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2025 DIGILAW 603 (GUJ)

Ajitsinh Dalpatsinh Zala v. State Of Gujarat

2025-07-01

GITA GOPI

body2025
JUDGMENT : GITA GOPI, J. 1. The present Criminal Appeal challenges the judgment and order of conviction and sentence dated 30.11.2004 of the learned Additional Sessions Judge and 7 th Fast Track Judge, Mehsana in Sessions Case No.107 of 2004 whereby :- (a) Under Section 451 of the INDIAN PENAL CODE (IPC), the accused No.2 has been convicted and sentenced to undergo three months of simple imprisonment and payment of a fine of Rs.100/- and in default of payment of fine, to further undergo five days of simple imprisonment; (b) Under Section 366 of IPC, the accused No.2 has been sentenced to undergo two years of rigorous imprisonment and payment of fine of Rs.250/- and in default of payment of fine, to further undergo 10 days of simple imprisonment; (c) Under Section 504 of the IPC, both the accused No.1 and 2 have been sentenced to undergo one month of simple imprisonment; (d) Under Section 506(2) of the IPC, both the accused have been sentenced to undergo two years of rigorous imprisonment and payment of fine of Rs.200/- and in default of payment of fine, further simple imprisonment of 10 days, while, (e) Both the accused have been acquitted for the offences punishable under Section 135 of the BOMBAY POLICE ACT . The sentence to run concurrently. 2. During the pendency of the present appeal, the appellant No.1-Ajitsinh Dalpatsinh Jhala died and by an order of this Court dated 29.03.2017, the Appeal stood abated qua the appellant No.1. 3. The charge below Exhibit 6 was framed against both the accused. As per the charge, on 05.07.2002, the accused No.2-Vikramsinh Ajitsinh Jhala had entered illegally into the compound of the house of the complainant’s brother at Bindunagar Society, Behind Ganjbazaar, Mehsana with an intent to kidnap the daughter (victim) of the complainant’s elder brother- Babulal Madhavlal Patel, caught the hands of the victim and forcibly picked her up, but while making such an attempt, the victim started shouting, her parents came there and since her parents had come there, accused No.2 ran away from the place of offence and thereby, it is alleged that offences were committed punishable under Sections 366 read with 451 of the IPC. Thereafter, the further charge is that on the same day, same time and same place after running away from the house of the complainant’s elder brother, and after going back into the house of accused situated in the society the accused No.2 came with a sword. The accused No.2 alongwith the accused No.1 came into the house of the complainant’s elder brother and using abusive language asked them to vacate the house within 24 hours, otherwise the daughter would be kidnapped and all of them would be killed. The charge was therefore, framed against both the accused under Sections. 504, 506(2) read with Section 114 of the IPC. It is also alleged that there was a breach of the Arms prohibition notification and therefore, the charge for the offence punishable under Section 135 of the BOMBAY POLICE ACT . 4. Learned advocate for the appellant herein Ms. Sachi Mathur has referred to the charge and has submitted that the charge against the accused does not clarify the offences. The parents of the victim though they were available at the time have not given any complaint. The presence of the complainant itself becomes doubtful and the inconsistent nature of charge also prima-facie clarifies of no such incident having taken place. Referring to the statement under Section 313 of the Code of Criminal Procedure, 1973 (in short referred to as ‘Cr.P.C.’) of both the accused, it is submitted that the complainant wanted to purchase the shop of the accused and since, the accused had denied to sell it, therefore to harass them, a false complaint has been filed. 5. Referring to the deposition of the complainant-PW1-Ramanbhai Madhavlal Patel, it is submitted by learned advocate Ms. Sachi Mathur that the complainant is in the commission business in Ganjbazaar, thus referring to the further statement of the accused submitted that the intent of the complainant was to harass the accused as they had denied to sell the shop. It is further submitted that that the complaint has been made with graver impact by involving the brother’s daughter while the father of the victim girl has not made any complaint, though it is alleged that the father was present at the time of the alleged offence. It is further submitted that that the complaint has been made with graver impact by involving the brother’s daughter while the father of the victim girl has not made any complaint, though it is alleged that the father was present at the time of the alleged offence. It is also further alleged that the allegations qua Section 366 of the IPC does not get proved, there was no reason for the accused to go inside the house of the victim or to hold her hand with the intent to kidnap so as to attract the offences punishable under Section 366 of IPC. It is further submitted that the facts of the case as alleged does not show any ingredients of abduction or kidnapping and there is no iota of evidence in the deposition of any of the witnesses to prove that the victim was kidnapped or abducted from the house. It is also submitted that the intention of the accused is required to be gathered from the evidence of the victim herself where she has not stated of getting abducted or kidnapped. The victim has further not stated of the accused holding her hand to even bring the case under Section 354 of IPC, i.e. molestation. Section 354 of IPC deals with the assault or criminal force to woman with intent to outrage her modesty. 