Gujarat High Court

State Of Gujarat vs Prashant @ Rakesh Jagdishbhai Dave on 2 August, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                              R/CR.A/194/2005                                  JUDGMENT DATED: 02/08/2025

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                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/CRIMINAL APPEAL NO. 194 of 2005


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                        and
                        HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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                                      Approved for Reporting                  Yes           No
                                                                                            
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                                                      STATE OF GUJARAT
                                                            Versus
                                             PRASHANT @ RAKESH JAGDISHBHAI DAVE
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                        Appearance:
                        MS JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No.
                        1
                        MR RAXIT J DHOLAKIA(3709) for the Opponent(s)/Respondent(s) No. 1
                        ==========================================================

                           CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                                 and
                                 HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                                 DESAI

                                                          Date : 02/08/2025

                                              ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI)

1. The complainant State, being aggrieved by the

judgement and order passed by the learned Additional

Sessions Judge, Fast Track Court No. 3, Jamnagar in

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Sessions Case No. 51 of 2004 whereby, the respondent

accused Prashant @ Rakesh Jagdishbhai Dave came to be

acquitted for the offence alleged to have been committed

under Sections 363, 364(A) and 408 of the Indian Penal

Code, has preferred the present appeal under Section

378(1)(3) of the Code of Criminal Procedure, 1973.

2. As per the prosecution case, the original

complainant Rashminbhai Hariprasad Pancholi had

lodged a complaint on 09.08.2003 against the respondent

accused, for he having kidnapped his minor son, Devarshi

@ Bholu, aged one and half years, and also for having

sold off four television sets from his shop named Gayatri

Electronics, wherein, the respondent accused was

employed as a worker.

2.1 It is further mentioned by the original complainant

in his complaint that, the respondent accused had

kidnapped his minor son in his absence from his house in

the presence of his wife. The respondent accused

originally belonged to Khandwa, Madhya Pradesh.

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However, he was not residing there.

2.2 The Investigating Officer after registering the

complaint had recorded the statements of witnesses who

were conversant with the facts of the complaint, and had

also drawn the relevant pachnamas in the presence of

panch witnesses. Upon completion of investigation,

charge-sheet came to be filed and the case was

committed to the Court of Sessions, in view of the offence

which was alleged to have been committed by the

respondent accused being triable by the Court of

Sessions.

2.3 The prosecution to bring home the charge against

the accused had examined as many as 9 witnesses and

had submitted 13 documents. Upon completion of oral

evidence, the learned competent court had recorded the

statement of the accused under section 313 of the

Criminal Procedure Code, and after hearing the

submissions of the learned advocates of either sides, the

learned Additional Judge of Fast Track Court No. 3

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Jamnagar was pleased to acquit the respondent accused

of the offences committed under Section 363, 364A and

408 of the IPC.

3. Heard learned APP Ms. Jirga Jhaveri for the

complainant State and learned advocate Mr. Raxit

Dholakia for the respondent accused. Both the learned

advocates have taken us through the relevant and

respective evidence, which came to be rendered before

the learned competent court.

3.1 Learned APP Ms. Jhaveri has accordingly urged the

court to allow the appeal in the light of the judgement of

the learned Additional Sessions Judge being erroneous

and not in consonance with the facts and law of the case.

3.2 Learned advocate Mr. Raxit Dholakia has urged to

dismiss the appeal preferred by the complainant State in

the light of the observations, discussion and evaluation of

the evidence of the learned Additional Sessions Judge as

reflected from the judgement in Sessions Case No. 51 of

2004.

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4. At the outset, P.W. 1, the original complainant

Rashminbhai Hariprasad Pancholi, who was examined

vide Exh. 7, in his examination-in-chief had mentioned the

facts, as narrated by him in his complaint at Exh. 21. He

had further stated in his examination-in-chief that, after

his son Devarshi alias Bholu was kidnapped by the

respondent accused, he had received a call from him

asking for a ransom of Rs. 5 lakhs, and thereafter, on the

next day, his minor son was found in the custody of one

Zareenaben of Rajkot. The original complainant had also

mentioned in his examination-in-chief as regards he

having inquired about the respondent accused from

Hakubha Darbar and Anilbhai - the owner of Swastik

Electronics. It is pertinent to observe that, the

prosecution had neither examined Hakubha nor Anilbhai

nor Zareenaben as witnesses. From the deposition of this

witness, it also appears to be mysterious as to how his

minor son Devarshi alias Bholu reached Rajkot and was

found from the custody of Zareenaben. This witness had

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also admitted in his cross-examination that, the

respondent accused was his partner in his shop to the

tune of 50% and that though, he was a conductor with

GSRTC, he had not sought any permission from his

department to run the business of Gayatri Electronics.

