Gujarat High Court
Prem Bahadur Sundar Bahadur @ Shersingh ... vs State Of Gujarat on 30 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1441 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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PREM BAHADUR SUNDAR BAHADUR @ SHERSINGH BIST(GURKHA)
Versus
STATE OF GUJARAT
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Appearance:
MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/09/2025
ORAL JUDGMENT
1. The appellant as an accused has been convicted under Sections 363 and 366 of the Indian Penal Code (IPC). Under Section 363 of IPC, the appellant was sentenced to undergo 5 years of rigorous imprisonment and to pay a fine of Rs.1,000/- and in failure of payment of fine, to undergo further simple imprisonment of one month. Under Section 366 of IPC, the appellant was Page 1 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined sentenced to undergo 5 years of rigorous imprisonment and pay a fine of Rs.1,500/- and in default of payment of fine, to undergo further simple imprisonment of one and a half month. The sentences were ordered to run concurrently. The order was passed by the learned Presiding Officer, Fast Track Court No.3, Vadodara on 07.09.2007 in Sessions Case No.19 of 2007. Aggrieved by the judgment and order of conviction and sentence, the accused has preferred an Appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.PC.')
2. The facts of the case as could be noticed from the record suggest that on 14.08.2006, a complaint was given by Manibhai Govindbhai Tadvi alleging that on 13.08.2006, the appellant-accused abducted his daughter aged about 17 years, between 00.30 hours to 04.00 hours from his legal guardianship. The accused was a married man with two wives and the abduction Page 2 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined of the minor daughter of the complainant was with the intention to make the minor as accused's third wife and for that purpose, he had enticed the minor for marriage and for illicit intercourse.
3. It is further recorded that the accused took the minor girl to Banswada, Rajasthan, from 15.08.2006 to 23.08.2006, rented a place in Village Chanduji ka Gada where the accused entered into sexual intercourse with the minor girl against her consent. After investigation, the charge-sheet was filed under Sections 363, 366 and 376 of IPC.
4. During the course of the trial, 7 witnesses were examined. After the trial, the charge under Section 376 of IPC was not proved against the accused and therefore, the accused came to be acquitted for that offence.
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5. Learned advocate for the appellant Mr. Ramnandan Singh submitted that the order of conviction and sentence which has been passed is only on moral grounds, where actually no witness has supported the case of the prosecution case and it was under
misconception and suspicion that the First Information Report (FIR) was filed. It is alleged that the father had seen the minor daughter talking with the accused, as the accused was staying on the upper floor of their house and when the accused was not found, the father and mother of the minor under suspicious belief of accused abducting the minor had filed the case.
6. Referring to the deposition of the victim girl- PW5, learned advocate Mr. Ramnandan Singh submitted that the victim was never taken away by the accused. She had admitted that she left the house on her own will and had gone to Jambusar, where the evidence has come on record as given by victim as well as the Page 4 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined father and mother that the victim was at her maternal uncle's house. It is submitted that the allegation of the victim being taken to Village Chanduji ka Gada by the accused and keeping the minor girl in a rented property has not been proved and nothing has come on record to prove the fact that the accused had removed the victim girl from the legal guardianship of the parents.
7. Learned advocate Mr. Ramnandan Singh submitted that the learned Judge was required to examine the facts of the matter in view of the testimony where it was found during the trial, of denial of the victim girl supported by the deposition of the parents as legal guardian and hence, there would be no case under Sections 363 and 366 of IPC.
8. Per contra, it is submitted by learned Additional Public Prosecutor Ms. Monali Bhatt that the charge was framed against the accused, and it was proved that the Page 5 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined accused had enticed the minor girl, to compel her to marry him since he was a Nepali and was having two wives with children and he wanted the minor girl to be his third wife. The charge further states that he had taken the girl from the legal guardianship of the parents and resided in a rented room from 15.08.2006 to 23.08.2006. Thus, it is submitted by learned APP that the age of the victim being below 18 years and more precisely, 17 years and when nothing contrary has come on record then the case which has been believed by the learned trial Court Judge under Section 363 and 366 of IPC is required to be upheld.
