Gujarat High Court
State Of Gujarat vs Aslamkhan Anvarkhan Pathan on 26 June, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
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R/CR.A/1756/2010 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1756 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
ASLAMKHAN ANVARKHAN PATHAN & ANR.
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Appearance:
MR. SOAHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No.
1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
MR HARSHIL G BHAVSAR(11263) for the Opponent(s)/Respondent(s) No.
1,2
MR RUTURAJ NANAVATI(5624) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 26/06/2025
ORAL JUDGMENT
[1] This Appeal is filed by the State of Gujarat under
Section 378 of the Code of Criminal Procedure, 1973 (for short
'the Code') against the judgment and order dated 29.04.2010
passed by the learned Additional Sessions Judge, Court No.14,
Ahmedabad City in Sessions Case No.105 of 2008, whereby
respondents - accused have been acquitted of the charges
punishable under Sections 366, 506(2) and 114 of the Indian
Penal Code (for short 'IPC').
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[2] Endorsement on the cause-list shows that bailable
warrants are served upon the respondents. However, they are
not present, either in person or through an advocate. Since this
appeal is of the year 2010, it is decided to be taken up for
hearing on it being listed.
[3] As per the case of the prosecution, on 23.11.2006 at
about 9:30 p.m., accused have abducted victim - Rubinabanu @
Rabiya Aslamkhan Pathan, by administering threat of dire
consequences, on their motorcycle and took her to house of
respondent No.1- accused. They also administered threat that if
she does not accompany them, they will kill her brother as also
mother. Thus, according to the case of the prosecution, accused
have committed an offence punishable under Sections 366,
506(2) and 114 of 'IPC'.
[3.1] The offence came to be registered on a complaint filed
by Aayshaben w/o Ahmadbhai, mother of victim - Rubinabanu.
On registration of complaint and investigation of the case, a
charge-sheet came to be filed before the competent Court.
Pursuant to which, the competent Court has tried the
respondents - accused. To prove the case against them,
prosecution had examined 4 witnesses and produced and proved
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5 documents.
[3.2] On conclusion of the trial and hearing the parties,
the learned Judge has passed the aforesaid judgment and order
of acquittal in favour of the respondents - accused.
[4] The appellant - State, being aggrieved by the same,
has preferred the present appeal.
[5] Mr. Soaham Joshi, learned APP for the appellant -
State submitted that though victim - Rubinabanu married to
respondent No.1- accused, he gave oral divorce to her before 6
years to her deposition. As also, as coming out from the
deposition of (PW-2) - victim, she has already married with one
Hanif. Therefore, according to the submission of Mr. Joshi, the
accused along with his brother abducted victim from her house
and took her with him at his residence. He has further
submitted that, not only she was locked from inside at the house
of the accused, she was not permitted to even go out of the
house despite her mother came to the house along with the
police. Since she is already married with someone else and
because of the divorce given by accused No.1, accused wanted to
get married again with her, and therefore, she was kidnapped
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and thereby, an offence under Section 366 of 'IPC', as claimed by
the prosecution, is committed.
[5.1] He has further submitted that offence as alleged,
committed by the accused is supported by the first informant
who has promptly filed the FIR and came to the house of the
accused along with the police. Therefore, there is no chance of
creating any story in the prosecution's case. It is only with the
intervention of the police, she could be relieved. Though,
according to submission of learned APP, Rubinabanu is not the
eye-witness, she derived the knowledge from her brother who
was present at the scene of offence from where victim was
kidnapped by the accused. Brother of the first informant (PW-3)
- Gulam Dastgir has also supported the case of the prosecution,
and therefore, case against the accused is proved and judgment
and order of acquittal is required to be quashed and set aside by
suitably awarding punishment upon the respondents - accused.
[6] Having heard the learned APP as also going through
the impugned judgment and order and relevant evidence and
document, as claimed by the prosecution, the case is proved
against the accused, and therefore, they are to be convicted.
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[7] On re-appreciation of the deposition of the victim
herself, it appears that she married with accused No.1 by her
choice before about 18 years to the date of deposition before the
Court. Out of the said wedlock with respondent No.1- accused,
there are 6 children born to them. As claimed by the victim in
her deposition, eldest daughter is with her, whereas 5 children
are still with the accused. She claimed that alleged incident took
place at about 9:00 p.m. on 23.11.2006 when accused No.1
along with her brother-in-law came on a motorcycle and
abducted her on a plea that her son - Samir is not well and he is
remembering her. It is further asserted in the examination-in-
chief by the victim that accused No.1 threatened her to kill her
brother and mother, if she does not accompany him to his
house. She has further deposed to that thereafter he took her to
his house and locked from outside. As claimed in the
examination-in-chief, before 6 years to the date of the deposition
before the Court, respondent No.1- accused orally divorced her
and since then, he is not her husband. Despite she is divorced,
he wanted to keep her with him and therefore, he abducted
victim.
