Gujarat High Court

State Of Gujarat vs Mumtazben Alias Sangita Nabiji Ganchi on 24 July, 2025

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                             R/CR.A/166/2014                                       JUDGMENT DATED: 24/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 166 of 2014

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
                        and
                        HONOURABLE MR.JUSTICE D. M. VYAS

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                                    Approved for Reporting                        Yes           No

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                                                 STATE OF GUJARAT
                                                       Versus
                                     MUMTAZBEN ALIAS SANGITA NABIJI GANCHI & ORS.
                        ==========================================================
                        Appearance:
                        MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
                        RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
                        ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE CHEEKATI
                                MANAVENDRANATH ROY
                                and
                                HONOURABLE MR.JUSTICE D. M. VYAS

                                                              Date : 24/07/2025

                                             ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE D. M. VYAS)

1. Assailing the judgment and order dated 02/12/2013 of

the learned Additional Sessions Court, Vadodara in Sessions

Case No.129 of 2011 on the file of the said court whereby

respondents accused were acquitted for the charges levelled

against them giving benefit of doubt, the instant appeal has

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been preferred by the State.

2. Briefly stated, the facts of the prosecution case are as

follows:

2.1. On 14/03/2011, in between 18:00 to 21:00 hours,

accused no.1 with help of others, hatched criminal conspiracy

with a clear intention to fulfill their motive and as a part of the

conspiracy, accused no.1 by possessing false name being

'Sangita' taken the complainant near Padra Bus Stand and

gave intoxicant drug in cold drink. Thereafter the

complainant became unconscious and taken to the house of

accused no.1 at village Darapura where clothes of the

complainant were removed and threat was administered to

the complainant for lodging complaint about commission of

rape. At that time, accused no.2 identifying himself as 'PSI

Sanjay' and showing his false identity as 'PSI Sanjay' obtained

naked photographs of the complainant with an intention to

involve the complainant in false case of rape. At that time,

accused no.2 also slapped the complainant and illegally

obtained Rs.70,000/- from the complainant towards settlement

of case. The respondents accused also threatened to disclose

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their naked photographs if the complainant discloses the said

fact before anyone. Accused no.3 identified himself as a 'peon

of PSI and taken the complainant at Chansad Road on his

motor cycle where threat was given for lodging complaint

against the complainant. In the same way, accused no.6

identified herself as 'lady constable', accused no.4 identified

himself as 'peon' and accused nos.3, 4, 5 and 7, all with the

help of each other, committed offence punishable under

Sections 328, 419, 384, 389, 170 read with Section 120(B) of

the Indian Penal Code. Therefore, complainant lodged

complaint on 30/03/2011 before Padra Police Station which

was registered at CR No.I-48 of 2011 for the alleged offences

punishable under Sections 328, 419, 384, 389, 170 read with

Section 120(B) of the Indian Penal Code.

3. During the investigation, police recorded statement of

witnesses, drawn necessary panchanama and as there was

sufficient evidence connecting the accused for commission of

alleged offence, charge sheet was filed before the court of

learned Judicial Magistrate First Class, Padra. As the offences

were absolutely triable by the court of learned sessions judge,

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the same was committed to the court of learned Additional

Sessions Judge, Vadodara and numbered as Sessions Case

No.129 of 2011.

4. Summons were issued to the accused persons and after

receipt of summons, the accused persons appeared before the

trial court. The charges were read over to the accused

wherein they have not pleaded guilty to the charges levelled

against them and claimed to be tried.

5. During the course of trial, the prosecution has examined

PW-1 to PW-12 witnesses and also exhibited 12 documentary

evidence to substantiate the case of the prosecution.

6. On submissions of the closing pursis, further statement

of the accused under Section 313 of the Cr.P.C. was recorded

with regard to incriminating circumstances made against the

accused in the evidence rendered by the prosecution and they

have denied the same.

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7. After completion of the trial, the trial court has acquitted

all the accused of the charges levelled against them by the

impugned judgment and order.

