Gujarat High Court
The State Of Gujarat vs Mohan Sursang Chavada on 4 December, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 581 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
MOHAN SURSANG CHAVADA
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
MR AMRISH K PANDYA(3219) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 04/12/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order dated 10.02.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.5, Vadodara in Sessions Case No.243/2004 and Sessions Case No.244/2004, whereby the respondent - org. accused No.2 came to be acquitted for the offences punishable under Sections 363, 366 and 114 of the Indian Penal Code, the appellant - State has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. The brief facts leading to the filing of the present appeal are as under:
Page 1 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined 2.1. The complainant, father of the prosecutrix, lodged a complaint on 03.04.2004 at Padra Police Station, registered as C.R. No.I-69/2004, alleging that on 24.03.2004 at about 10:00 hours, when he had gone to purchase vegetables, the respondent-accused along with co-accused No.1 abducted his minor daughter (aged about 10 years 9 months 23 days) from the lawful guardianship without consent with intent that she may be compelled or knowing it to be likely that she would be forced to illicit intercourse. During investigation, Section 376 IPC was added. After completion of investigation, charge-sheet was filed, the case was committed to the learned Sessions Court and registered as the aforesaid sessions cases. The learned Sessions Court, after recording evidence and hearing the parties, convicted co-accused No.1 for the offences punishable under Sections 363, 366 and 376 IPC but acquitted the present respondent-accused of the charges under Sections 363, 366 and 114 IPC.
3. We have heard the learned advocates for the respective parties and carefully examined the oral and documentary evidence adduced before the learned Sessions Court. During the course of the trial, the prosecution examined a total of 14 witnesses. The details of the oral and documentary evidence are as under:
~:: Oral Evidence ::~ Sr. No. Particular Exh.
1. Dr. Kashmira Pipinbhai Shroff (PW-1) 9 2. Ravjibhai Mathurbhai Vaghari (PW-2) 15 3. Chandubhai Jinabhai Chauhan (PW-3) 16 4. Dineshbhai Jashvatbhai Rana (PW-4) 21 Page 2 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined 5. Manasingbhai Dhirabhai Rathva (PW-5) 24 6. Dhulabhai Narsingbhai Padhiyar 27 (Complainant/Father) (PW-6) 7. Jenabhai @ Jinabhai Narsingbhai Padhiyar (Uncle) 28 (PW-7) 8. Ranjitbhai Bhulabhai Padhiyar (Brother of 29 prosecutrix) (PW-8) 9. Prosecutrix (PW-9) 30 10. Kantibhai Virabhai Katara (PW-10) 31 11. Narendrasing Manubhai Chauhan (I.O.) (PW-11) 32 12. Rakshaben Sureshbhai Panchal (Panch) (PW-12) 42 13. Kanubhai Lakhabhai Bhil (PW-13) 44 14. Dilipkumar Ambalal Dixit (PW-14) 46 ~:: Documentary Evidence ::~ Sr. No. Particular Exh. 1. Medical case papers of prosecutrix 10 2. Note of collecting samples of prosecutrix 11 3. Medical Certificate of prosecutrix 12 4. Note of collecting samples of accused No.1 13 5. Medical Certificate of accused No.1 14 6. Copy of admission certificate of prosecutrix in 13 school 7. Extract of General Register 17 8. Birth certificate of prosecutrix 18 9. Panchnama of place of offence 20 Page 3 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined 10. Seizure panchnamas of clothes of accused No.1 22 11. Seizure panchnamas of clothes of prosecutrix 23 12. Marriage notice 25 13. True copy of Marriage notice 26 14. Complaint 33 15. Report of registering offence 34 16. Order of deputing investigation 35 17. Report for addition of charges in FIR 36 18. Dispatch note 37 19. FSL receipt 38 20. FSL report with forwarding letter 39 21. Arrest panchnama of accused No.2 40 22. Birth register extract of prosecutrix 43 23. Station diary entry 45
4. The learned APP for the appellant-State submitted that the impugned judgment of acquittal suffers from perversity and requires interference. He placed heavy reliance on the testimony of the prosecutrix (PW-9, Exh.30) and submitted that her evidence, corroborated by medical and school records, clearly establishes the role of the respondent in abetting the abduction and the subsequent offences.
