Gujarat High Court
Rajeshbhai Ashokbhai Gohel (Luhar) vs State Of Gujarat on 6 July, 2026
NEUTRAL CITATION
R/CR.RA/73/2019 JUDGMENT DATED: 06/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST
CONVICTION) NO. 73 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE--Sd/-
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Approved for Reporting No Yes
✔
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RAJESHBHAI ASHOKBHAI GOHEL (LUHAR) & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1,2
MR UMANG R VYAS(5595) for the Applicant(s) No. 1,2
MS. KRINA CALLA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 06/07/2026
ORAL JUDGMENT
1. The present application is filed at the instance of the
original accused, under section 397 read with section 401 of
the Code of Criminal Procedure, 1973, against the judgment
and order dated 17th January, 2019, passed by the learned
Addl. Sessions Judge, Rajkot at Jetpur in Criminal Appeal
no.11 of 2014 and the judgment and order dated 23rd July,
2014, passed by the learned Judicial Magistrate First Class,
Jetpur, District Rajkot, in Criminal Case no.360 of 2009. By
the said impugned judgment and order, the learned Sessions
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Judge, has, though reduced the sentence of two years rigorous
imprisonment to one year simple imprisonment however has
confirmed the conviction of the present applicant, under
section 354 read with section 114 of Indian Penal Code. At the
same time, the learned Sessions Judge has enhanced the
amount of fine, as awarded by the learned Magistrate from
Rs.1,000/- to be deposited by each applicant to Rs.10,000/-
each.Hence, the present application, at the instance of the
original accused.
2. Considering the grounds raised in the revision application,
and upon hearing the learned advocate for the applicant, the
learned Single Judge of this Court, vide an oral order dated
24th January, 2019, had admitted the revision application and
has granted interim relief in terms of Para-7C, thereby staying
the implementation, execution and operation of the aforesaid
impugned orders of conviction and sentence, pending hearing
and final disposal of this revision application.
3. The matter was notified for final hearing under special
assignment of old matters, and the registry was directed to
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call for record and proceedings of the criminal case as well as
criminal appeal from the concerned Court. With the able
assistance of learned advocates on record, the matter was
peremptorily heard.
4. Mr. Rutvij S. Oza, learned advocate has appeared with Mr.
Umang R. Vyas, learned advocate for the applicants, and has
assailed the impugned judgment and order of conviction
passed by the Courts below.
4.1 It was submitted that there are material contradictions
about the identity of the accused, indisputably, the accused
were not known to the complainant. Admittedly, the test
identification parade has not been carried- out by the
Investigating Officer. It was also pointed-out that there was
delay in lodging of the FIR, in as much as the incident took
place on 27th December, 2008, at around 8:00 a.m., whereas
the FIR was registered on the same day, but around 15:40
hours. It was further pointed-out that though test
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identification parade the original complaint was lodged by the
victim herself, however, it has transpired in the evidence that
such complaint was actually narrated by the father of the
victim. It was therefore submitted that the correct facts have
not been brought on record, which has led to great injustice to
the applicants.
4.2 The attention of this Court was invited to the place of
incident as alleged in the complaint and the Panchnama
drawn. It is apparent from the appreciation of the aforesaid
evidence that the incident has taken place hardly 1500 meters
away from Gaushala. The defense counsel has been successful
in bringing on record the fact that, on the opposite side of the
river, there are residential houses and the bus stop is also
located nearby. In such circumstances, the Courts below
ought to have appreciated the fact that except for the
evidence of two victims, and the father and mother of the
victim being examined as witnesses, no independent
witnesses have been examined by the prosecution.
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Considering the material contradictions brought on record by
the defense counsel in their cross-examination with regard to
the place of incident alleged, the manner in which incident
had taken place, the involvement of the accused were
required to be verified by seeking higher standard of proof. In
absence of any test identification parade being carried-out,
the Courts below ought to have extended benefit of doubt to
the applicants. While assailing the findings and reasons
assigned by the trial Court as recorded in para 5, learned
advocate had submitted that in fact the burden would not lie
on the accused to establish that they were not present.
4.3 Learned advocate has further assailed the order passed by
the appellate Court. The attention of this Court was invited to
the findings and reasons recorded in para 14 of the impugned
order. It was submitted that the appellate Court, though have
reduced the sentence awarded by the trial Court from two
years rigorous imprisonment to one year simple
imprisonment, has confirmed the order of conviction and has
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enhanced the amount of fine to Rs.20,000/-. The appellate
Court has failed to independently re-appreciate the entire
evidence on record. It was emphasised that it was a fit case
for extending benefit of doubt to the applicants.
