Gujarat High Court
State Of Gujarat vs Bhanabhai Kajabhai Tuvar on 15 May, 2025
NEUTRAL CITATION
R/CR.A/732/2008 JUDGMENT DATED: 15/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 732 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
Yes ---
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STATE OF GUJARAT
Versus
BHANABHAI KAJABHAI TUVAR & ORS.
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Appearance:
MS ASMITA PATEL, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,3
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CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 15/05/2025
ORAL JUDGMENT
1. Heard learned Additional Public Prosecutor Ms. Asmita
Patel for the Appellant-State.
The Respondent nos.2 and 3 although served with the
notice of admission issued by this Court, yet has chosen not to
appear before this Court either in person or through an
advocate and oppose this application.
2. This is an appeal filed by the Appellant-State under
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Section 378 (1) (3) of the Criminal Procedure Code, 1973
challenging the judgment and order of acquittal dated
17.07.2007, passed by the learned Additional Sessions Judge,
Fast Track Court No.3, Deesa Camp at Deeodar in Sessions
Case No.10 of 2007, by which the learned Judge was pleased
to acquit the present Respondents-original accused.
3. The brief facts of the case are as follows:
3.1 It is the case of prosecution that the complainant viz.
Ramjibhai Kumbhabhai Rajput is residing at village Benap,
Taluka Vav and doing agricultural activities. It is further the
case of prosecution that daughter of complainant namely
Parvati, aged about 14 years had been married to Kanji Parbat
Rajput of village Morvada, which was not approved by the in-
laws of the complainant and accordingly, a divorce was taken.
3.2 It is the case of prosecution that on 18.09.2006, at about
8.00 hours in the morning, the complainant had gone for
grazing buffaloes in the field and while he was returning from
the field alongwith his son Kalabhai and daughter Parvati, at
about 6.00 hours in evening, near Three Rasta, Shankar
Shivling Mandir, the accused No.1 viz.Bhana Kaja Tuwar,
resident of Benap and accused no.2 viz.Sarang Lakhman
Rajput, resident of Suigam came with Sword and Dharia
respectively in Commander Jeep and abducted the daughter of
the complainant forcefully from her lawful possession with a
clear intention to have illicit relation with her. Thereafter, the
complainant as well as his son came home and informed the
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fact to prosecution witnesses viz.Bhura Naran, Sujaji Samtaji
Rajput, Parag Shankar Rajput and Rudabhai Doctor and inquiry
was made about missing of daughter of the complainant.
During inquiry, it was came to their knowledge that Bhana Kaja
Tuwar and Sarang Lakhman has abducted the minor daughter
of the complainant and she was taken to village Morvada to
the house of Kanji Parbat. Therefore, inquiry was made there,
but she was not found there and accordingly, a complaint was
filed by the complainant before P.S.I. Suigam Police Station.
3.3 On the basis of aforesaid complaint, an F.I.R. being
C.R.No.I-25 of 2006 was registered before P.S.I. Suigam Police
Station for the offences under Sections-363, 366, 114 of I.P.C.
and investigation was carried out. During investigation, various
statement of witnesses were recorded. Clothes of the victim
were also recovered and the discovery panchnama was drawn.
3.4 During investigation, statement of victim was recorded
and as per statement of victim, the name of accused по.3
viz.Ghegabhai Kajabhai Tuwar has been disclosed and
accordingly, as there was a sufficient evidence connecting all
the respondents for crime produced in this case, the charge
sheet was filed in the court of learned Judicial Magistrate First
Class, Vav and as the offence committed by the accused
person was exclusively triable by the learned Sessions Court,
the same was committed to the Court of learned Addl.
Sessions Judge, Fast Track Court No.3, Deesa Camp at Deeodar
for trial and numbered as Sessions Case No.10 of 2007,
wherein, the respondents have not pleaded guilty to the
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charges levelled against them and claimed to be tried.
3.5 Before learned trial court, the prosecution has examined
the Complainant, Panch witnesses and Police witnesses, who
were supporting the case of prosecution. The prosecution has
also relied upon the documentary evidence in support of oral
evidence laid by prosecution before the trial court. At the end
of trial, the learned Sessions Judge by his judgment and order
of acquittal dtd.17.07.2007 was pleased to acquit the
respondents for the charges levelled against them.
