Gujarat High Court
State Of Gujarat vs Shailesh Jamnadas Tatmiya on 23 June, 2025
NEUTRAL CITATION
R/CR.A/106/2012 JUDGMENT DATED: 23/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 106 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
SHAILESH JAMNADAS TATMIYA
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Appearance:
MR.PRNAV DHAGAT, APP for the Appellant(s) No. 1
MR RUTURAJ NANAVATI(5624) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/06/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant-State under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned 6 th (Ad-hoc)
Additional Sessions Judge, Junagadh (hereinafter referred to as
“the learned trial Court”) in Sessions Case No. 63 of 2004 on
30.09.2011, whereby, the learned trial Court has acquitted the
respondent for the offence punishable under Sections 363, 366 and
506(2) of the Indian Penal Code, 1860 (hereafter referred to as
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“IPC” for short.) and Section 135 of the Gujarat Police Act.
1.1 The respondent is hereinafter referred to as “the accused” as he
stood in the original case for the sake of convenience, clarity and
brevity.
2. The brief facts that emerge from the record of the case are as
under:
2.1 On 10.09.2000, the complainant was going towards her residence
on her Scooty motorcycle after appearing for a test in Alpha
Classes at around 12:15 Hrs and while she was on the Mangnath
Road, in Junagadh, opposite the Ranavav Chowk, the accused
halted her and placed a knife on her neck and forcibly sat behind
her on the scooty and took her to Yogi studio near Bhutnath. The
accused forcibly made her take some photographs with the
intention of getting married to her, abducted her and threatened to
kill her father and younger brother and a complaint was filed by
the complainant at Junagadh City ‘B’ Division Police Station
under Sections 363, 366 and 506(2) of the Indian Penal Code,
(hereianfter referred to as the I.P.C) and Section 135 of the
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Bombay Police Act, which was registered at Junagadh City ‘B’
Division Police Station I-C.R. No.288 of 2000.
2.2 The Investigating Officer drew the necessary panchnamas, seized
the necessary documents and filed a charge-sheet before the Court
of Chief Judicial Magistrate, Junagadh and as the said offences
against the accused was exclusively triable by the Court of
Sessions, the case was committed to the Sessions Court, Junagadh
as per the provisions of Section 209 of the Code of Criminal
Procedure and the case was registered as Session Case No.63 of
2004.
2.3 The accused was duly served with the summons and the accused
appeared before the learned Trial Court, and it was verified
whether the copies of all the police papers were provided to the
accused as per the provisions of Section 207 of the Code. A charge
at Exh. 2 was framed against the accused and the statement of the
accused was recorded at Exh. 3, wherein, the accused denied all
the contents of the charge and the entire evidence of the
prosecution was taken on record.
2.4 The prosecution produced ten oral evidences and eleven
documentary evidences to bring home the charge against the
accused and after the learned Additional Public Prosecutor filed
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the closing pursis at Exh.37, the further statement of the accused
under Section 313 of the Code of Criminal Procedure, 1973 was
recorded, wherein, the accused denied all the evidence of the
prosecution on record. The accused refused to step into the witness
box or examine witnesses on his behalf and stated that a false case
has been filed against him. After the arguments of the learned
Additional Public Prosecutor and the learned advocate for the
accused were heard, the learned trial Court by the impugned
judgment and order was pleased to acquit the accused from all the
charges leveled against him.
3. Being aggrieved and dissatisfied with the said judgement and order
of acquittal, the appellant – State has filed the present appeal
mainly stating that the impugned judgement and order of acquittal
passed by the learned Trial Court is contrary to law and evidence
on record and the learned Trial Court has not properly appreciated
the oral evidence of ten witnesses and eleven documentary
evidences produced by the prosecution in support of their cases.
The learned trial Court has discarded and disbelieved their
evidence and has come to the conclusion that the prosecution has
not proved the case beyond reasonable doubts and the impugned
judgment and order of acquittal passed by the learned trial Court is
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illegal, invalid and improper and the same is required to be quashed
and set aside.
4. Heard learned APP Mr. Pranav Dhagat for the appellant State and
learned advocate Mr. Ruturaj Nanavati for the respondent. Perused
the impugned judgement and order of acquittal and have
reappreciated the entire evidence of the prosecution on record of
the case.
