Gujarat High Court

State Of Gujarat vs Chandrikaben Sudhirbhai Rathod on 14 October, 2025

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                             R/CR.A/39/2014                                       JUDGMENT DATED: 14/10/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 39 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
                                              CHANDRIKABEN SUDHIRBHAI RATHOD
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                       Appearance:
                       MR TIRTHRAJ PANDYA, APP for the Appellant(s) No. 1
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

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

                                                              Date : 14/10/2025

                                             ORAL JUDGMENT

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

1. Challenge in this appeal is to the judgment dated

27/06/2013 passed in Sessions Case No.140 of 2012 on the file

of the 3rd (Ad hoc) Additional Sessions Judge, Sabarkantha

District, Modasa whereby the sole accused in the said case

was acquitted of the charge under Sections 363 and 302 of

the Indian Penal Code.

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2. Brief facts of the case, giving rise to the present appeal,

are as under:

2.1. As per the version of the complainant, on 27/08/2012,

during 10:30 hours to 18:30 hours, the accused went to the

house of the complainant and taken away the girl child

namely Renuka @ Bori aged one year under the pretext to

play with her and thereafter took her at Vatrak river bank

situated at Patedi Ragunathpura where she threw away the

child into the Vatrak river bank and committed murder of the

child.

2.2. The complainant, therefore, lodged a report with the

Bayad Police Station which was registered as I-CR No.49 of

2012. A case under Sections 363 and 302 of the Indian Penal

Code was registered against the accused and it was

investigated. After competition of the investigation, charge

sheet was filed for the offences punishable under Sections

363 and 302 of the Indian Penal Code against the accused

before the concerned magistrate court.

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3. As the offences punishable under Sections 363 and 302

of the Indian Penal Code was exclusively triable by the court

of sessions, it was committed to the concerned sessions

division and thereafter it was made over to the learned 3 rd (Ad

hoc) Additional Sessions Judge, Sabarkantha District, Modasa

for trial.

4. The trial court has framed charges for the offences

punishable under Sections 363 and 302 of the Indian Penal

Code against the accused. She denied the said charges and

claimed to be tried.

5. During the course of the trial, the prosecution got

examined PW-1 to PW-11 witnesses and got marked 22

exhibits to substantiate its case against the accused.

6. After completion of the prosecution evidences, further

statement of the accused under Section 313 of the Criminal

Procedure Code was recorded with regard to incriminating

circumstances made in the evidences rendered by the

prosecution and she denied it and not lead any evidence in

defense.

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7. At the culmination of the trial, after considering the oral

and documentary evidence adduced by the prosecution and on

appreciation of the same, the learned trial court found the

accused not guilty for the charges levelled against her and

thereby acquitted her of the said charges.

8. Aggrieved thereby, the State has preferred the instant

appeal questioning the legality and validity of the impugned

judgment of acquittal.

9. Despite service of notice, respondent did not turn up for

hearing, for the reasons best known to her. As it is an old

appeal of the year 2014, listed under the caption "for final

hearing - acquittal matters", 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. We have heard learned APP Mr. Tirthraj Pandya for the

appellant-State at length on the facts of the case as well as

the provisions of the law.

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11. Learned APP Mr. Trithraj Pandya has submitted at

length the facts of case and vehemently argued that the

prosecution witnesses have supported the prosecution case

and the prosecution is able to prove the charges leveled

against the respondent-accused. It is further submitted that

the prosecution has produced the oral and documentary

evidences to prove the allegations against the respondent-

accused. Learned trial court ought to have considered the

oral as well as documentary evidences of the prosecution but

has failed to appreciate the same and recorded the findings

which are contrary to the provisions of law.

11.1. Learned APP has vehemently argued that the

prosecution case is based on circumstantial evidence. He has

further submitted that the prosecution has examined material

witnesses PW-1 complainant and PW-4. He has further

submitted that PW-1 complainant turned hostile and

vehemently argued that the evidence of hostile witness

cannot be discarded in toto. He has further submitted that

the evidence of hostile witness could be considered to the

extent of support of the facts of the prosecution case.