6. Learned advocate Ms. Sachi Mathur submitted that the victim girl has been misused by the complainant to allege grave offences against the accused with an intention to see that the accused remain in jail. Referring to the evidence on record, it is submitted that the weapon is a sword which has been attributed to accused No.2, while in the deposition, the sword is shown in the hands of the accused No.1. It is not the case that both the accused had come together. The evidence produced by the witnesses are not consistent with the charge framed and all the witnesses have contradicted each other. The panch witness has turned hostile and the panchnama is not proved. Learned advocate Ms. It is not the case that both the accused had come together. The evidence produced by the witnesses are not consistent with the charge framed and all the witnesses have contradicted each other. The panch witness has turned hostile and the panchnama is not proved. Learned advocate Ms. Sachi Mathur has referred to the charge-sheet to submit that the time of arrest is shown as 23.50 hours on 05.07.2002 and prior to the arrest, the panchnama has been drawn which is contrary to the provision of Section 27 of the EVIDENCE ACT , 1872, whereas the provision contemplates the presence of the accused in the police custody. Prima-facie on the record itself, the fact does not get proved and submitted that the panchnama has to be outrightly rejected. 7. Learned advocate Ms. Sachi Mathur further referring to the deposition of the mother-PW3-Shardaben Babulal Patel submitted that her evidence does not show the complainant to be an eyewitness to the incident. The victim stated that her uncle and father had gone to give the complaint, while the complainant has stated that one-Virambhai had come along to give the complaint at 8.00 in the evening while the incident is shown to be at 9.00 in the evening. However, the mother has stated that only PW1-Ramanbhai Madhavlal Patel had gone to give the complaint. The mother has attributed the sword to be in the hands of the accused No.1 and the daughter also has attributed the sword to be in the hands of the accused No.1, who is the father of the accused No.2. Learned advocate Ms. Sachi Mathur submitted that in the complaint, the sword has been attributed to the son, while no such weapon is shown in the hands of accused No.1, the father in the complaint. It is further submitted that though many people had gathered, no statement of any independent witness has been recorded to corroborate the statement of the witnesses who all are interested witnesses. It is therefore, urged that this Court may exercise discretion in favour of the appellant herein and the present Appeal may be allowed. 8. Countering the above arguments, learned Additional Public Prosecutor Ms. Monali Bhatt has submitted that the incident had taken place on 05.07.2002 between 8.45–9.00 pm, the FIR was given at 22.50 hours, the panchnama was drawn between 23.20-23.50 hours. 8. Countering the above arguments, learned Additional Public Prosecutor Ms. Monali Bhatt has submitted that the incident had taken place on 05.07.2002 between 8.45–9.00 pm, the FIR was given at 22.50 hours, the panchnama was drawn between 23.20-23.50 hours. The accused were staying in the opposite society and hence, were immediately arrested and the weapon was recovered from the accused. Referring to the statement of the victim, learned Additional Public Prosecutor Ms. Monali Bhatt submitted that the conduct of the accused itself clarifies his intention to abduct the victim for an illegal purpose and hence, the offence committed has been rightly proved and hence, the accused have been convicted and supporting the judgment and order of conviction dated 30.11.2004 of the learned Additional Sessions Judge and 7 th Fast Track Judge, Mehsana, submitted to dismiss the Appeal. 9. Having heard the submissions canvassed perused the records of the case, the charge-sheet reflects that both the accused were arrested on 05.07.2002 at 23.50 hours. The complainant has stated that he had given the complaint on 05.07.2002 at about 8.00 pm in the evening. The victim-PW2 at the time of her deposition was aged 22 years and since the incident had occurred 12 months prior to her deposition, the victim should be 21 years old at the time of incident. According to the victim’s deposition she was studying in 2 nd year Bachelor of Arts. Further, she has stated that she was sitting alongwith her mother and father at about 9.00 in the evening, accused No.2-Vikramsinh Ajitsinh Jhala entered the house by opening the front gate. The victim has stated that she was not knowing him, accused No.2 stated that he had come to take her. It is further stated by the victim that