5. Learned APP Mr. Pranav Dhagat has taken this Court through the
entire evidence of the prosecution on record of the case and
submitted that the judgment and order of acquittal is contrary to
law and evidence on record and the learned trial Court has not
appreciated the direct and indirect evidence in the case. The
complainant has supported the case of the prosecution, which is
corroborated by the deposition of the medical officer and the
witnesses have identified the accused before the learned trial Court.
The prosecution has fully proved the case beyond reasonable
doubts but the learned trial Court has relied on minor
contradictions and has given undue weightage with regard to the
place of incident. The order passed by the learned trial Court is
illegal, improper and perverse and is required to be quashed and set
aside and the appeal of the appellant must be allowed.
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6. Learned advocate Mr. Ruturaj Nanavati for the respondent has
submitted that learned trial Court has appreciate the evidence in
proper perspective and has passed the impugned order of acquittal
and no interference is required and hence the appeal must be
rejected.
7. At the outset, before discussing the facts of the present case, it
would be appropriate to refer to the observations of the Apex Court
in the case of Mallappa & Ors. Vs. State of Karnataka passed in
Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the
Apex Court has observed in Para Nos. 24 to 26, as under:
“24. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this challenge.
It is the cardinal principle of criminal jurisprudence that there is a presumption
of innocence in favour of the accused, unless proven guilty. The presumption
continues at all stages of the trial and finally culminates into a fact when the
case ends in acquittal. The presumption of innocence gets concertized when
the case ends in acquittal. It is so because once the Trial Court, on
appreciation of the evidence on record, finds that the accused was not guilty,
the presumption gets strengthened and a higher threshold is expected to rebut
the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of appellate
powers, there is no inhibition on the High Court to re-appreciate or re-visit the
evidence on record. However, the power of the High Court to re appreciate the
evidence is a qualified power, especially when the order under challenge is of
acquittal. The first and foremost question to be asked is whether the Trial
Court thoroughly appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second point for
consideration is whether the finding of the Trial Court is illegal or affected by
an error of law or fact. If not, the third consideration is whether the view taken
by the Trial Court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What is required is an
illegality or perversity.
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1. It may be noted that the possibility of two views in a criminal case is
not an extraordinary phenomenon. The ‘two views theory’ has been judicially
recognized by the Courts and it comes into play when the appreciation of
evidence results into two equally plausible views. However, the controversy is
to be resolved in favour of the accused. For, the very existence of an equally
plausible view in favour of innocence of the accused is in itself a reasonable
doubt in the case of the prosecution.
Moreover, it reinforces the presumption of innocence. And therefore, when
two views are possible, following the one in favour of innocence of the
accused is the safest course of action. Furthermore, it is also settled that if the
view of the Trial Court, in a case of acquittal, is a plausible view, it is not open
for the High Court to convict the accused by re appreciating the evidence. If
such a course is permissible, it would make it practically impossible to settle
the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka,“13. Considering the reasons given by the trial Court and on appraisal of the
evidence, in our considered view, the view taken by the trial Court was a
possible one. Thus, the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N.
[(2002) 9 SCC 639] has laid down that as the appreciation of evidence made
by the trial Court while recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High Court while reversing
the acquittal has been dealt with by this Court, thus:
“9. …We are constrained to observe that the High Court was dealing
with an appeal against acquittal. It was required to deal with various
grounds on which acquittal had been based and to dispel those
grounds. It has not done so. Salutary principles while dealing with
appeal against acquittal have been overlooked by the High Court. If
the appreciation of evidence by the trial Court did not suffer from any
flaw, as indeed none has been pointed out in the impugned judgment,
the order of acquittal could not have been set aside. The view taken by
the learned trial Court was a reasonable view and even if by any
stretch of imagination, it could be said that another view was possible,
that was not a ground sound enough to set aside an order of
acquittal.”” (emphasis supplied) In Sanjeev v. State of H.P., the
Hon’ble Supreme Court analyzed the relevant decisions and
summarized the approach of the appellate Court while deciding an
appeal from the order of acquittal. It observed thus:-
“7. It is well settled that: –
7.1. While dealing with an appeal against acquittal, the reasons which had
weighed with the trial Court in acquitting the accused must be dealt with, in
case the appellate Court is of the view that the acquittal rendered by the trial
Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5,Page 7 of 16
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7.2. With an order of acquittal by the trial Court, the normal presumption of
innocence in a criminal matter gets reinforced (see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on record, the appellate Court
must be extremely slow in interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala).”
