[Cites 11, Cited by 0]

Gujarat High Court

State Of Gujarat vs Bharatbhai Somabhai Malivad on 25 March, 2026

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                                                                                  Reserved On   : 17/03/2026
                                                                                  Pronounced On : 25/03/2026

                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 730 of 2010

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                                                      STATE OF GUJARAT
                                                            Versus
                                              BHARATBHAI SOMABHAI MALIVAD & ANR.
                       ==========================================================
                       Appearance:
                       MR TIRTHRAJ PANDYA, APP for the Appellant(s) No. 1
                       HL PATEL ADVOCATES(2034) for the Opponent(s)/Respondent(s) No. 1,2
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                              CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

common judgment and order of acquittal dated 01.02.2010, rd passed by the learned 3 Additional Sessions Judge,

Panchamahal at Godhra, in Sessions Case Nos.97 of 2008

and 105 of 2009 for the offences punishable under Sections

366, 323 and 114 of the Indian Penal Code, the appellant -

State of Gujarat has preferred this appeal under Section 378

of the Code of Criminal Procedure, 1973 (for short, "the

Code").

2. The prosecution case as unfolded during the trial

before the Sessions Court is that the complaint is filed by

the complainant to the effect that on 10.02.2008, in the

evening about 7 O'clock, the complainant-Shyamabhai

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Bhurabhai Malivad, along with his wife Kesarben and his

daughter Jagruti had gone for nature call; at that time, the

respondents-accused came on motorcycle bearing registration

No.GJ-17K-9510 and stopped near his daughter and started

quarrelling as to why they have filed complaint against them;

and that after some altercation, the respondents-accused took

away the victim girl - Jagruti, from the lawful guardianship

of her parents and thereby committed the alleged offences,

for which, the complaint was lodged by the complainant

against the respondents-accused.

3. After investigation, sufficient prima facie evidence

was found against the accused person/s and therefore charge-

sheet was filed in the competent criminal Court. The charge

was framed against the accused person/s. The accused pleaded not guilty and came to be tried.

4. In order to bring home the charge, the prosecution

has examined following witnesses and also produced following

documentary evidence before the trial Court, which are

described in the impugned judgment, which are as under :

                                                      :   ORAL      EVIDENCE            :



                               Sr.No.                      Name of witness                                  Exh.








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                                  3.     Panch witness Sursingbhai Nanjibhai Malivad                       9



                                  5.     Complainant Shyamabhai Bhurabhai Malivad                         11







                                  9.     Investigating Officer Ramsinh Fulsinh Dabhi                      17



                                              :   DOCUMENTARY                 EVIDENCE       :


                               Sr.No.                 Particulars of the document                       Exh.

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which they

were charged, by holding that the prosecution has failed to

prove the case beyond reasonable doubt.

6. Learned APP for the appellant - State has

pointed out the facts of the case and having taken this Court

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through both, oral and documentary evidence, recorded before

the learned trial Court, would submit that the learned trial

Court has failed to appreciate the evidence in true sense and

perspective; and that the trial Court has committed error in

acquitting the accused. It is submitted that the learned trial

Court ought not to have given much emphasis to the

contradictions and/or omissions appearing in the evidence and

ought to have given weightage to the dots that connect the

accused with the offence in question. It is submitted that

the learned trial Court has erroneously come to the

conclusion that the prosecution has failed to prove its case. It

is also submitted that the learned Judge ought to have seen

that the evidence produced on record is reliable and

believable and it was proved beyond reasonable doubt that

the accused had committed an offence in question. It is, therefore, submitted that this Court may allow this appeal by

appreciating the evidence led before the learned trial Court.

7. As against that, learned advocate for the

respondent/s would support the impugned judgment passed by

the learned trial Court and has submitted that the learned

trial Court has not committed any error in acquitting the

accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond reasonable

doubt. Therefore, it is prayed to dismiss the present appeal

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by confirming the impugned judgment and order passed by

the learned trial Court.

8. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court :

8.1 The prosecution has mainly relied on the

complaint filed by the complainant - Shyamabhai Bhurabhai

Malivad filed on 14.02.2008, which is produced vide Exh.16,

wherein the complainant has stated the incident has taken

place on 10.02.2008. The justification for filing the late

complaint, as stated in the complaint, is that as he had chest pain, he was admitted at Godhra Government Hospital,

but the fact remains that neither any document of the

treatment given to the complainant nor any medical

certificate has been produced by the prosecution. Moreover, it

transpires that at the time when the alleged incident has

taken place, the wife of the complainant viz., Kesarben was

also present with the complainant and she has also not filed

any complaint. It also comes on record that the son of the

complainant was also present at his residence and there is

no justification as to why they have also not filed the

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complaint on the date of incident.