4.4 Assailing the findings and reasons assigned by the learned
Session Judge, it was submitted that the impugned judgment
of conviction is mainly on presumption held the applicants
were involved in the offense alleged. It was submitted that the
Courts are expected to adhere to the strict provisions of
Evidence Law, and conviction cannot be on mere presumption
of the facts. He has therefore urged this Court to re-
appreciate the evidence on record and to independently
examine the case of the applicants.
4.5 In this regard, learned advocate has referred to the
evidence of four witnesses: the victim – original complainant,
the victim – eye witness of the incident Exh.18, the father of
the victim Exh.19, the mother of the victim Exh.33. Referring
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to the evidence of the mother of the victim (Exh.33), it was
submitted that the mother had fairly conceded in her cross-
examination that it was her husband who had narrated the
incident when the complaint was registered by the
investigating officer.
4.6 Alternatively, learned advocate had submitted that this
Court may bear in mind the fact that the incident allegedly
relates to the year 2008. The order of the trial Court
convicting the applicant was passed in the year 2014, followed
by the order of the learned Sessions Judge in the year 2019,
and finally, the revision application of the year 2019 has been
taken up for hearing in the year 2026.
4.7 He has further pointed-out that the sentence has remained
suspended, and the accused persons have settled in their
respective lives. It was submitted that the applicants are
married and have children. They are earning their livelihood
for them as well as for their family by doing labor work. It was
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further submitted that the entire family is looked after by the
applicants. The applicants still continue to reside in the same
village and during this period, no untoward incident has taken
place between the parties. He has therefore submitted that
this Court may extend the benefit envisaged under section 4
of the Probation of Offenders Act, 1958.
4.8 As regards the prayer for probation is concerned, learned
advocate has placed reliance upon the order dated 17th
September 2025 passed in Criminal Revision Application
no.643 of 2009, whereby the Co-ordinate Bench has extended
the benefit of section 4 of the Probation of Offenders Act,
1958. Inviting my attention to the nature of offense, learned
advocate has pointed-out that, in similar set of facts involving
offense under section 354 of the Indian Penal Code and the
sentence of simple imprisonment of one year and fine of
Rs.1,000/- being imposed, despite the serious facts about
informant having sustained injuries on neck and chest,
described as nail-bites, this Court has extended the benefit
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envisaged under the provisions of Probation of Offenders Act.
Noticing the fact that the behavior of the accused was
reported good, and was keeping peace in the society, the
substantive part of the sentence was directed to be
inoperative.
4.9 The reliance was also placed on the judgment of Allahabad
High Court as considered by the Co-ordinate Bench in the
case of Sonelal Pasi Vs. State of Uttar Pradesh, Criminal
Revision Application no.2820 of 2003. The attention of this
Court was invited to the recent decision of Hon’ble Supreme
Court in the case of Milind son of Ashruba Dhanve Vs. State of
Maharashtra – 2026 0 AIJEL SC 76829. The reliance was
placed on the observations made by the Hon’ble Supreme
Court, while analyzing section 4 of the Act of 1958, it was
expected from the Court to consider relevant factors including
the age, antecedents, character and economic conditions,
fixed place of abode, familiar responsibilities. Learned
advocate has therefore urged this Court to quash and set
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aside the impugned orders of conviction or to alternatively
extend the benefit of probation as provided under section 4 of
the Probation of Offenders Act, 1958.
5. Ms. Krina Calla, learned APP, appearing for the respondent
– State, has vehemently objected to the aforesaid submissions
of learned advocate for the applicants – original accused. She
has submitted that there are concurrent findings of facts
which are based on appreciation and re-appreciation of
evidence. The core contention which has been raised by
learned advocate for the applicant is mainly disputing the
involvement of the accused persons in the commission of the
alleged offence. The findings and reasons assigned by the
Courts below on the aforesaid aspect have mainly been
challenged on the ground that there is contradiction in the
evidence of the witnesses and the evidence are highly
doubtful.
5.1 In order to meet with the aforesaid contention of learned
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advocate for the applicants – original accused, learned APP
has invited my attention to the findings recorded by the
learned Magistrate. It was pointed-out that the defense has
tried to challenge the case of the prosecution by raising
questions with regard to the victim having gone to fetch water
at the Gaushala despite there being a water connection in
their house. To which the primary victim as well as the second
victim have categorically responded in the cross-examination
that though there was a water connection, they were required
to fetch drinking water from the Gaushala.