9. From the evidence of the complainant recorded as PW1, it can be noticed that he is a labourer / watchman working in Welcome Hotel and his wife is working in a private dispensary. They have in total 5 children, the victim was aged 17 years. The father stated the date of birth of the victim as of 01.04.1989. As per his testimony on 12.08.2006 when he came Page 6 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined back from his night shift in the morning, he saw that his eldest daughter was not at home. Thereafter, the wife informed that the victim girl as well as the accused was also not there. The accused was residing in a Room No.108 and therefore, the mother felt that both must have eloped. As per the father, his wife came to know that the daughter was not at home when she had gone in the early morning to answer the nature's call. Thereafter, they made enquiry with the relatives of the accused at Vadodara City but they were not found there. The father stated that prior to incident, he had seen his daughter talking with Prem Bahadur and since he was not there in the room, he had a suspicion, enquired from the police and on the same day, he gave a police complaint Exhibit 8. The police had asked for evidence of age and therefore, he had produced a photocopy of the birth certificate of the daughter. The witness referred to Exhibit 9 which is the photocopy of the School Leaving Certificate from Nagar Prathmik Shikshan Samiti, Vadodara. Page 7 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025
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10. In the cross examination, the witness was confronted with the fact that it was the wife-the mother of the victim who had scolded her and therefore, the girl had left the house. Only on suspicion, the father stated that he had given the complaint. He stated that his wife had got angry since the victim girl left the house and after the police enquiry, they found the victim girl at the maternal uncle's house. He confirmed that the victim was not found with the accused and further, affirmed in the cross examination that the accused had not taken his daughter away.
11. Learned APP Ms. Monali Bhatt has referred to the question which was put forth by the Court during the trial where the witness-father was asked to name the maternal uncle, however, the witness could not name so and such conduct of the father was noted in the deposition. The further question of the Court which followed which would be required to be noted was whether the victim was found at the house of the Page 8 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined brother-in-law, to that the witness stated that he had not found her.
12. The evidence of the father cannot be considered as contrary or strange since the complainant standing in witness box when enquired about the name of the brother-in-law, he could not have named him. However, that fact cannot be given much weightage since the mother of the victim girl was also examined during the trial as PW4. The evidence of the father totally denies any criminal act of the accused.
13. The case with the age of the victim girl as 17 years would not bear much importance when the father himself is not making any complaint in the examination-in-chief. The father has not been declared hostile. The evidence of the complainant has not been confronted. A perusal of the complaint would show that there was not much to confront. Hence, it could be concluded that the complaint was given by Page 9 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined the father on the basis of suspicion against the accused.
14. The mother as PW4 could not give the exact date of birth of the victim daughter but could say that she was born on 1st April. According to the mother, on that day, the daughter had some verbal spat with her and in anger, the victim had left the house. The mother stated that victim had gone to her maternal uncle's home. Since the accused was living on the upper floor and when enquired, he was not found, therefore, they felt that the accused must have abducted their daughter. Mother stated that she had informed this fact to her husband and when victim was not found on that day, so they had given a complaint. As per the mother, after about a week, they found the daughter. She had stated that she had informed the police in her statement that it was the accused who had induced the daughter and alluring her had taken the victim daughter with him.
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15. In the cross examination, it is recorded that her marriage took place 25 years ago and after two years of marriage, the victim girl was born. She stated that the accused was the Chowkidaar of the flat. She stated that he was talking with her daughter and therefore, had rebuked her. The quarrel which had occurred was because of watching television and at that time, the victim girl had threatened to leave the house and when the accused was not found at home, on the basis of suspicion, they had given a complaint against him.
16. Both the parents have denied of the accused taking the victim girl from their legal guardianship. The evidence of the victim was recorded as PW5. She has stated that she was the eldest of all the siblings. They were staying in the quarters of 2 nd Floor of Vadodara Municipal Corporation compound. They were staying there since the last two years. The victim stated that she was not having any connection with the accused nor she had any love affair with the accused. The Page 11 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined accused had never asked her to marry him and be his wife. She had further stated that the accused had never stated that since she was 17 years, they would have to wait till she attains the age of 18 years. The victim also denied that the accused had taken her to Rajasthan. She also denied the suggestion that on 12.08.2006, they had decided to run away during the night hours. The victim was declared hostile and in the cross examination, it had come that after 6-7 days, her parents had brought her home. She denied of stating before the police of having acquaintance with the accused while walking on the stairs and that she had left the house when she was about 17 years. She also denied that she had given a statement to the police that the accused had asked her to marry him and since her parents were very strict and therefore, she had asked him to wait till the age of 18 years. She also denied that she has stated in the police statement that they were often meeting each other. She affirmed that she had knowledge that the accused Page 12 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined had gone to Rajasthan for his job. In the cross examination, she affirmed that while she was talking with the accused with regard to the light bills, once her mother saw her and scolded her. She also stated that the quarrel with her mother was regarding watching of television and since her mother had rebuked her, she left the house on being furious. She had gone to her maternal uncle-Thakor mama's house at Jambusar without informing anyone in the family. She had even told her maternal uncle not to inform her family and she had informed the police about the name of the maternal uncle and when the mother came to know about it, she had brought her home, thereafter, they had gone to the police. She has also affirmed about her medical check-up and the medical check-up of the accused was done.
17. The rest of the evidence is of the Doctors, PW2 and PW3, and the same would require no reference since the case under Section 376 of IPC has not been Page 13 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined believed. Even the factum of the opinion of Doctor regarding the age would now become insignificant, in view of the evidence of both the parents as well as the victim girl where it has been stated on record that, she had not gone alongwith the accused nor the accused had enticed her to join him. Nothing has come on record as a proof that the accused had taken the victim girl alongwith him to Rajasthan.