8. Aggrieved thereby, the State has preferred the present

appeal challenging the legality and validity of the impugned

judgment and order of acquittal.

9. We have heard Mr. Bhargav Pandya, learned Additional

Public Prosecutor for the State. Despite service of notice,

respondents did not turn up for hearing, for the reasons best

known to them. As it is an old appeal of the year 2014, we are

not inclined to adjourn the hearing of the appeal. Therefore,

we have decided to go through the record and dispose of the

appeal on merits and the material available on record.

10. Learned APP submitted that the complainant/victim

Poonambhai Motibhai Jadav is examined at Exh.23. He fully

supported the prosecution case and also produced the

complaint vide Exh.24. Learned APP submitted that the

learned Judge has not properly appreciated the evidence of

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the complainant/victim. He further submitted that the

complainant/victim has narrated the at length facts of the

alleged incident and also identified the accused before the

trial court. He referred the ocular evidence of material

witnesses and vehemently argued that the prosecution

witnesses supported the prosecution case. He further

submitted that the material witnesses identified the accused

before the trial court. He submitted that the prosecution has

established the alleged charges by producing oral as well as

documentary evidence. He submitted that the learned trial

court erred in observing the minor omissions and

contradictions in the evidence of witnesses. He, therefore,

lastly, prayed to allow this appeal.

11. We have heard learned APP and referred the material

available on record. As a first appellate Court, it is required

for the Court to re-appreciate the evidence of the prosecution

witnesses.

12. The prosecution has examined PW-5 complainant/victim

Poonmabhai Motibhai Jadav at Exh.23. During the chief-

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examination, he has stated at length facts of the alleged

incident occurred on 14/03/2011 at 6:30 p.m in the evening.

During the cross-examination, he has admitted the fact that

his residence is near the police station and also admitted the

fact that in most of time the police persons are in uniform. He

has stated that he has given the complaint after fourteen days

of the incident and he went for giving the complaint with

other persons. He has further admitted the fact that after

arrest of the accused, he has seen the accused in the police

station and the police showed the accused to him.

13. The prosecution has examined PW-1 Harishkumar

Poonambhai Jadav at Exh.19. He is the son of the

complainant/victim. During the chief-examination, he has

supported the prosecution case. During the cross-

examination, he has admitted the fact that there was no phone

call from the accused. During the cross examination,

contradictions and omissions are found in the deposition of

the said witness.

14. The prosecution has examined PW-2 Kapilaben

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Poonambhai Jadav at Exh.20. She is wife of the

complainant/victim. During the cross examination, she has

admitted the fact that she is not aware about the incident.

15. The prosecution has examined PW-3 Mukesh

Poonambhai Jadav at Exh.21. He is the son of the

complainant/victim. During the chief-examination, he has

supported the prosecution case. During the cross-

examination, he has admitted the facts about the

contradictions and omissions of his police statement.

16. The prosecution has examined PW-4 Mahendra

Amarsinh Jadav at Exh.22. He is nephew of the

complainant/victim. It appears that his evidence is hearsay

evidence and he had no any personal knowledge about the

incident.

17. The prosecution has examined panch witnesses. All the

panch witnesses turned hostile and not supported the

prosecution case.

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18. The prosecution has examined PW-12 Vrajlal Joytaram

Patel, Investigation Officer vide Exh.41. During the chief-

examination, he has stated the at length facts of the

investigation of said crime. During the cross examination, he

has admitted the fact that he has not obtained call details of

the mobile phone. He has further admitted that he has not

made done the medical examination of the complainant. In

further cross examination, he has admitted the fact that he

has not recorded the statement of the soft-drink seller. He

has further admitted the fact that during the investigation, he

has not recovered any cash amount.

19. We have minutely re-appreciated the above prosecution

evidence in light of the charges levelled against the accused.