5.2 Secondly, the challenge to the case of the prosecution was
on the ground that at the time of the incident, there was a
likelihood of presence of village people as well as the persons
working in the Gaushala. The learned Magistrate has taken
into consideration the evidence of the Investigating Officer
and has noted that merely because the witnesses are related
to the complainant, and considering the legal position that in
such kind of cases, even sole evidence of the victim is
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sufficient if found trustworthy to convict the accused, has
rightly not considered the aforesaid defense raised by the
accused.
5.3 She has further pointed-out that merely because the
mother of the victim in her cross-examination has agreed to
the suggestion put by the counsel for the defense that the FIR
was registered as per the statement of her husband, may not
be a material contradiction as the fact remains that the
prosecutrix had accompanied her father and had lodged the
complaint. She has invited my attention to the fact that no
question in this regard was put to the PSO of the concerned
police station who has been examined as a witness by the
prosecution.
5.4 Having noted the aforesaid defenses raised by the
accused, the learned Magistrate, on overall appreciation of
the evidence on record, has rightly believed the evidence of
the prosecutrix and the victim who have categorically and
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consistently maintained the manner in which the incident had
taken place. Both the victims have identified the accused
before the Court. The learned Magistrate has also taken note
of the fact that the accused has not disputed the time of the
offence and the place of the offence neither have they
disputed their presence at the time of the offence. She has
therefore submitted that in absence of any material
contradictions being brought to the case of the prosecution
and the prosecution having proved the case beyond
reasonable doubt by leading cogent material on record, the
learned Magistrate as well as the learned Session Judge, has
rightly convicted the present applicants for the offence
punishable under Section 354 of the Indian Penal Code.
5.5 She has also pointed-out that the incident had taken place
in the month of December and during winter time, generally
in early morning hours at 8:00 AM, there are chances of fog
surrounding the fields and therefore the visibility being
comparatively less. In such circumstances, the defense about
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non examination of independent witnesses to create doubt on
occurrence of incident is only on assumption. It was submitted
that the residential houses which were otherwise situated are
on the other side of the river bank and even at a distant place,
though the village people or the persons working in the
Gaushala may be visiting the Gaushala, however, the same is
irrelevant as it would not brushed aside the evidence of
victims.
5.6 She has also pointed-out that the mother of the victim
(Exh.33) has though admitted that her husband had narrated
to the officer registering the FIR, however on close reading of
her evidence, she has also stated that her daughter had
categorically stated the name of the accused who had
followed them on a motorcycle. She has therefore submitted
that the entire evidence of the witness has to be appreciated
and not a bare statement to be read as a material
contradiction.
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5.7 As regards the submission made by learned advocate for
grant of probation is concerned, learned APP had objected to
the same. It was pointed-out that in fact, the learned
Magistrate had imposed a sentence of two years whereas the
learned Session Judge has partly allowed the appeal preferred
by the accused by reducing the sentence for a period of one
year. Considering the nature of the offence, this Court may
not exercise its discretion to grant probation to the accused.
6. I have carefully considered the submissions made by the
learned advocates appearing for the respective parties. I have
carefully gone through the findings and reasons assigned by
both the Courts. Admittedly, there are concurrent findings of
facts on the aspect of involvement of the accused in the
commission of the offence alleged by the prosecution.
7. In order to appreciate the arguments made by learned
advocate for the applicants, I have also re-appreciated the
entire evidence on record.
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8. In nutshell, the case of the prosecution before the trial
Court was that on 27th December, 2008, at around 8:00 hours
in the morning, the victim ‘X’ along with her paternal cousin
sister ‘Y’ residing in Thana Galol village, Taluka Jetpur, had
left their house to fetch drinking water from the village
Gaushala which was situated on the opposite side of the river.
The two accused, viz. (1) Rajeshbhai and (2) Naresh @
Dakubhai, have followed them on the motorcycle. The accused
persons have whistled and winked at the victim. They
intercepted their path and made a vulgar solicitation by
saying, “what is your wish today? Come, let us fulfill it.”When
the victim rejected their approach, the accused stopped their
motorcycle and physically grabbed her left arm. The victim
and her cousin sister immediately raised a loud alarm. As a
result, the accused persons flew away from the spot on their
motorcycle towards the interior part of the village. Since the
spot was isolated and being under extreme fear, the victims
rushed back to their home and narrated the entire incident to
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their parents. It is the case of the prosecution that prior to the
occurrence of the said incident, the accused had stalked and
harassed the victim.