when the accused tried to pull her, her father got up to beat the accused, so the accused jumped over the verandah and ran away. Thereafter, the accused father came with a sword. The victim further states that when the accused No.1 came with a sword, as she sat down she is not aware of what the accused had said then. Thereafter, many persons from the family including her uncle and aunt had come there. The uncle had gone to give the complaint at the police station. The evidence of the victim does not show that the present appellant-accused No.2 had caught the victim by her hand. Thereafter, many persons from the family including her uncle and aunt had come there. The uncle had gone to give the complaint at the police station. The evidence of the victim does not show that the present appellant-accused No.2 had caught the victim by her hand. The victim states that the accused had pulled her and the father of the victim as stood up to beat accused No.2, he ran away. It is very strange, that the father has not been examined by the prosecution to corroborate the victim daughter. In addition, the act of the mother at that time does not get clarified by the victim. The victim-PW2 states that the accused No.2 jumped the verandah to run away and thereafter, the father had come there with a sword. The victim does not state the presence of the appellant No.2 at that time when accused No.1 had come. She also does not state that her uncle and aunt were present when the incident had occurred. In the cross examination, the victim further clarifies that at the time of the incident her brother-Bhadresh was also present, however, the brother has not been examined. The victim further clarifies in the cross examination that at the time of incident, about 25-30 people had gathered there and the incident continued for about one hour. The incident had occurred in the night and the police had recorded the statement next day. The victim further states that she does not remember who had gone with her uncle to give the complaint but she has denied the suggestion that she was giving false deposition at the behest of her uncle. 10. The Section which has been invoked is Section 366 of IPC. The same is reproduced hereinunder:- “366. The victim further states that she does not remember who had gone with her uncle to give the complaint but she has denied the suggestion that she was giving false deposition at the behest of her uncle. 10. The Section which has been invoked is Section 366 of IPC. The same is reproduced hereinunder:- “366. Kidnapping, abducting or inducing woman to comel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.]” The ingredients of Section 366 of IPC are : (a) that the accused induced the complainant or compelled by force to go from any place; (b) that such inducement was by deceitful means; (c) that such abduction took place with the intent that the complainant may be seduced to illicit intercourse; (d) that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. 10.A. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 of IPC, the Court cannot hold the accused guilty and punish under Section 366 of IPC. 11. Here there is no case of abduction or kidnapping. The victim was aged 21 years at the time of the offence. There is no case of even enticing the minor girl on the promise of marriage. The only act which the victim girl has attributed to the accused No.2 is that he had tried to pull her. Her deposition states that the accused No.2 had come to take her. The victim was aged 21 years at the time of the offence. There is no case of even enticing the minor girl on the promise of marriage. The only act which the victim girl has attributed to the accused No.2 is that he had tried to pull her. Her deposition states that the accused No.2 had come to take her. While the conduct to show the intent on part of the accused No.2 to attract the ingredients of Section 366 of IPC are not proved. 12. The mother of the victim-PW3-Shardaben Babulal Patel also states that the incident had taken place at about 9.00 in the evening. The mother stated that the accused No.2 had entered their house and had caught the hand of the daughter-victim. It is further stated that the accused No.2 told that he had come to take PW2, thereafter, since they moved to beat the accused No.2, he ran away. Further evidence is accused No.1 came with a sword. The mother has further stated that accused No.1 had the sword who was telling to kill Patel. Thereafter, they remained silent. The complainant, i.e. the brother-in-law of PW3-Shardaben Babulal Patel went to give a complaint. This witness has further deposed that when accused No.1 came with a sword, they were frightened. It is PW3 who has stated that accused had caught hold of the hand of the daughter while that act of the accused has not been described by the victim herself. According to the deposition of the victim, the accused had tried to pull her while the mother has specifically stated that the accused caught the hand of the daughter and both the witnesses state that he had uttered that he had come to take PW2. In the cross examination of the mother, she has further stated that at the time of the incident, her husband and son were also present and