20. It appears from the record that after fourteen days of

delay, the FIR was lodged and no explanation for the same is

adduced by the prosecution. It is well settled law that in

every case, the delay in lodging of FIR is not fatal to the

prosecution case. But in the instant case, the prosecution has

remained completely silent about the delay and no

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explanation of delay of fourteen days in lodging the FIR.

Hence, delay in lodging the FIR is cause to the root of the

prosecution case.

21. Considering the facts and circumstances of the

prosecution case, particularly the evidence of PW-5, the

complainant/victim, major discrepancies are found in his

deposition. The other material witnesses are family members

and relatives of the complainant/victim and major

contradictions, omissions, discrepancies are found in the

ocular evidence of the prosecution witnesses.

22. With regard to the question of the identification of the

accused, it appears from the record that the

complainant/victim and other material witnesses are

previously not known to the accused and only on instance of

the police, identified the accused. It is also required to be

noted that during the investigation, the Investigation Officer

has failed to arrange the TI parade of the accused. During the

investigation, amount of Rs.70,000/- also not recovered from

any accused. Said circumstances create serious doubt in the

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prosecution story and the prosecution has failed to establish

the guilt of the accused of the alleged charges without

reasonable doubt.

23. At the outset, it is required to be noted that the

principles which would govern and regulate the hearing of

appeal by this Court against an order of acquittal passed by

the trial Court, have been very succinctly explained by the

Apex Court in a catena of decisions. In the case of M.S.

Narayana Menon @ Mani Vs. State of Kerala & Anr.,

(2006) 6 S.C.C. 39, the Apex Court has narrated the powers

of High Court in appeal against the order of acquittal. In

Paragraph-54 of the said decision, the Apex Court has

observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

23.1. Further, in the case of Chandrappa Vs. State of

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Karnataka, (2007) 4 S.C.C. 415, the Apex Court has laid

down the following principle;

"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, re- appreciate 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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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

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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."

23.2. Thus, it is a settled principle that while exercising

appellate power, even 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.

23.3. In the case of State of Goa V. Sanjay Thakran & Anr.,

(2007) 3 S.C.C. 75, the Apex Court reiterated the powers of

the High Court in such cases. In Paragraph-16 of the said

decision, the Court observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court

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below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

23.4. Similar principle has been laid down by the Apex Court

in the cases of State of Uttar Pradesh Vs. Ram Veer Singh

& Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad

(Dead) by LRs Vs. State of MP reported in 2007 A.I.R.

S.C.W. 5589. Thus, the powers, which this Court may

exercise against an order of acquittal, are well settled.

23.5. It is also a settled legal position that in acquittal appeal,

the appellate Court is not required to re-write the judgment or

to give fresh reasonings, when the reasons assigned by the

Court below are found to be just and proper. Such principle is

laid down by the Apex Court in the case of State of

Karnataka Vs. Hemareddy reported in AIR 1981 S.C.

1417, wherein, it is held as under:

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"... 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."

23.6. Thus, in case the appellate Court agrees with the

reasons and the opinion given by the lower Court, then the

discussion of evidence is not necessary.

24. Considering the aforesaid reasoning and bearing in mind

the statutory provisions as well as the judgments of the

Hon'ble Apex Court, this Court is of the considered opinion

that the present appeal does not warrant any interference in

the impugned judgment and order passed by the learned

appellate court. The learned Sessions Judge, after

considering the evidence on record and on proper

appreciation of the same and also after considering the facts

and circumstances of the case, arrived at a right conclusion

and recorded a finding of acquittal against the respondents-

accused. Upon considering the evidence on record and upon

re-appraisal of the same and after considering the facts and

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circumstances of the case carefully, we absolutely find no

valid legal ground warranting interference of this Court with

the said judgment of acquittal rendered by the learned

Sessions Judge. The findings recorded by the trial court are

based on proper appreciation of the evidence on record and in

recording the said findings, no illegality and infirmity has

been committed by it. We are therefore, in complete