8.2 If the complaint which is produced vide Exh.16 is

seen, the complainant, along with his wife - Kesarben and

daughter - Jagrutiben, had gone for nature's call at around

7:30 p.m. and when the complainant was standing away from

his wife - Kesarben and daughter - Jagrutiben, at that time,

accused No.1, along with other person sitting behind him,

who has covered his face with handkerchief, have come on

Suzuki Motorcycle and had come near the daughter of the

complainant i.e. Jagrutiben and informed her as to why a

false complaint has been filed against him and keeping

grudge about it, they kidnapped her and thereafter there was

some altercation and accused No.1 had slapped the

complainant's wife - Kesarben and kidnapped his daughter -

Jagrutiben and had gone on the motorcycle. The complainant

started shouting but none came for his rescue; and that

thereafter, he reached home and after reaching home, his

health deteriorated and at that time, his wife and son -

Jagdish took the complainant to the Godhra Government

Hospital; and that therefore, it was decided that the

complaint be filed after his health recovers. In the complaint

that has been filed, it has been stated that his daughter had

filed the complaint on 04.01.2008, against accused No.1 and

other people for rape and because of the said complaint, the

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accused had kidnapped his daughter Jagrutiben. The fact

remains that neither the said complaint, alleged to have been

filed by Jagrutiben on 04.01.2008, has been placed on record

nor any medical documents to prove that the complainant

was hospitalized at Godhra Civil Hospital are placed on

record.

8.3 The complainant - Shyamabhai Bhurabhai Malivad

has been examined as P.W.5, vide Exh.11. There are

contradictions in the deposition of the complainant (Exh.11)

and his complaint (Exh.16). In the complaint, it has been

stated that after the alleged incident, the complainant had

gone to his residence and thereafter, as his health

deteriorated, he was taken to Godhra Civil Hospital by his

son - Jagdish and wife - Kesarben; whereas, in his deposition (Exh.11), the said witness has stated that after the

said incident, as he had pain in the chest, he went to the

Civil Hospital; and that as the complaint of rape was filed

against the accused, they had kidnapped his daughter, as

revenge.

It has also been admitted by the said complainant

that he had gone to the quarters of the Civil Hospital with

the police to get her daughter - Jagrutiben back. He has

also stated that his daughter - Jagrutiben had left the house

at around 1 ½ months before the incident and a complaint

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in that regard was filed, where one Minesh was named as

accused; and that between 10.02.2008 and 14.02.2008, the

family members had tried to search his daughter -

Jagrutiben; and that he had informed his son about the said

incident on the same night i.e. on 10.02.2008; and that he

had not informed his son not to file any complaint with

respect to the alleged offence. He also admits of knowing

Jaydeepsinh, who was working at Godhra Civil Hospital; and

that the accused are related to him and he knows one

Punabhai, who also happens to be his relative and father of

Mineshbhai. The fact that Jagrutien was at the quarters of

the Godhra Civil Hospital was informed to the complainant

only after he discharged from the hospital.

8.4 The prosecution has, thereafter, examined the wife of the complainant-Kesarben as P.W.6 vide Exh.12 who has

stated that after the incident, the complainant had gone to

his residence and as the complainant, complained of chest

pain, he was taken to the hospital. She also states that her

daughter Jagruti was found in the room of Jaydeep and as

Jaydeep had informed the complainant about the said fact,

they had come to know that his daughter Jagruti was in the

room of Jaydeep. There is also a contradiction in her

deposition to the effect that the complainant has stated that

accused No.1, had given two slaps on the face of his wife

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Kesarben, but Kesarben, in her deposition, states that the

said slaps were given by the person who was sitting behind

accused No.1 on the motorcycle.

8.5 The prosecution has thereafter examined the victim

- Jagrutiben Shyamabhai Malivad as P.W.7, vide Exh.13,

who again states that the person who had given slaps to her

mother - Kesarben was accused No.1. She also states that

she knows accused No.2. She states that after she was

abducted by the accused, it was decided by the accused to

take her to the house of Rakesh, but same was refused by

accused No.2, therefore, she was taken to the house of

accused No.1 and at that point of time, the aunt of accused

No.1- Revaben was also present and she had also threatened

Jagrutiben to withdraw the complaint of rape, filed by Jagruti, against accused No.1 and stated that she should not

give any deposition against accused No.1, otherwise she will

face dire consequences. The said threats were given to the

life of the said witness and she was kept there atleast for

two days. In her deposition, she also states that accused

No.1 had also advised her to give statement in his favour

before the police and the said witness has, in her deposition,

stated that when she got opportunity to escape from the

accused on the ground to attend the nature's call, she came

out of the house and went to the house of Puna Veera, who

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happens to be the father of Minesh, and informed Puna

Veera that the accused had kept her at their place and had

threatened her of her life; and requested Puna Veera to see

that the said witness reaches her father's friend's house viz.,

Jaydeep, who was residing at Godhra.