7.1 In Para – 36, the Apex Court, in the case of Mallappa (Supra), has observed as
under:-
“36. 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, 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. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is presumption of innocence in favour of
the accused and it has finally culminated when a case ends in an
acquittal. That the learned Trial Court has appreciated all the
evidence and when the learned Trial Court has come to a
conclusion that the prosecution has not proved the case beyond
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reasonable doubts, the presumption of innocence in favour of the
accused gets strengthened. That there is no inhibition to re
appreciate the evidence by the Appellate Court but if after re appre-
ciation, the view taken by the learned Trial Court was a possible
view, there is no reason for the Appellate Court to interfere in the
same.
9. In light on the above settled principles on law considering the
evidence on the prosecution on record of the case, to bring home
the charge against the accused, the prosecution has examined
Prosecution Witness No.1 Jagdishbhai Girdharilal Khimlani at
Exh.9 and Prosecution Witness No.2 Rajubhai Ramshiya Prajapati
at Exh.11. Both the witnesses are the panch witnesses of the arrest
panchnama, by which, the accused was arrested and the knife was
recovered from the accused. Both the witnesses have stated that on
20.10.2000 while they were passing by the Swaminarayan temple,
the police halted them and asked them to affix their signatures on a
ready panchnama and no one was arrested and no weapon was
seized in their presence. The witnesses have merely identified their
signatures on the panchnama, which is produced at Exh.10. Both
the witnesses have been declared hostile and have not supported
the case of the prosecution.
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9.1 The prosecution has examined Prosecution Witness No. 3
Kishorbbhai Goganbhai Narghera at Exh.12 and the witness is the
panch-witness of the panchnama of the place of offence, which is
produced at Exh.13. The witness has supported the case of the
prosecution.
9.2 The prosecution has examined Prosecution Witness No.4
Sapanaben Prahladbhai Agravat – the complainant who has stated
that in the year 2000, while she was studying in Cass – X, the
incident had occurred on Sunday and the accused had shown her a
knife and sat behind her scooty and took her to Yogi Studio and
there only her photograph were taken and the money for the
photographs were given by the accused. When they came out from
the studio, the accused told her that he had killed a person from the
minority community and was in Sabarmati jail and threatened that
she should not tell the fact that her photograph was taken to
anyone. She took her scooty and went towards her home and she
met her mother at the Joshipara railway crossing. As it was late,
her parents got angry on her but she did not tell the reason why she
was late. Her father forced her and she told them that the accused
had shown her a knife and taken her photograph at Yogi Studio. As
it was Sunday, her parents did not do anything and thereafter they
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went to ‘A’ Division Police Station and filed the complaint, which
is produced at Exh.18.
During the cross examination by the learned advocate for the
accused, the witness has stated that, the place, where the incident
has occurred is a public place and there are a number of shops and
if she had to go from Alpha Classes to her home, she did not have
to go to Ranavav Chok but had to go towards Azad Chok. There is
a rickshaw stand at Ranavav Chok and the area is a congested area
and Punit Shopping Centre is situated in the Chowk and many
tuition classes are situated in this place. While she was going from
Ranavav Chok towards Yogi Studio, she was riding the scooty but
she did not shout and did not ask for help from any person. When
she went to the studio, she did not tell the person who was in the
studio that the accused was forcibly trying to take her photograph
and on the date of the incident, her cousin had come to her house
and she had gone to Kodinar with him. While she was at Kodinar,
her mother had consumed some poison and tried to commit suicide
and after she left Yogi Studio on the day of the incident, she has
never met the accused.
9.3 The prosecution has examined Prosecution Witness No. 5
Prahladbhai Roopdas Agravat at Exh:23 and the witness is the
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father of the victim who has not supported the case of the
prosecution. The witness has been declared hostile and he has
denied that his daughter had told him that the accused had sat on
her scooty and had taken her to the studio to get her photograph
clicked and had thereafter threatened her.
9.4 The prosecution has examined Prosecution Witness No. 6
Meenaben Prahladbhai Agravat and the witness is the mother of
the victim but she has not supported the case of the prosecution.
