Gujarat High Court
State Of Gujarat vs Ismile Jusabbhai Chavda on 20 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1073 of 2002
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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STATE OF GUJARAT
Versus
ISMILE JUSABBHAI CHAVDA
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Appearance:
MR JK SHAH APP for the Appellant(s) No. 1
MR PRATIK B BAROT(3711) 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 : 20/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 20/07/2002 passed by the learned Joint District Judge & Additional Sessions Judge, Fast Track Court, Jamnagar in Sessions Case No. 173 of 2001 for the offences punishable under Sections 376 and 324 of Indian Penal Code under Section 135 of the Bombay Police Act, the appellant - State has preferred the present appeal under Section 378 of Page 1 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined 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:
2.1. The prosecution case in brief is that about one month prior to 15/9/2001, the victim of this incident had been to Bet-Dwarka, where she met a Saint. The said saint had promised her to arrange for her accommodation in Bet-Dwarka. That on 14/9/2001 at night at about 1-15 a.m., she was waiting at Mithapur for going to Bet-Dwarka. At that time a water tanker came and she sat in the water tanker along with her daughter for going to Bet-Dwarka. The accused was the driver and they were alone in the truck. The victim was to get down at the Railway Station.
However, the truck was taken to a lonely place near seashore. The accused thrown away the victim and dragged her to the back side of the tanker. Thereafter, he committed rape on her against her will. That he also inflicted knife blows on the wrist and palm of the victim. Thereafter, the accused went away with his tanker.
2.2. On these facts, the complaint was filed with Okha Police Station. The Police after investigation charge-sheeted the accused for the aforesaid offences. After investigation, chargesheet was filed before the learned JMFC, Court. However, as the said Court lacks jurisdiction to try offence under Section 376 IPC, the case was committed to the Court of Sessions and it was registered as Sessions Case No. 173 of 2001 for trial. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent-accused so as to obtain explanation/answer as provided under Section 313 of the Code. In the further statement, the respondent-accused denied all incriminating circumstances appearing against him as false and Page 2 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined further stated that he is innocent and a false case has been filed against him. After examining the evidence, witness testimonies and submissions from both sides, the learned Court below recorded the finding in favour of the respondent-accused acquitting him of the charges levelled against them.
3. We have heard learned APP for the appellant - State and minutely examined oral and documentary evidence adduced and produced before the learned Sessions Court concerned.
4. Mr. J K Shah, learned APP appearing for the appellant - State submits that the impugned order of acquittal is required to be interfered with as the evidence produced on record proves the involvement of the accused in the commission of crime in question. He has further submitted that evidence of the victim and her girl clearly indicates the involvement of the accused in commission of the crime and therefore this Court may not interfere with the said finding. It is further submitted that the complainant, who was raped by the accused had narrated the entire incident as stated in the FIR in her deposition before the Court and no such contradiction or omission has come on record to discard her evidence. However, the learned Sessions Judge has committed serious error in acquitting the accused.
4.2 Learned APP has further submitted that insofar the offence under Sections 376 of the IPC are concerned, the evidence of the victim girl is sufficient to surface the involvement of the accused and here in the present case the victim has supported the case of prosecution and the said evidence also gets corroboration with the medical evidence and thus the said offence also proved. However, the learned Sessions Court has not considered the said evidence and therefore it is submitted to quash the Page 3 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined finding of the trial Court in this regard and to convict the accused for the said offence.
4.3 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. He would therefore submit to allow this appeal.
5. On the other hand, learned Advocate Mr.Barot appearing for the respondent - accused has submitted that prosecution has failed to prove the charges levelled against the respondent - accused as the evidence of the complainant is doubtful and no plausible reasons are shown by the prosecution as to why their evidence ought to have been believed since they are the interested witnesses and thus their evidence are not reliable and believable. He has further submitted that there are omissions and contradictions in the evidence of the prosecution witnesses and the same cannot be ignored.
5.1 It is submitted that no such independent witness has been examined by the prosecution to believe that the accused committed the rape on the victim and merely because the victim had stated and lodged the complaint and that too after a period of one month, the evidence produced by the prosecution is not sufficient to prove the charges levelled against the accused. He would therefore submit to dismiss the present appeal while confirming the judgment and order of acquittal passed by the learned Sessions Court.