4.1 Learned APP has further referred to the evidence of the other material witnesses and submitted that from the evidence of the said witnesses, the involvement of the accused in commission of the crime is proved and therefore this Court may interfere with the said finding and record the conviction.
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5. Per contra, Mr.Amrish K. Pandya, learned advocate for the respondent-accused supported the impugned judgment and submitted that the prosecutrix remained with co-accused No.1 for almost two months, got a marriage notice executed showing her age as 21 years, never raised any alarm and introduced the role of the respondent for the first time in court, rendering the case against the respondent wholly unreliable.
6. We have heard the learned advocates for the respective parties and gone through the entire evidence on record.
7. PW-6, Dhulabhai Narsingbhai Padhiyar (complainant and father of the prosecutrix, examined at Exh.27), deposed that his brother Jenabhai later informed him that he had seen the prosecutrix sitting on the carrier of a bicycle ridden by co-accused No.1 while the respondent-accused (Accused No.2) was walking behind them. He admitted in cross- examination that there was long-standing monetary enmity between his family and the family of the respondent-accused, that he had no personal knowledge of the respondent's direct involvement in the abduction, and that he lodged the complaint only on the basis of what Jenabhai told him. He turned hostile on material particulars concerning the role of the respondent-accused (Accused No.2). This admission of previous enmity, coupled with lack of any personal knowledge and reliance solely on hearsay from Jenabhai, considerably dilutes the credibility of the complainant's version qua the respondent-accused and raises a strong possibility of false implication due to the admitted dispute between the families.
8. PW-7, Jenabhai @ Jinabhai Narsingbhai Padhiyar (paternal uncle of the prosecutrix, examined at Exh.28), deposed that on the morning of Page 5 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined 24.03.2004 he saw co-accused No.1 riding a bicycle with the prosecutrix sitting on the carrier while the respondent-accused (Accused No.2) was merely walking some distance behind them. Significantly, he did not raise any alarm, did not attempt to stop them, did not chase them, and did not immediately inform the complainant or anyone else in the village. He admitted in cross-examination that he disclosed this fact to the complainant only when the complainant himself came searching and inquired from him later in the day. The conduct of this eyewitness in remaining a mute spectator, not intervening despite seeing a minor girl being taken away, and not reporting the matter promptly, is wholly unnatural and renders his testimony wholly unreliable insofar as it seeks to attribute any active or abetting role to the respondent-accused (Accused No.2), whose presence was only incidental and passive.
9. PW-9, the prosecutrix (examined at Exh.30), stated for the first time in court that the respondent-accused (Accused No.2) came to her house on the morning of the incident and called her out saying that her "Kaka" (uncle) had come, whereupon she accompanied him. Crucially, she candidly admitted in cross-examination that in her police statement as well as in her statement recorded under Section 164 Cr.P.C. no role was attributed to the respondent-accused (Accused No.2), and the entire story of the respondent-accused calling her from home was stated for the first time before the Sessions Court. This major improvement/omission going to the root of the prosecution case completely shatters the credibility of her testimony qua the respondent-accused (Accused No.2) and renders it wholly untrustworthy for sustaining any charge of abetment under Section 114 IPC.
10. PW-11, Narendrasing Manubhai Chauhan, Investigating Officer (Exh.32), admitted in cross-examination that even in her statement under Page 6 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined Section 164 Cr.P.C. the prosecutrix had not attributed any role to the respondent-accused (Accused No.2). The absence of any corroborative evidence, coupled with the prosecutrix's silence about the respondent- accused in both her earlier statements, further fortifies the defence stand that the respondent-accused has been falsely implicated.
11. The learned Sessions Court, after appreciating the above evidence, held that the prosecution completely failed to prove any overt act or abetment on the part of the respondent-accused (Accused No.2). The only evidence against him was the interested testimony of the prosecutrix which suffered from vital improvements and was wholly uncorroborated.
