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Gujarat High Court · body

2025 DIGILAW 530 (GUJ)

State Of Gujarat v. Shailesh Jamnadas Tatmiya

2025-06-23

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant-State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned 6 th (Ad-hoc) Additional Sessions Judge, Junagadh (hereinafter referred to as "the learned trial Court") in Sessions Case No. 63 of 2004 on 30.09.2011, whereby, the learned trial Court has acquitted the respondent for the offence punishable under Sections 363 , 366 and 506(2) of the INDIAN PENAL CODE , 1860 (hereafter referred to as "IPC" for short.) and Section 135 of the GUJARAT POLICE ACT . 1.1 The respondent is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1 On 10.09.2000, the complainant was going towards her residence on her Scooty motorcycle after appearing for a test in Alpha Classes at around 12:15 Hrs and while she was on the Mangnath Road, in Junagadh, opposite the Ranavav Chowk, the accused halted her and placed a knife on her neck and forcibly sat behind her on the scooty and took her to Yogi studio near Bhutnath. The accused forcibly made her take some photographs with the intention of getting married to her, abducted her and threatened to kill her father and younger brother and a complaint was filed by the complainant at Junagadh City ‘B’ Division Police Station under Sections 363 , 366 and 506(2) of the INDIAN PENAL CODE , (hereianfter referred to as the I.P.C) and Section 135 of the Bombay Police Act, which was registered at Junagadh City ‘B’ Division Police Station I-C.R. No.288 of 2000. 2.2 The Investigating Officer drew the necessary panchnamas, seized the necessary documents and filed a charge-sheet before the Court of Chief Judicial Magistrate, Junagadh and as the said offences against the accused was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Junagadh as per the provisions of Section 209 of the Code of Criminal Procedure and the case was registered as Session Case No.63 of 2004. 2.3 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge at Exh. 2 was framed against the accused and the statement of the accused was recorded at Exh. 3, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4 The prosecution produced ten oral evidences and eleven documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh.37, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence of the prosecution on record. The accused refused to step into the witness box or examine witnesses on his behalf and stated that a false case has been filed against him. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit the accused from all the charges leveled against him. 3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not properly appreciated the oral evidence of ten witnesses and eleven documentary evidences produced by the prosecution in support of their cases. The learned trial Court has discarded and disbelieved their evidence and has come to the conclusion that the prosecution has not proved the case beyond reasonable doubts and the impugned judgment and order of acquittal passed by the learned trial Court is illegal, invalid and improper and the same is required to be quashed and set aside. 4. Heard learned APP Mr. Pranav Dhagat for the appellant State and learned advocate Mr. Ruturaj Nanavati for the respondent. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Mr. 4. Heard learned APP Mr. Pranav Dhagat for the appellant State and learned advocate Mr. Ruturaj Nanavati for the respondent. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Mr. Pranav Dhagat has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the judgment and order of acquittal is contrary to law and evidence on record and the learned trial Court has not appreciated the direct and indirect evidence in the case. The complainant has supported the case of the prosecution, which is corroborated by the deposition of the medical officer and the witnesses have identified the accused before the learned trial Court. The prosecution has fully proved the case beyond reasonable doubts but the learned trial Court has relied on minor contradictions and has given undue weightage with regard to the place of incident. The order passed by the learned trial Court is illegal, improper and perverse and is required to be quashed and set aside and the appeal of the appellant must be allowed. 6. Learned advocate Mr. Ruturaj Nanavati for the respondent has submitted that learned trial Court has appreciate the evidence in proper perspective and has passed the impugned order of acquittal and no interference is required and hence the appeal must be rejected. 7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under: “24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. 25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity. 1. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The ‘two views theory’ has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, “13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [ (2002) 9 SCC 639 ] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: “9. …We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.”” (emphasis supplied) In Sanjeev v. State of H.P., the Hon’ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:- “7. It is well settled that: - 7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala).” 7.1 In Para – 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:- “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:- (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive – inclusive of all evidence, oral or documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view mere possibility of a contrary view shall not justify the reversal of acquittal; (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. 8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. That the learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same. 9. In light on the above settled principles on law considering the evidence on the prosecution on record of the case, to bring home the charge against the accused, the prosecution has examined Prosecution Witness No.1 Jagdishbhai Girdharilal Khimlani at Exh.9 and Prosecution Witness No.2 Rajubhai Ramshiya Prajapati at Exh.11. 9. In light on the above settled principles on law considering the evidence on the prosecution on record of the case, to bring home the charge against the accused, the prosecution has examined Prosecution Witness No.1 Jagdishbhai Girdharilal Khimlani at Exh.9 and Prosecution Witness No.2 Rajubhai Ramshiya Prajapati at Exh.11. Both the witnesses are the panch witnesses of the arrest panchnama, by which, the accused was arrested and the knife was recovered from the accused. Both the witnesses have stated that on 20.10.2000 while they were passing by the Swaminarayan temple, the police halted them and asked them to affix their signatures on a ready panchnama and no one was arrested and no weapon was seized in their presence. The witnesses have merely identified their signatures on the panchnama, which is produced at Exh.10. Both the witnesses have been declared hostile and have not supported the case of the prosecution. 9.1 The prosecution has examined Prosecution Witness No. 3 Kishorbbhai Goganbhai Narghera at Exh.12 and the witness is the panch-witness of the panchnama of the place of offence, which is produced at Exh.13. The witness has supported the case of the prosecution. 