18. The Investigating Officer was examined at PW6 who stated, that on 12.08.2006, the family after their dinner watched television and at about 12.30 pm had gone to sleep. In the morning, the mother did not find the victim girl in her bed and the accused was not found in Room No.108. On the basis of suspicion, they felt that their daughter must have left with the accused. The Investigating Officer stated that the complainant had seen the daughter talking with the accused and at that time, he had scolded her. It was also stated that it was the accused who had taken the Page 14 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined girl from the legal custody of the parents, enticing her to enter into marriage.
19. The deposition of the Investigating Officer would show that earlier the accused had stayed for about one month in Banswada, Rajasthan with his brother-in-law and was working there as a watchman. The Investigating Officer stated that they had received the evidence that the accused had taken the victim. He under the instructions of the superior Officer alongwith the Head Constable-Kashanbhai Mohanbhai and the necessary staff had started for Rajasthan but since it was raining heavily , they returned back from Rajasthan to Dungarpur. Again had enquired, under the permission of the superior officer, and with the assistance of a person, the accused was found at the FCI Godown, Udaipur and when they enquired, it came to their knowledge that on 13.08.2006, in the afternoon, the accused had come with a girl, and had induced the girl for marriage. They were staying in a Page 15 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined rented house in Village Chanduji ka Gada. The panchnama of the rented house was drawn. As per the Investigating Officer on 12.08.2006 at night about 2.00 pm the accused as decided alongwith the victim girl, had left from Vadodara to Tandalja in a rickshaw and had come at the Railway Station. Thereafter, from S.T. Depot, they sat in a bus and had reached Banswada and on 13.08.2006, where the accused stayed with the brother-in-law, and then, they stayed in a rented house at Village Chanduji ka Gada from 14.08.2006. During that period, the Investigating Officer stated that they had established sexual relation. The Investigating Officer stated that the accused was already having two wives and five children at Nepal. Since there was no law regarding the number of wives in Nepal, the accused had decided to make the victim girl his third wife.
20. The evidence of the Investigating Officer has not been supported by any independent witness. The Page 16 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined Investigating Officer had recorded the statement of the owner of the house of the rented premises and he has confirmed in the cross examination, that he had recorded the statement of the owner of the house-Uday Lal Kalal. However the said person had not been examined to prove that accused alongwith victim had resided in his house. I. O. affirmed that in the charge- sheet, no one has been named as PSO of the matter. The allegations of the victim being taken by the accused at Rajasthan had not been proved.The learned trial Court Judge has recorded the medical evidence but has not believed Section 376 of IPC against the accused. Now the only fact which becomes necessary to be examined is whether the accused had kidnapped the girl from the lawful guardianship of the parents. Section 361 of IPC defines kidnapping from legal guardianship where the girl under the age of 18 years is taken or enticed from the keeping of the lawful guardian of such minor, without consent of such guardian, then offence would be considered as Page 17 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined kidnapping from lawful guardianship.
21. Section 361 of the IPC is extracted hereinafter :-
"361. Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
22. A complaint against the accused was given on the basis of suspicion. The victim was found to be talking with the accused , it was stated that he was staying in Flat No.108 and therefore, on the basis of suspicion, as per the deposition of the father and mother, the FIR was lodged. The victim girl stated that she had gone to Thakore mama's house. She had also informed the police about the said fact. Nothing has come on record to contradict the same. The parents have also stated Page 18 of 20 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Oct 03 2025 Downloaded on : Sat Oct 04 09:42:11 IST 2025 NEUTRAL CITATION R/CR.A/1441/2007 JUDGMENT DATED: 30/09/2025 undefined that the victim girl was found from the house of the maternal uncle. The learned Judge was required to examine this evidence on record of the parents. The victim was declared hostile. There was no reason to disbelieve the parents when the father himself stated that it was only on the basis of suspicion the complaint was given. The allegation of the accused taking the victim girl and staying in a rented house at Rajasthan has not been proved,while contrary evidence has come on record wherein it has been stated by the victim girl and the parents that she had left the house as she was angry with the mother. It is clarified that the victim girl had gone to her mama's house.
23. In view of the evidence on record, the conviction order passed by the learned trial Court become erroneous when the ingredients regarding kidnapping from the lawful guardianship has not been believed so subsequent allegation of illicit sexual relationship, also does not become believable.
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24. In the result, the Appeal succeeds. The judgment and order passed by the learned Presiding Officer, Fast Track Court No.3, Vadodara on 07.09.2007 in Sessions Case No.19 of 2007 is set aside. The appellant is acquitted of all the charges levelled against him. Bail bond stands discharged. Record and proceedings, if any, be sent to the concerned Trial Court forthwith.
Sd/-
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