12. Having independently re-examined the evidence, we find ourselves in complete agreement with the reasoning and conclusion arrived at by the learned Sessions Judge. The prosecutrix for the first time in court implicated the respondent-accused (Accused No.2) by stating that he called her from home on the pretext of her uncle having arrived. This improvement stands admitted by her and also stands admitted by the Investigating Officer that no such role was assigned in her police statement or Section 164 statement. No independent corroboration is forthcoming. In the absence of any evidence showing instigation, intentional aiding or engagement in conspiracy by the respondent-accused (Accused No.2), the charges under Sections 363, 366 read with Section 114 IPC are not established even prima facie, much less beyond reasonable doubt.
13. The prosecution failed to prove abetment under Section 107 read with Section 114 IPC against the respondent-accused, as no evidence establishes any instigation, intentional aiding, or engagement in conspiracy by him. Mere presence some distance behind the principal Page 7 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined offender while the latter carried the prosecutrix on a bicycle does not constitute abetment, for passive companionship or incidental presence, without any overt act of facilitation or encouragement contemporaneous with the offence, is wholly insufficient to attract Section 114 IPC.
14. The prosecutrix (PW-9) introduced for the first time in court the allegation that the respondent-accused came to her house and called her out on the pretext that her Kaka had arrived. This crucial fact was conspicuously absent both from her police statement and from her statement recorded under Section 164 Cr.P.C. Such a vital improvement on a material particular that goes to the very root of the allegation of abetment renders that portion of her evidence wholly untrustworthy and liable to be discarded.
15. The complainant (PW-6), father of the prosecutrix, admitted long- standing monetary enmity with the family of the respondent-accused and turned hostile on material particulars concerning the role of accused No.2. When the case rests entirely on interested testimony coupled with admitted enmity and lacks independent corroboration, courts are bound to scrutinise such evidence with the greatest caution and circumspection.
16. The sole purported eye-witness (PW-7, Jenabhai) claimed to have seen the minor prosecutrix being taken away on a bicycle yet raised no alarm, made no attempt to intervene or chase, and did not report the matter promptly. This wholly unnatural and passive conduct of a close paternal uncle renders his testimony completely unreliable on the question whether the respondent-accused played any active or abetting role, as unexplained inaction of an eye-witness in such circumstances destroys the credibility of his evidence.
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17. No independent witness and no recovery links the respondent- accused No.2 to the alleged offence. The entire case against the accused No.2 hinges on the solitary improved version of the prosecutrix, which stands uncorroborated in material particulars.
18. In an appeal against acquittal, the High Court cannot interfere merely because another view is possible; interference is permissible only when the learned Sessions Court's view is shown to be perverse, impossible or based on conjectures and surmises. Learned APP has failed to point out any such infirmity exists in the present case. The appreciation of evidence by the learned Sessions Court is fair, reasoned and legally sustainable.
19. The cumulative effect of the vital improvements, hostile and interested witnesses, unnatural conduct of the eye-witness, admitted enmity, and total absence of corroboration leaves no scope for interference. The prosecution has failed to prove the charges under Sections 363, 366 read with Section 114 IPC against the respondent- accused No.2 beyond all reasonable doubt. The view taken by the learned Sessions Court being a plausible and reasonable one, the respondent- accused is entitled to the benefit of doubt.
20. At this stage, this Court may refer to the decision of the Hon'ble Apex Court in the case of Rajesh Prasad v. State of Bihar and Another [(2022) 3 SCC 471] encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 Page 9 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined SCC 415] "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Sessions Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Sessions Court."
21. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023) 9 SCC 581] the Hon'ble Apex Court has summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1. The acquittal of the accused further strengthens the presumption of Page 10 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025 NEUTRAL CITATION R/CR.A/581/2005 JUDGMENT DATED: 04/12/2025 undefined innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the Sessions Court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
22. In light of the above legal position and for the reasons recorded in the foregoing paragraphs, coupled with the fact that the case of the prosecution does not get support from the evidence recorded by the learned Sessions Court, the present appeal fails and is accordingly dismissed. Records and Proceedings, if any, be remitted to the Court concerned forthwith.
(ILESH J. VORA,J) (R. T. VACHHANI, J) MVP Page 11 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:36:35 IST 2025