4. Aggrieved thereby, the Appellant - State has preferred
the present Appeal.
5. From the perusal of the depositions and the exhibits, the
following are noted:-
[A] The alleged incident of kidnapping/ abduction took place
on 18.09.2006 at 18:00 hours in the evening. The victim, P.W.-
10 was returned unharmed on the next day i.e. 19.09.2006 at
20:00 hours in the evening. The FIR was filed only after the
victim was returned. Thus, there is gross delay, under the
circumstances, in filing the FIR.
[B] From the certificate at Exh.18 given by the P.W.-2, Dr.
Babulal Kantilal Solanki of Civil Hospital, Palanpur, the victim
viz. Parvatiben was not aged 14 to 15 years as alleged in the
FIR, but aged 17 to 18 years. The aforesaid deposition of P.W.-
2 has not been dislodged. Therefore, on the date of the
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incident, the victim had either attained the age of majority or
atleast, bordering the age of majority.
[C] No motive whatsoever has come on record, inasmuch-as,
admittedly, there was no attempt by the accused persons to
cause any bodily harm or to behave inappropriately with the
victim viz.Parvatiben. Even on the face of the FIR, the alleged
kidnapping/abduction was not to compel her marriage or to
cause any other bodily harm. The victim was made to sit in one
place, given food and returned the next day. Thus, there is a
complete lack of motive on the part of the accused to kidnap/
abduct the victim viz.Parvatiben. Further, it has come on
record in the form of suggestions that the victim had probably
staged the incident in order to escape from getting married to
a person chosen for her by her family. In the stark absence of
any motive by the accused, these suggestions are indeed
valuable.
[D] It has also come on record that the accused no.2
viz.Sarang Lakhman Rajput was driving the vehicle i.e. Jeep
Commander with a Dhariya in one hand and he has allegedly,
after putting the victim in the car, has taken a 'U' turn in the
said vehicle on a 20 feet wide road. To maneuver a vehicle like
a Jeep Commander with one hand on the steering and one
hand on a dhariya and take a 'U' turn on such a narrow road
has been deemed to be inherently dis-believable by the
learned Trial Court.
[E] Neither has it come on record that any serious attempt to
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search and locate the victim viz. Parvatiben was undertaken by
her family till she eventually returned.
6. Taking an overall view of the aforesaid circumstances, it
can be safely concluded that the conduct of the family of the
victim viz. Parvatiben including the complainant, at best, has
been unnatural and no reasonable person would have done
nothing - either try and locate the missing victim and/or file an
immediate FIR had the incident been genuine kidnapping/
abduction of Parvatiben. In these circumstances, I am of the
view that the learned trial Court had correctly come to its
conclusion and acquitted the respondent - accused.
7. In view of the above and the several other discrepancies
noted by learned Trial Court, I find that the plausible view of
the acquittal taken by the learned Trial Court need not be
interfered with by this Court in appeal, particularly, in view of
paragraph no. 42 of the judgment of the Hon'ble Supreme
Court in case of Mallappa and Other Vs. State of
Karnataka reported in (2024) 3 SCC 544. Paragraph no. 42
reads as under:-
"42. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All
the safeguards and the jurisprudential values of criminal
law, are intended to prevent any failure of justice. The
principles which come into play while deciding an appeal
from acquittal could be summarized as: (i) Appreciation of
evidence is the core element of a criminal trial and such
appreciation must be comprehensive - inclusive of all
evidence, oral or documentary; (ii) Partial or selective
appreciation of evidence may result in a miscarriage of
justice and is in itself a ground of challenge; (iii) If the Court,
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after appreciation of evidence, finds that two views are
possible, the one in favour of the accused shall ordinarily be
followed; (iv) If the view of the Trial Court is a legally
plausible view, mere possibility of a contrary view shall not
justify the reversal of acquittal; (v) If the appellate Court is
inclined to reverse the acquittal in appeal on a re-
appreciation of evidence, it must specifically address all the
reasons given by the Trial Court for acquittal and must cover
all the facts; (vi) In a case of reversal from acquittal to
conviction, the appellate Court must demonstrate an
illegality, perversity or error of law or fact in the decision of
the Trial Court.
8. In such view of the matter, the present appeal is
dismissed.
Record and proceedings to be sent back to the concerned
Court forthwith.
(D.N.RAY,J)
A. B. VAGHELA
