILIYASH ISHAKJI KHATRI
Versus
STATE OF GUJARAT & ORS.
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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
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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
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