8.6 The prosecution has neither examined Puna Veera

nor Jaydeep, in whose house, the victim - Jagrutiben, went

and resided. Moreover, it is also surprising that, as per the

deposition of the witness - Jagrutiben (P.W.7), Puna Veera

happens to be the father of Minesh, it is that Minesh

against whom the victim - Jagrutiben had filed a complaint

of kidnapping and offence of rape against. Therefore, it is

very surprising that the victim - Jagrutiben straightaway

went to the house of the father of Minesh i.e. Puna Veera. Moreover, in her deposition, she has stated that accused No.2

happens to be her Uncle.

8.7 The prosecution has produced the panchanama of

scene of offence vide Exh.7 and the panch witnesses viz.,

Hirabhai Kesarabhai and Koyabhai Khemabhai Gor have been

examined vide Exhs.6 and 8, respectively. Both have turned

hostile and have not supported the case of the prosecution.

The panchanama of recovery of vehicle has been

produced vide Exh.18 and the panch witness viz., Sursingbhai

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Nanjibhai Malivad has been examined as P.W.3, vide Exh.9.

He has stated that the said panchnama has not been signed

by him nor is the vehicle recovered in his presence.

8.8 The officer, who had lodged the FIR, viz.,

Pahadsinh Pratapsinh Damor has been examined as P.W.8,

vide Exh.15.

The prosecution has examined Investigating Officer

- Ramsinh Fulsinh Dabhi as P.W.9, vide Exh.17.

8.9 The Sessions Court has taken into consideration

that the prosecution has failed to justify the delay in lodging

the complaint, though the complainant has tried to justify the

delay by stating that he was hospitalized, but the fact

remains that his hospitalization has also not been proved by the prosecution. There are contradictions with respect to the

timing of hospitalization of the complainant. Moreover, it

transpires that the wife of the complainant and son of the

complainant were present and knew about the incident, but

they did not bother to lodge a complaint on the date of

alleged offence. The normal conduct of any victim and/or any

family members of the victim should be otherwise and they

will not wait but, approach the police authority. Therefore,

the conduct of the complainant and/or his family members,

under the circumstances, are not reliable.

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Moreover, the fact that the daughter of the

complainant was found from the house of Jaydeep and the

complainant himself had gone along with the police to get

her daughter back. Moreover, the prosecution has also not

been able to prove that any complaint was lodged by the

daughter of the complainant against the accused on

04.02.2008. In view of the said fact, neither the aunt of the

accused viz., Revaben, who had given a threat to the victim -

Jagrutiben, has been examined nor Puna Veera, to whom the

complainant's daughter goes after escaping from the accused's

house, nor Jaydeep, from whose house the complainant's

daughter is found, has been examined by the prosecution.

The prosecution has miserably failed in proving its case.

9. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that

the approach of the Court below is vitiated by some manifest

illegality or that the decision is perverse or that the Court

below has ignored the material evidence on record. In above

view of the matter, I am of the considered opinion that the

Court below was completely justified in passing impugned

judgment and order.

10. Considering the impugned judgment, the trial

Court has recorded that there was no direct evidence

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connecting the accused with the incident and there are

contradictions in the depositions of the prosecution witnesses.

In absence of the direct evidence, it cannot be proved that

the accused are involved in the offence. Further, the motive

of the accused behind the incident is not established. The

trial Court has rightly considered all the evidence on record

and passed the impugned judgment. The trial Court has

rightly evaluated the facts and the evidence on record.

11. 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 reasoning, when the reasons

assigned by the Court below are found to be just and proper.

Such principle is down by the 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

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of which is under appeal, will ordinarily suffice."

12. Thus, in case the appellate court agrees with the

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

discussion of evidence at length is not necessary.

13. In the case of Ram Kumar v. State of Haryana,

reported in AIR 1995 SC 280, Supreme Court has held as

under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the

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witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same

cannot entirely and effectively be dislodged

or demolished, the High Court should not

disturb the order of acquittal."

14. As observed by the Hon'ble Supreme Court in the

case of Rajesh Singh & Others vs. State of Uttar Pradesh

reported in (2011) 11 SCC 444 and in the case of

Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the trial

Court is found to be perverse, the acquittal cannot be upset.

It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by

the trial Court is possible on the evidence, the High Court

should stay its hands and not interfere in the matter in the

belief that if it had been the trial Court, it might have

taken a different view.

15. In the case of Chandrappa v. State of Karnataka,

reported in (2007) 4 SCC 415, the Hon'ble Apex Court has

observed as under:

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"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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 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 emphasise the reluctance of an appellate court to interfere with acquittal

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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 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."

16. The Hon'ble Apex Court, in a recent decision, in

the case of Constable 907 Surendra Singh and Another V/s

State of Uttarakhand reported in (2025) 5 SCC 433, has held in paragraph 24 as under:

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"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity;

                                                 that         the       same          is         based      on        a
                                                 misreading/omission                 to     consider       material
                                                 evidence        on      record;          and     that     no     two