[8] However, in the cross-examination, she had to admit
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that there are ample improvements in her deposition before the
Court which were not stated before the police in a police
statement, which is admitted by her in the cross-examination.
Not only that, the area wherefrom she is claimed to have been
abducted, is thickly populated area and if a major able-bodied
person is abducted, she may raise hue and cry and nobody is
able to abduct from that area. She had to admit that she has not
stated in the police statement that her husband took her to his
house and she was not permitted to come out and it was locked.
It is further not stated in her statement, as admitted by her,
before 6 years respondent No.1- accused Aslamkhan Pathan has
given oral divorce to her and since then, he is not her husband.
It is further admitted that it is not stated in her police statement
that despite he divorced her, he wanted to keep victim with him,
and therefore, she was confined in his house. Not only that, she
had to admit that it is not stated in her police statement that
before 3 years, she has married with one Hanif.
[9] Most material and important admission on the part of
the victim which proves that there is no abduction as such but
she had gone to the house of respondents voluntarily, as
recorded in last line of cross-examination of the victim. In that
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last line, she had to admit that since her children were crying,
her husband took her to his house and because of that reason
only, she had gone there. If this admission is considered along
with examination-in-chief of the victim, it is clear that there is no
case of abduction as pleaded, either by victim or by her mother.
On the contrary, as per her own admission, since her children
were crying, she had gone along with her husband when he
came there to take her to his house. The story of divorce by her
husband and her marriage with Hanif is nothing but a most
material improvement, which was not stated in the police
statement, with a view to give serious turn to the voluntary act of
joining her husband to a case of abduction. Not only that, she
had to admit that when Aslamkhan - respondent No.1 took her
to his house, his mother, children as also sister were present in
the house. If any abduction of victim with an intent to marry or
have illicit relation with her, in their presence, accused may not
take her to very house where his own mother, at least 5 children
and his sister are already present in the house.
[10] Deposition of witness (PW-3) - Gulam Dastgir has a
different story to tell. He was just sitting outside in a mohalla
when this incident has occurred. However, before the incident,
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according to witness (PW-3) - Gulam Dastgir, respondent No.1
came to him and informed that he has not given divorce to the
victim. However, he asked him to go to his own institution to
inquire of the divorce. As claimed by the witness when he
inquired from his own sister, it came to his knowledge that
respondent No.1 is divorced. Within half and hour thereafter,
respondents came there on a bike to take his niece with them.
However, thereafter what had happened he has not stated
anything in the deposition. His entire examination-in-chief,
except the relationship with the victim and her mother, is
nothing but an improvement. Over and above that, so far as
abduction of the victim is concerned, there is nothing stated in
his deposition. Whereas, first informant - mother of the victim
claims to have derived knowledge of abduction, based on which
she filed the first information report, from (PW-3) - Gulam
Dastgir. If Gulam Dastgir has not deposed to before the Court
anything about abduction, she could not have derived any
knowledge from him of abduction. If entire evidence is looked
into, considering the clear-cut admission by victim herself in her
cross-examination that because children were crying, she had
gone along with the accused, that shows that there was
voluntary act on the part of the victim to accompany the accused
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and not the abduction as claimed. If the story of abduction is not
proved, administering any threat of dire consequences or to kill
her mother and brother, that too, for the purpose she
accompanies the accused, is not believable at all.
[11] On overall re-appreciation of evidence, it is clear that
reasons assigned by the learned Judge for recording an order of
acquittal is based on evidence. He has dealt with in detail and
passed a reasoned-order acquitting the accused.
[12] While determining the acquittal appeal and on re-
appreciation of evidence, even if two views are possible, the view
which is favourable to the accused is to be accepted, there
appears no reason to take any different view than the view taken
by the learned Judge.
[13] In view thereof, I see no reason to interfere with the
impugned judgment and order of acquittal recorded by the
learned Judge. Hence, this appeal is dismissed. Record and
proceedings be sent back to the concerned Trial Court forthwith.
(UMESH A. TRIVEDI, J.)
Lalji Desai