apart from them, there was no other person. The complainant was not present at the time of the incident. The complainant was informed of the incident. She further clarifies that the complainant himself has not seen the incident but had come during the time when the incident was in progress and therefore, she had informed him about the incident. According to her, the incident took place for about half an hour. The complainant was informed of the incident. She further clarifies that the complainant himself has not seen the incident but had come during the time when the incident was in progress and therefore, she had informed him about the incident. According to her, the incident took place for about half an hour. The mother also states that many people had gathered there but no person had accompanied the complainant-PW1-Ramanbhai Madhavlal Patel to give the complaint. 13. According to the mother, about 40 persons had gathered. According to the complainant on the date of the incident, he alongwith his wife was sitting in the house and his brother’s daughter was in the verandah opposite the house. At that time, accused No.2 came there and caught the hand of the daughter and told the victim to join him as he had come to take her. According to this witness, because of the hue and cry and hearing the shouts, he came to the house of his brother and his sister-in-law-PW3. The statement of the complainant does not reveal the presence of the two accused at the time of the incident. The statement of the complainant is not consistent with the statement of the victim and her mother. The complainant had not seen the accused catching the hands of the victim. The mother’s statement does not reflect the presence of the complainant at the time of incident. According to her, the complainant joined later on, she very clearly has stated that the complainant was not present at the time of the incident. The complainant has stated that he was at the house of his elder brother-Babulal Madhavlal Patel and it was one-Virambhai who had gone along with the complainant to give complaint. The police have recorded the statement of Virambhai. It is further stated by the complainant that incident was of five minutes but the total time of the incident was of half an hour. The complainant has confirmed that the accused No.1 was a retired Teacher and the accused No.2 was studying in a college. Both the accused were staying there for about seven years. He has denied the suggestion that he had gone to purchase house/shop of accused. The complainant has confirmed that the accused No.1 was a retired Teacher and the accused No.2 was studying in a college. Both the accused were staying there for about seven years. He has denied the suggestion that he had gone to purchase house/shop of accused. He has also denied that the accused had refused to sell the shop and further has also denied the suggestion that since the accused had decided not to sell the shop, keeping the same in mind under spite against the accused, he has filed a false complaint. 14. Contradicting the statement of all the witnesses which have come on record, the complainant appears to be one who has not seen the incident. The complaint at Exhibit 13 does not note the time of registering FIR but the complainant states that the complaint was given at 8.00 pm in the evening while the incident has occurred at 9.00 in the evening, as stated by PW2 and PW3. The complaint in the form under Section 154 of Cr.P.C. has not been placed on record, for the Police witness to indicate the exact time of receiving the complaint. Exhibit 13 does not note the time, however, in the evidence of PW5-the PSO- Maganbhai Hargavanbhai Patel, he has referred to Exhibit 19, which is Mark 11/1, wherein the offence has been registered as C.R. No.234 of 2002. The complaint is noted at 21.50 hours while the PW5-PSO states that he had taken the complaint at 22.50 hours. The complaint was thereafter, deputed for investigation to Police Sub-Inspector Mansuri. In the cross examination of PSI, he has stated that the complaint was taken under Section 366 , 451 and 114 of the IPC and according to him, under Section 366 , the fact gets disclosed of attacking a major female. Maganbhai Hargavanbhai Patel further states that he was serving at the Mehsana City Police Station on 20.07.2002 and he was entrusted with the investigation by the Crime Branch. Since there was sufficient evidence, the charge-sheet was filed on 14.08.2002. He has referred to the charge-sheet, where he has identified the signature of the Police Sub-Inspector Mansuri. He has also identified the signature of the panchas at Exhibit 21 and signature of Police Sub-Inspector Mansuri at Exhibit 17. In the cross examination, it becomes clear that this witness has not visited the place of offence. He has referred to the charge-sheet, where he has identified the signature of the Police Sub-Inspector Mansuri. He has also identified the signature of the panchas at Exhibit 21 and signature of Police Sub-Inspector Mansuri at Exhibit 17. In the cross examination, it becomes clear that this witness has not visited the place of offence. He has also clarified that the total investigation was done by Police Sub-Inspector Mansuri and he had only filed the charge-sheet and except that, he has done no other work. The statement of the witnesses were recorded by Police Sub-Inspector Mansuri. He has affirmed that no statement of the neighbours were recorded. Since Police Sub-Inspector Mansuri expired, he was not examined during trial. 