The witness has been declared hostile and during the lengthy cross-
examination by the learned APP, she has not stated that any
incident with her daughter had ever occurred.
9.5 The prosecution has examined Prosecution Witness No. 7
Hirenbhai Prafulchandra Agravat at Exh.25 and the witness is the
cousin brother of the complainant, who has stated that on the day
of the incident, he had come to Junagadh at his aunty’s place with
his wife and his aunty was in depression as some persons were
harassing her daughter. He brought the complainant to his house at
Kodinar, where she stayed for three days and thereafter his aunty
called him and he came to Junagadh and dropped the complainant
at her home. The complainant had told him that one boy was
harassing her but he does not know the name or details of the boy,
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who was harassing the complainant. The witness has not supported
the case of the prosecution and has been declared hostile.
During the lengthy cross-examination by the learned APP, nothing
to support the case of the prosecution has come on record.
9.6 The prosecution has examined Prosecution Witness No. 8
Sardarsinh Hanubhai Zala at Exh.26 and the witness was working
as a PSI and had recorded the complaint of the complainant.
9.7 The prosecution has examined Prosecution Witness No. 9
Bharatbhai Chhaganbhai Barjoda at Exh.28 and the witness was
working as a PSO in Junagadh ‘B’ Division Police Station when
the complaint was filed and he had registered the complaint at
Junagadh ‘B’ Division Police Station I-C.R.No. 288 of 2000.
9.8 The prosecution has examined Prosecution Witness No. 10
Narhardan Keshardan Leela at Exh.31 and the witness is the
Investigating Officer, who has narrated in detail the entire
procedure undertaken by him during investigation.
10. On minute appreciation of the entire evidence of the prosecution,
except for the bare allegations of the complainant, there is no iota
of evidence that the incident has ever occurred and as per the case
of the prosecution, the complainant was abducted by the accused,
showing her a knife and forcibly sitting behind her scooty and
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taking her to Yogi Studio to get her photograph clicked. As per the
case of the prosecution, the accused had their photographs clicked,
but the complainant has categorically stated that the accused had
only got her photograph clicked and after she left the studio, she
has never met the accused.
During the cross-examination, it has emerged that the place
from where the complainant was abducted i.e. Ranavav Chowk
was a very congested area and if the incident has occurred in a
congested area, where the accused had showed a knife to the
complainant and had forcibly sat on her scooty,there are no
independent witnesses to this effect examined by theprosecution.
Moreover, the complainant has stated that immediately thereafter,
she met her parents but she did not tell them about the incident and
she left for Kodinar with her cousin. The prosecution has not
examined any independent witnesses and even the person, who had
clicked the photograph in Yogi Studio has not been examined.
Prosecution Witness No.5 Prahladbhai Roopdas Agravat, the father
of the complainant, Prosecution Witness No.6, Meenaben
Prahladbhai Agravat, the mother of the complainant and
Prosecution Witness No.7, Hirenbhai Prafulchandra Agravat, the
cousin brother of the complainant have all not supported the case
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of the prosecution and have been declared hostile and in their
evidence, there is no iota of evidence that any such incident has
ever occurred.
11. In view of the settled position of law in the decisions of Mallappa
(Supra), the learned trial Court has appreciated the entire evidence
in proper perspective and there does not appear to be any infirmity
and illegality in the impugned judgment and order of acquittal. The
learned Trial Court has appreciated all the evidence and this Court
is of the considered opinion that the learned Trial Court was
completely justified in extending benefit of doubt and acquitting
the accused of the charges leveled against him. The findings
recorded by the learned Trial Court are absolutely just and proper
and no illegality or infirmity has been committed by the learned
trial Court and this Court is in complete agreement with the
findings, ultimate conclusion and the resultant order of extending
benefit of doubt and acquittal recorded by the learned Trial Court.
This Court finds no reason to interfere with the impugned judgment
and order and the present appeal is devoid of merits and resultantly,
the same is dismissed.
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12. The impugned judgement and order of acquittal passed by the
learned 6th (Ad-hoc) Additional Sessions Judge, Junagadh in
Sessions Case No. 63 of 2004 on 30.09.2011, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S.V.Pinto, J)
VVM
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