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11.2. Learned APP has further submitted that the

prosecution has examined material witness PW-4 and proved

the theory of last seen together. Learned APP has

vehemently argued that PW-4 has seen the accused with the

deceased girl and asked where they were going and at that

time the accused replied him that she was going to clinic for

treatment of the deceased girl. He has further submitted that

PW-4 also gave evidence of clothes (kurta) and identification

of the deceased child and learned trial court has failed to

appreciate the theory of last seen together in the case based

on circumstantial evidence and therefore required to be

interfered in the impugned judgment.

11.3. Learned APP has further submitted that the trial

court has failed to appreciate the prosecution evidences and

impugned judgment is not just, legal and proper and required

to be interfered by this Court and lastly prayed to allow this

appeal and set aside the impugned judgment passed by the

learned trial court.

11.4. In support of his submissions, learned APP has

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relied upon the decision of the Hon'ble Apex Court in the case

of Chetan vs. State of Karnataka reported in 2025 SSC

OnLine SC 1262, more particularly para-10.5.9 of the

decision which reads as under:

"10.5.9. We have also noted that specific questions were asked from these witnesses that if they had seen the appellant and the deceased going together on the night of 10.07.2006, why this information was not given to the father of the deceased, PW-2 earlier before the dead body was discovered on 13.07.2006. It may be noted that even though the deceased may have been missing since 10/11.07.2006, till the dead body was recovered and identified, members of the public may not be concerned about the missing of the deceased, unless the family members specifically asked them of the deceased. It is only after the dead body was identified on 14.07.2006 and brought to public notice that witnesses were likely to come forward to give information of any such relevant material and earlier sighting of the deceased with the appellant. Therefore, non-informing the family members of the deceased at an earlier point of time by the prosecution witnesses who saw the appellant going in a motorcycle or seeing the appellant and deceased going together on a motorcycle on the night of 10.07.2006 cannot be a ground for disbelieving their testimony.

Under these circumstances, it cannot be said that the Trial Court and High Court have committed a serious illegality in concluding that the deceased and the appellant were last seen together or that the said finding was by ignoring material evidence or contrary to the evidence on record."

11.5. Learned APP has also relied upon the decision of

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the Hon'ble Supreme Court in the case of Subhash

Aggarwal vs. State of NCT of Delhi reported in 2025

SCC OnLine SC 808 and vehemently argued on the point of

motive. The Hon'ble Apex Court has held in para-24 as

under:

"24. Motive remains hidden in the inner recesses of the mind of the perpetrator, which cannot, oftener than ever, be ferreted out by the investigation agency. Though in a case of circumstantial evidence, the complete absence of motive would weigh in favour of the accused, it cannot be declared as a general proposition of universal application that, in the absence of motive, the entire inculpatory circumstances should be ignored and the accused acquitted."

12. Before dealing with the contentions of learned APP, it

would be appropriate to analyze the relevant ocular and

documentary evidences of the prosecution witnesses.

Evidence of the complainant (PW-1):- Hostile

13. It appears from the oral evidence of PW-1, the

complainant at Exh.8 that the lady accused is relative of the

complainant. In presence of the complainant, the accused

came in her house and taken away the deceased. The

complainant has not stated specific time of the said incident.

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It is further stated in the evidence of the complainant that her

son Bhalo came at 4:00 p.m. and inquired about the deceased

and at that time she stated him that the accused has taken

away the deceased for playing with her. Thereafter they went

to the house of the accused. At that time the accused and the

deceased girl were not found. Thereafter they inquired about

the deceased at various places but the deceased was not

found. The complainant stated that the driver of Patedi

village talked that the girl was drown in the river. It is further

stated that her son went to Patedi village. At that time the

deceased was found lying in the water in a dead condition. It

is further stated in her evidence that the accused met with the

wife of Lakha Bhema with the deceased girl.