9.2 The prosecution has examined Prosecution Witness No.4 Sapanaben Prahladbhai Agravat - the complainant who has stated that in the year 2000, while she was studying in Cass - X, the incident had occurred on Sunday and the accused had shown her a knife and sat behind her scooty and took her to Yogi Studio and there only her photograph were taken and the money for the photographs were given by the accused. When they came out from the studio, the accused told her that he had killed a person from the minority community and was in Sabarmati jail and threatened that she should not tell the fact that her photograph was taken to anyone. She took her scooty and went towards her home and she met her mother at the Joshipara railway crossing. As it was late, her parents got angry on her but she did not tell the reason why she was late. Her father forced her and she told them that the accused had shown her a knife and taken her photograph at Yogi Studio. As it was Sunday, her parents did not do anything and thereafter they went to ‘A’ Division Police Station and filed the complaint, which is produced at Exh.18. Her father forced her and she told them that the accused had shown her a knife and taken her photograph at Yogi Studio. As it was Sunday, her parents did not do anything and thereafter they went to ‘A’ Division Police Station and filed the complaint, which is produced at Exh.18. During the cross examination by the learned advocate for the accused, the witness has stated that, the place, where the incident has occurred is a public place and there are a number of shops and if she had to go from Alpha Classes to her home, she did not have to go to Ranavav Chok but had to go towards Azad Chok. There is a rickshaw stand at Ranavav Chok and the area is a congested area and Punit Shopping Centre is situated in the Chowk and many tuition classes are situated in this place. While she was going from Ranavav Chok towards Yogi Studio, she was riding the scooty but she did not shout and did not ask for help from any person. When she went to the studio, she did not tell the person who was in the studio that the accused was forcibly trying to take her photograph and on the date of the incident, her cousin had come to her house and she had gone to Kodinar with him. While she was at Kodinar, her mother had consumed some poison and tried to commit suicide and after she left Yogi Studio on the day of the incident, she has never met the accused. 9.3 The prosecution has examined Prosecution Witness No. 5 Prahladbhai Roopdas Agravat at Exh:23 and the witness is the father of the victim who has not supported the case of the prosecution. The witness has been declared hostile and he has denied that his daughter had told him that the accused had sat on her scooty and had taken her to the studio to get her photograph clicked and had thereafter threatened her. 9.4 The prosecution has examined Prosecution Witness No. 6 Meenaben Prahladbhai Agravat and the witness is the mother of the victim but she has not supported the case of the prosecution. The witness has been declared hostile and during the lengthy cross- examination by the learned APP, she has not stated that any incident with her daughter had ever occurred. 9.4 The prosecution has examined Prosecution Witness No. 6 Meenaben Prahladbhai Agravat and the witness is the mother of the victim but she has not supported the case of the prosecution. The witness has been declared hostile and during the lengthy cross- examination by the learned APP, she has not stated that any incident with her daughter had ever occurred. 9.5 The prosecution has examined Prosecution Witness No. 7 Hirenbhai Prafulchandra Agravat at Exh.25 and the witness is the cousin brother of the complainant, who has stated that on the day of the incident, he had come to Junagadh at his aunty's place with his wife and his aunty was in depression as some persons were harassing her daughter. He brought the complainant to his house at Kodinar, where she stayed for three days and thereafter his aunty called him and he came to Junagadh and dropped the complainant at her home. The complainant had told him that one boy was harassing her but he does not know the name or details of the boy, who was harassing the complainant. The witness has not supported the case of the prosecution and has been declared hostile. During the lengthy cross-examination by the learned APP, nothing to support the case of the prosecution has come on record. 9.6 The prosecution has examined Prosecution Witness No. 8 Sardarsinh Hanubhai Zala at Exh.26 and the witness was working as a PSI and had recorded the complaint of the complainant. 9.7 The prosecution has examined Prosecution Witness No. 9 Bharatbhai Chhaganbhai Barjoda at Exh.28 and the witness was working as a PSO in Junagadh ‘B’ Division Police Station when the complaint was filed and he had registered the complaint at Junagadh ‘B’ Division Police Station I-C.R.No. 288 of 2000. 9.8 The prosecution has examined Prosecution Witness No. 10 Narhardan Keshardan Leela at Exh.31 and the witness is the Investigating Officer, who has narrated in detail the entire procedure undertaken by him during investigation. 10. On minute appreciation of the entire evidence of the prosecution, except for the bare allegations of the complainant, there is no iota of evidence that the incident has ever occurred and as per the case of the prosecution, the complainant was abducted by the accused, showing her a knife and forcibly sitting behind her scooty and taking her to Yogi Studio to get her photograph clicked. As per the case of the prosecution, the accused had their photographs clicked, but the complainant has categorically stated that the accused had only got her photograph clicked and after she left the studio, she has never met the accused. During the cross-examination, it has emerged that the place from where the complainant was abducted i.e. Ranavav Chowk was a very congested area and if the incident has occurred in a congested area, where the accused had showed a knife to the complainant and had forcibly sat on her scooty,there are no independent witnesses to this effect examined by theprosecution. Moreover, the complainant has stated that immediately thereafter, she met her parents but she did not tell them about the incident and she left for Kodinar with her cousin. The prosecution has not examined any independent witnesses and even the person, who had clicked the photograph in Yogi Studio has not been examined. Prosecution Witness No.5 Prahladbhai Roopdas Agravat, the father of the complainant, Prosecution Witness No.6, Meenaben Prahladbhai Agravat, the mother of the complainant and Prosecution Witness No.7, Hirenbhai Prafulchandra Agravat, the cousin brother of the complainant have all not supported the case of the prosecution and have been declared hostile and in their evidence, there is no iota of evidence that any such incident has ever occurred. 11. In view of the settled position of law in the decisions of Mallappa (Supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in extending benefit of doubt and acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of extending benefit of doubt and acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 12. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 12. The impugned judgement and order of acquittal passed by the learned 6 th (Ad-hoc) Additional Sessions Judge, Junagadh in Sessions Case No. 63 of 2004 on 30.09.2011, is hereby confirmed. 13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.