15. The panch witness-PW4 has not supported the panchnama. After declaring him hostile, the learned Additional Public Prosecutor has discussed about the present appellant/accused No.2-Vikramsinh Ajitsinh Jhala producing the iron sword before the panchas. The panchnama at Exhibit 17 shows the weapon being produced by the accused No.2. The panchnama is shown to be drawn at 23.30-23.50 hours which admittedly as per the charge-sheet is prior the arrest of the accused, which is shown as 23.50 hours. The panchnama thus, loses its value under Section 27 of the EVIDENCE ACT as the ingredients which are necessary to validate the panchnama are that discovery should be in consequence of information received from a person accused of any offence, in the custody of police officer. The documentary evidence itself clarifies that when the panchnama was drawn, the accused were not in police custody. 16. The statement of the witnesses are also not consistent. The victim does not specify of the accused holding her hand with an intent to take her. The utterance was that he had come to take her while the victim did not know the accused. Accused and victim were not knowing each other. Hence, there was no reason for the accused to take the victim for purpose as noted in Section 366 of IPC and this itself, gets proved by the evidence of the victim and her mother, where there is no case of abduction or kidnapping. 17. The learned trial Court Judge has failed to take all these aspects into consideration. The trial Court also has not entered into the analysis of the evidence on record. 17. The learned trial Court Judge has failed to take all these aspects into consideration. The trial Court also has not entered into the analysis of the evidence on record. The weapon sword which was attributed to the accused No.2 in the complaint and panchnama was mentioned in the evidence of the victim and her mother was with accused No.1. The sword is shown to be in the hands of the father. The intention to use it at the place of offence also does not surface. It is not the case that both the accused had come there to abduct or kidnap PW2. There was no earlier relationship of the accused No.2 with the victim. Rather, the victim clarifies that she does not know accused No.2. Both of the accused have clarified that the complainant wanted to purchase their shop and since, they had denied, a false complaint has been lodged. The prosecution under such circumstances was required to examine an independent person. According to the witnesses, many people had gathered there but no such attempt had been made to examine them rather the PW6 has clarified that no statement of any neighbours were recorded. The witnesses are all interested witnesses. The evidence does not inspire confidence. The time of registration of complaint also does not inspire confidence. According to the complainant, he had given the complaint at about 8.00 pm in the evening, i.e. at around 20.00 hours while the PSO in the cross examination, stated that the complaint was taken at 22.50 hours, in Exhibit 19 the fact reveals that the complaint was recorded at 21.50 hours and the victim had stated that the incident occurred at 22 hours and the incident continued for about one hour. If all these observations are taken into consideration, then the incident would have continued from 22.00 to 23.00 hours. The evidence reveals that even prior to the initiation of the incident, the complaint came to be recorded. 18. Exhibit 19 is a forwarding letter for further investigation recording the FIR and the time is 22.50 hours. The learned trial Court Judge has failed to observe that there was no case of actual abduction or kidnapping the victim. The victim has not clarified of any alleged abduction or kidnapping. 18. Exhibit 19 is a forwarding letter for further investigation recording the FIR and the time is 22.50 hours. The learned trial Court Judge has failed to observe that there was no case of actual abduction or kidnapping the victim. The victim has not clarified of any alleged abduction or kidnapping. In absence of any independent witnesses to corroborate the evidence on record, it would not be safe to place reliance on the evidence of the witnesses who are interested witnesses. In addition, the evidence of the witnesses also have many contradictions. The evidence of witnesses are not trustworthy to sustain the conviction. 19. Hence, the Criminal Appeal is allowed. The appeal of appellant No.1 stood abated. The judgment and order of conviction dated 30.11.2004 of the learned Additional Sessions Judge and 7 th Fast Track Judge, Mehsana in Sessions Case No.107 of 2004 is quashed and set aside. The appellant No.2 is acquitted of all the charges levelled against him. 20. Bail and bail bond, if any, stands cancelled. The amount of fine paid, if any, be refunded to the appellant herein. Record and proceedings, be sent to the concerned Trial Court forthwith.