Cross-examination:-

13.1. During the cross examination by learned APP, the

complainant has supported the prosecution case. In the cross

examination of the defense, she has stated that on the day of

the incident, her son Bhalo went to the factory in early

morning and returned in evening at 6:00 to 7:00 p.m. She has

admitted that fact that the complaint was not given to the

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police on the same day. She has further admitted the fact that

Bhalo and Fula Baba came with her to register the complaint

and her son and Fulabhai informed about the incident to the

police and thereafter the police obtained her thumb

impression.

13.2. Considering the ocular evidence of PW-1 complainant, it

appears that during the chief examination she has not

supported to the prosecution case. In her cross examination,

she has clearly stated that her son Bhalo (father of the

deceased child) went to the factory in the early morning and

returned in the evening at 6:00 to 7:00 p.m. and there are

serious contradictions about timings in the chief examination

and in the cross examination which is required to be

considered.

13.3. During the cross examination, she has clearly admitted

the fact that her son and Fulabhai informed about the incident

to the police and thereafter the police obtained her thumb

impression. In other words, the prosecution witness PW-1

complainant is not the author of the complaint and this

important fact clearly fatal to the roots of the prosecution

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case.

13.4. During the cross examination, she has admitted the fact

that other women of the village used to come in her house.

She further stated that on the day of incident, in the morning,

she has prepared the food in the house. She further admitted

the fact that she has not seen the deceased child in 'Varanda'

at noon.

13.5. Considering this important fact that she has not stated

specific time when the accused came in her house and taken

the deceased and during the cross examination she has

admitted the fact that she has not seen the deceased at noon.

13.6. Under the circumstances, ocular evidence of PW-1

complainant is not clear with regard to the fact that when the

accused taken away the deceased and her ocular evidence is

completely in cryptic manner.

Evidence of PW-2-the son of the complainant and the

father of the deceased girl.

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14. PW-2, in his evidence at Exh.10, has stated that on day

of the incident he went to factory. He received a phone call at

4:00 p.m. and got informed about the incident. It is further

stated that he came at house at 5:00 p.m. and received the

information that his daughter was found in dead condition and

thereafter he went to Bayad Police Station.

14.1. Considering the ocular evidence of PW-2, it appears that

he has not clearly stated who informed him about the

incident.

Evidence of PW-4-Rakeshbhai Parmar - who has last

seen the accused:-

15. He stated in his evidence that he has seen the accused at

12:00 noon with his niece and inquired where she was going

with his niece. He has further stated that at that time the

accused replied that she was going to dispensary/clinic. It is

further stated by him that thereafter at about 3:00 to 4:00

p.m., he inquired about the accused in village but the accused

was not found at her home. He has further stated that one

person informed on phone call that the accused has thrown

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away his niece in the river. He therefore, with one Vijay went

to the river (place of offence) on motorcycle and carried out

the dead body of the deceased child from the river. At that

time, so many people gathered there. After taking the dead

body they went to the Bayad Police Station.

Cross examination:-

15.1. In the cross examination, he has admitted the fact that

the accused never come at their house in any occasion. He has

further stated the at length facts of the distance between sim

of village Vata and village Patedi.

15.2. Considering the ocular evidence of PW-4, it appears that

he has stated the facts in chief examination and claimed that

he has seen the accused with the deceased but during the

cross examination, the defense side succeeded to prove the

fact about the distance of places more particularly the

distance between village Vata and village Patedi. It appears

from the evidence that the accused never came in his house at

any occasion. It is required to be appreciated that the

deceased is niece of the witness. In other words, he is an

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interested witness. Hence, evidence of PW-4 has not inspired

confidence and the prosecution has failed to establish the

theory of last seen together without any reasonable doubt.

16. The prosecution has examined the independent witness

PW-9. He has not supported the prosecution case and turned

hostile.