5. The prosecution had examined P.W. 2 - Rekhaben

Rashminbhai Pancholi vide Exh. 10, who was the wife of

P.W.1 Rashminbhai, the original complainant and the

mother of minor Devarshi alias Bholu. In her

examination-in-chief itself she had stated that, though on

the day of incident the respondent accused had taken

their son Devarshi alias Bholu for playing and she had

gone to drop their daughter Aishwarya to school, after

she having returned, her son Devarshi alias Bholu had

also returned home. She had also stated in her

examination-in-chief as regards they not having received

any phone call and she not having apprised her husband

about someone having taken away Devarshi alias Bholu.

She had further stated that, her husband had not

informed her about any missing things from their shop,

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and it had never happened that their son Devarshi alias

Bholu had gone to play with some person and thereafter,

he having gone missing. She had also admitted that, they

had not received any phone call asking for ransom for the

release of their son.

6. Though this witness was declared as hostile for not

having supported the prosecution case, she being the

mother of the minor child, her version was definitely of

much importance. There was no reason for her to take a

different stand than that which was taken by her

husband. She had denied the averments of her statement

in the cross-examination conducted by the learned APP

after she was declared as hostile.

7. It is pertinent to note that the IO had not recorded

statements of any independent witnesses from Upasana

Society where P.W.1 - the original complainant

Rashminbhai Hariprasad Pancholi and his wife P.W.2 -

Rekhaben Pancholi were residing.

8. The learned Additional Sessions Judge, while

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deciding the three points of determination which were

framed by him, in the "negative" as regards the charge

against the respondent accused, had discussed and

evaluated the evidence at length in his judgement. It

would be apposite to refer to the observations of the

learned Additional Sessions Judge in paragraph no. 18 of

the judgement, wherein, it had been observed that, the

prosecution had grossly failed to prove beyond

reasonable doubt that, the respondent accused had

kidnapped the original complainant's minor son Devarshi

alias Bholu for a ransom of Rs. 5 lakhs, and also having

sold off four television sets from the original

complainant's shop, and having taken the money of the

same. The IO had not recorded the statements of the

customers whose television sets were lying for repairing

in the complainant's shop. The sale invoices of such

television sets were also not produced. The entire

complaint as well as the evidence which had come on

record was only pertaining to suspicion, which was raised

by the original complainant.

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8.1 Thus, the learned Additional Sessions Judge had

rightly disbelieved the oral as well as documentary

evidence which was rendered by the prosecution in

Sessions Case No. 51 of 2004, and had factually and

legally concluded that, the prosecution had failed to

prove the charge against the respondent accused beyond

reasonable doubt and consequently having acquitted the

accused.

9. At this stage, it would be appropriate to refer to the

observations of the Hon' Apex Court regarding the scope

of interference in acquittal appeals in the case of

Chandrappa & Ors. Vs. State of Karnataka reported

in 2007 (4) SCC 415, wherein, the Apex Court has

observed as under:

"Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court stated:

"While deciding an appeal it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of

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appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".

From the above decisions, in our considered view, the following general principles regarding powers of 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 Code of Criminal Procedure, 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 emphasize 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

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presumption in favour of the accused. Firstly, the presumption of innocence 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 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.

9.1 In the case of Sanjeev v. State of Himachal

Pradesh reported in 2022 (6) SCC 294, the Hon'ble

Apex Court has held as under:

"7. It is well settled that:-

7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).

7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v. State of Uttar Pradesh).

7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."

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9.2 Similarly, in the case of Bhupatbhai Bachubhai

Chavda and another reported in [2024] 4 S.C.R. 322,

the Hon'ble Apex Court has held as under:

6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to.

Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden

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put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

...

11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."

9.3 Thus, in case the appellate court agrees with the

reasons and the opinion given by the competent court

below, then the discussion of evidence at length is not

necessary. In light of the above settled principle of law

laid down for acquittal appeals, we have briefly

reppreciated the evidence led by the prosecution in the

present Sessions Case.

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10. It is also a settled legal position that in acquittal

appeals, the appellate court is not required to re-write the

judgement or to give fresh reasonings, when the reasons

assigned by the Court below are found to be legally just,

valid and proper. Such principle is laid down by the

Hon'ble Apex Court in the case of State of Karnataka

Vs. Hemareddy, reported in AIR 1981 SC 1417,

wherein, it is held as under:

"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

10.1 Thus, in case the appellate court agrees with

the reasons and the opinion given by the competent court

below, then the discussion of evidence at length is not

necessary.

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11. The competent court had in depth analysed the oral

as well as documentary evidence on record, and had

come to the conclusion that, the charges against the

accused were not proved beyond reasonable doubt by the

prosecution. Upon overall appreciation of the evidence