6. Heard the learned APP for the appellant - State and learned Advocate appearing for the respondents - accused and perused the Page 4 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined deposition of witnesses, as also documentary evidence placed on record as well as the order passed by the learned Sessions Court.
7. At the outset, evidence of PW 9 - victim lady, complainant examined at Exh.59 is required to be seen. The said witness has deposed in her testimony about the occurrence of the incident. This Witness has deposed in her testimony that while she alongwith her daughter intended to go Bet-Dwarka and they were standing on the road, at that time, accused came in one truck which was stopped by them by raising the hand and accused told them that he will leave them at Bet-Dwarka. This Witness has further deposed that thereafter they sat in the cabin of the truck and accused took the truck to the seashore side and administered threat her to kill by throwing them in the sea if she would not allow to have sexual intercourse with her. This Witness has further deposed that accused also administered threat to kill her daughter if her daughter makes any shout. Witness has deposed in her testimony that thereafter the accused committed rape on her against her will and wish. This Witness has deposed in her testimony that accused gave two-three knife blows between the elbow and wrist portion, as also on the palm and on the head and therefore she was bleeding. Witness has deposed in her testimony that complaint was filed. This Witness has been cross- examined by the other side; where-from important contradictions and omissions have come on record. She has admitted of having raped earlier by two unknown persons and for that complaint was also filed. This Witness has admitted in her cross-examination that some complaint of rape was also filed by her against K.S.T. Sir and Sagardan Gadhavi for committing rape at Dwarka Guest House. This Witness has admitted in her cross-examination that no such description of the accused is stated in the FIR; neither the registration number of the truck is mentioned. Thus, in the cross-examination, omission and contradictions in relation to the Page 5 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined place of incident as well as the presence of her daughter in consonance with the other evidence surfaced and therefore the evidence of the complainant comes under the shadow of doubt.
8. PW No.10 - Jayshriben Ravubha Sarvaiya, daughter of the victim has been examined at Exh.60. The said witness is the child witness and she deposed in her testimony that while they boarded in the truck, she got to sleep and in the morning when she wake up, her mother told her that accused committed rape on her and she was bleeding from her hand and on being asked, her mother told her that accused gave knife blow. However, the said witness is declared hostile by the prosecution.
9. Prosecution Witness No.1-Dr. Vinodray Trivedi, has been examined at Exh.11. In his deposition, he has stated that victim had been produced before him and she was given the preliminary treatment and at that time there were wound on the surface portion of the palm and wrist and bandage was applied and certificate of injury was also given. However, during cross-examination, witness has admitted that neither the patient nor the Police Constable who brought to the victim for treatment has given any history before him.
10. Prosecution Witness No.5 - Dr. Bindu Sainath, who examined the victim girl has been examined at Exh.46. She has deposed in her testimony that victim gave history of commission of rape by some unknown persons while they were going to Okha in the truck. This Witness has deposed examined the victim and found certain injuries on the right hand and right wrist where-from she was bleeding, the injuries were also found on backside of the head. This Witness has deposed in her testimony that there are no marks of injury on the chest and on private part of the victim as also no marks of injuries were on the waist and her Page 6 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined vaginal membrane was intact and during the cross-examination this witness has admitted that probabilities of having sexual intercourse with the victim cannot be ruled out and to that effect certificate was issued at Exh.47. This Witness has also admitted in the cross-examination that when he examined the victim no such marks of having sexual intercourse within short span has been noticed.
11. All the Panch witnesses to the Panchnama drawn by the IO have turned hostile and has not supported the case of prosecution.