17. The prosecution has examined PW-11, the Investigating

Officer. During the cross examination, he has admitted the

fact that he has recorded the statement of PW-4 Rakeshbhai

Parmar and he has not stated the fact "on the day of incident,

I was going to home with a Can and at that time at 12:00 noon

the accused Chandrika came from opposite side at sim of

village Vata and his niece was with her and from kurta worn

by his niece, he identified his niece.".

17.1. Considering this important fact that PW-4 has not stated

the fact in his police statement about the last seen of the

accused and the deceased. In other words, during the

deposition, PW-4 has fully improved the prosecution case in

his examination in chief. Under the circumstances, PW-4 has

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not stated the facts about the last seen together in his

statement under Section 161 of the Criminal Procedure Code

and his evidence is totally contradictory and therefore totally

unworthy and not inspired any confidence.

17.2. Considering the facts of the subject matter and the

ocular and documentary evidence and re-appreciating of the

same, it is revealed from Exh.22, cause of death certificate

that the cause of death is asphyxia due to drowning of the

deceased.

17.3. It is relevant to note that the evidence of PW-4 has not

inspired confidence and PW-9 independent witness has not

supported the prosecution case and declared hostile.

18. Considering the facts and circumstances of the subject

matter, it appears that the prosecution case is based on

circumstantial evidence and it appears from the prosecution

evidence that the prosecution has failed to give answer of

important mute questions to establish the chain of

circumstances. Considering the facts of the prosecution story,

it appears that the prosecution has failed to produce the

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evidence who informed the family members of the deceased

through phone call. The Investigating Officer failed to record

the statement of important witness who informed the family

members of the deceased about the scene of crime. It

appears from the record that the prosecution witnesses have

not stated the continuity in the timings when the accused

taken away the deceased child, thrown away the deceased

child in the river, found out of the dead body of the deceased

child etc. In other words, the chain of exact timings is

completely missing and contradictory facts about the timings

in the ocular evidence of the prosecution witnesses.

19. Learned APP has relied upon the decisions of the

Hon'ble Supreme Court as aforesaid, however, considering

the facts and circumstances of the case on hand, the

prosecution has failed to prove the complete chain of the

circumstances. Hence, the said decisions are not helpful to

the contentions raised by learned APP.

20. It is fruitful to refer decision of the Hon'ble Supreme

Court dated 06/08/2025 in case of Shail Kumari vs. State of

Chhattisgarh in Criminal Appeal No.2189 of 2017, reported

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in reported in AIR 2025 SC 3646. In para-6 of the said

decision, the Hon'ble Supreme Court has reproduced para-

151, 152, 153 and 154 of the decision in the case between

Sharad Birdhichand Sarda v. State of Maharashtra

reported in (1984) 4 SCC 116 and observed as under:

"6. Indisputably, the present case rests on circumstantial evidence. The law on conviction in the case of circumstantial evidence has been very well crystallized by this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra. It will be relevant to refer to the observations made by this Court in the aforesaid case:

"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC

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343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions upto- date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as

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was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:

SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

20.1. In para-7 of the decision in the case of Shail Kumari

(supra), further the Hon'ble Supreme Court has observed as

under:

"7. The law laid down in Sharad Birdhichand Sarda (supra) has been consistently followed by this Court in a catena of judgments. In that view of the matter, the

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conviction in the present case could be sustainable only if the prosecution is in a position to prove the case beyond reasonable doubt and also establish a chain of events which is so connected to each other that it leads to no other conclusion than the guilt of the accused."

21. We have considered the evidences produced by the

prosecution during the trial and also considered the impugned

judgment passed by the learned trial court. We have also

considered the decisions relied upon by the learned APP.

22. Considering the impugned judgment and order of the

learned trial Court and the aforesaid reasoning and bearing in

mind the statutory provisions of law 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 trial court. We find that the findings recorded by

the learned trial court are absolutely just and proper and in