12. Thus, from the aforesaid evidence placed on record by the prosecution, it appears that in the FIR lodged by the victim woman at Exhibit-62 after the incident, she has not mentioned the name or description of the accused. She has merely stated that the man "said he was a Muslim," and apart from that, no other particulars have been provided by which the identity of the person committed rape rape could be established. Furthermore, there exist material contradictions between the version of events stated in the victim's testimony and the facts stated by her in the FIR at Exhibit-62. Additionally, as admitted by the victim herself, she had previously lodged four to five rape complaints against unknown persons and therefore if any woman had been subjected to rape four or five times earlier by unknown individuals, it is not possible to believe that she would make some venture to go out alone at night in such a manner; nor is it credible that she would sit in a tempo with a stranger and travel during nighttime. Moreover, she claims to have been sitting in the tempo and thereafter subjected to rape during nighttime, she has nowhere stated that there was sufficient light at the place of incident, and therefore the victim woman could have identified the person who committed rape on her. She also identified the accused during the test identification parade. However, prior to this, the police had shown the Page 7 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined accused to the victim, and as per her own admission, when the police showed her the accused, she had identified him at that time itself. Hence, the identification made before the police cannot be treated as admissible evidence. The only identification is the one made by the victim woman before the Court. Therefore, it cannot be conclusively held that the accused was the person who committed rape upon her. When the accused is sitting in the dock, it is natural for any witness to identify him. There are material contradictions between the victim's testimony and her cross- examination regarding how the incident happened, how she reached the place of incident, and what happened after the alleged rape. Significant inconsistencies also exist in her deposition before the Court, in complaint lodged by her, and the medical history given by her before the doctor after the incident and such contradictions are of such nature which cannot be ignored.
13. Furthermore, regarding the injuries she claims to have suffered, she has given an exaggerated version. If the injuries she described had in fact been inflicted upon her, the doctor who provided her initial treatment and the doctor who later examined her at G.G. Hospital, Jamnagar, would have noted such injuries. However, except for one incised wound on her hand, no doctor has testified to having seen any other injuries. Therefore, the testimony of the victim lady is not reliable, and substantive piece of evidence to convict the accused. Even for the sake of assuming that rape was committed upon her and that she suffered knife injuries, it still cannot be said with certainty that it was the present accused who committed the rape and inflicted the knife injuries. This is because the police had shown the accused to her before the test identification parade held, and outside the place where the parade was conducted, she had seen the accused handcuffed and tied with a rope. Further, the learned Executive Magistrate who conducted the identification parade did not Page 8 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined select dummy persons having descriptions similar to that of the accused. Therefore, the entire procedure of the identification parade, and the identification made by the victim woman, becomes doubtful.
14. In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [(1983) 1 SCC 143], the Hon'ble Apex Court has held that if the names or description of the accused persons are not given in the FIR and accused was identified before the Court after certain gaps of the incident, in such circumstances, if TI parade is held, the same is not reliable to connect the accused with the crime.
15. A reference may also be made to the decision in case of Vinod alias Nasmulla vs. State of Chhattisgarh [(2025) 4 SCC 313] wherein the Hon'ble Apex Court has described the evidentirary value and purpose of the test identification parade. Relevant observations made in paragraphs no.21 and 22 reads thus:
"21. A test identification parade under Section 9 of the Evidence Act, 18724 is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is, firstly, to ensure that the investigating agency is proceeding in the right direction where the accused is unknown and, secondly, to serve as a corroborative piece of evidence when the witness identifies the accused during trial. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity.
22. In Rameshwar Singh v. State of Jammu and Kashmir, a three-Judge Bench of this Court succinctly summarized the evidentiary value of the TIP as under:
"6....... The identification during police investigation ....... is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in Court. The identification proceedings ...... must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of Page 9 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined corroborating or contradicting the statement in Court of the identifying witness."
Thus, if the witness who identified a person or an article in the TIP is not examined during trial, the TIP report which may be useful to corroborate or contradict him would lose its evidentiary value for the purposes of identification."
16. Thus, the evidence of the victim lady produced by the prosecution before the Court appears to be doubtful. From the evidence emerging from the record, the prosecution has failed to prove the charge against the accused beyond all reasonable doubt and therefore, and the learned Sessions Court has rightly recorded the findings recording acquittal of the respondents - accused.
17. 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 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:Page 10 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025
NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined (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 Page 11 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025 NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial 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 trial court."
18. 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 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 trial 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."Page 12 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025
NEUTRAL CITATION R/CR.A/1073/2002 JUDGMENT DATED: 20/11/2025 undefined
19. 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 Special 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) sompura Page 13 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Thu Nov 20 2025 Downloaded on : Thu Nov 20 23:26:40 IST 2025