9. The aforesaid incident was registered as an FIR pursuant to
the complaint lodged by the victim before the Jetpur Taluka
Police Station against the accused which was registered as I-
CR no.198 of 2008 for the offence punishable under Sections
354, 504, 114 of the Indian Penal Code on 27 December 2008
at around 15:40 hours. The investigation was handed over to
the ASI attached to the concerned police station. The accused
no.2 was arrested on 31st December 2008, whereas accused
no.1 was arrested on 2nd January, 2009 and the accused were
interrogated who had admitted about the offence being
committed. The panchnama of the place of offence was
carried-out. The statements of the related witnesses were
recorded. The muddamal motorcycle was recovered from the
accused. At the end of the investigation, the charge-sheet was
filed against both the accused on 1st April 2009 for the
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offence punishable under Sections 354, 504 read with Section
114 of the Indian Penal Code.
10. During the course of trial, the accused pleaded not guilty
before the learned Magistrate, and the prosecution was called
upon to prove their case. Before the trial Court, the
prosecution has examined total 12 witnesses and has also led
various documentary evidences, the details of which are
reproduced in tabular form as under :
Particulars Exh.No. Panchnama of place of offence 12 Xerox copy of FIR 15 Panchnama of recovery of Muddamal 22 Motorcycle Examination depute order 25 Yadi in station dairy with respect to arrest of 27 & 28 accused
Arrest panchanma of accused and police yadi 29
with respect to registration of FIR
On other hand the defence has examined their witness DW
no.1 who was in charge as Talati cum Mantri at relevant time.
The defense has challenged the prosecution case by disputing
their involvement or occurrence of alleged incident, mainly by
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disputing the genesis of prosecution theory of victims having
gone to fetch water at Gaushala. Secondly, their involvement
was not proved in absence of the TI parade being conducted,
as their identity by name was known to the victims. However,
both the Courts have placed reliance upon the evidence of
both the victims and have found it reliable and trustworthy
and have passed the impugned order of conviction.
11. I have carefully considered the evidence of the witnesses
examined by the prosecution. Both the original informant -X
and second victim Y of the offense have entered the witness
box. The victim X evidence has been recorded by the trial
Court at Exh. 14. In her examination-in-chief, she has
recognized and identified both the accused persons who are
present in the Courtroom. She has categorically deposed that
approximately 3 ½ years prior, at around 8:00 AM, she and
her cousin sister were walking towards the village Gaushala
located on the opposite side of the bank of river to fetch
drinking water. At that time, the accused who were present
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before the Courts, have arrived on a motorcycle and whistled,
winked and made verbal solicitation: “What is your wish? Let’s
fulfill it”. She had objected to the aforesaid remarks made by
the accused. The accused had stopped their motorcycle and
had grabbed her left arm. She has further narrated that the
accused had also stalked her and whistled at her in the public
park seven days prior to the said incident. With such an act of
the accused, they were terrified and had immediately shouted
for help. Resultantly, the accused left in their vehicle into the
interior part of the village. Under extreme fear and in absence
of any people around, she had rushed back to her home and
informed her parents about the incident, which later on led to
lodging of the complaint (Exh.15). As against the aforesaid
deposition, in her cross-examination she has testified that she
resides in Old Harijan Vaas area, which is situated at the
eastern-west quadrant of village Thana Galol, which has a
domestic water-tap connection and a storage tank. Her father
works as a daily laborer. She has explained that she had to
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walk half a kilometer to the Gaushala at 8:00 AM because the
Municipal tap water supplied to her house was hard, brackish
or unpotable. She has also admitted that while the household
tank could store water for one to two days, it was unsuitable
for drinking, necessitating her to fetch sweet drinking water.
She has stated that the Gram Panchayat releases water only
once a week. She has also stated in her cross-examination that
she has undergone primary school education and her parents
have not accompanied her during the assault and they had
later on informed the Sarpanch. She has also explained as to
why no previous complaint was filed for the incident alleged
to have taken place seven days prior to the present incident.
She has fairly stated that her father had not permitted her to
lodge a complaint about such an incident. She has denied all
the defense suggestions regarding fabrication, absence of
physical molestation and filing of false cases due to family
enmities. It is required to be noted that the primary victim is
aged around 17 years at the time of incident. The incident in
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question had taken place in the year 2008, whereas her
evidence was recorded before the trial Court in the year 2012,
when she was reported to be 21 years.
12. I have also considered the evidence of victim Y who has
also suffered the trauma of the act of offense committed by
the accused. Her evidence has been recorded by the trial
Court at Exh.18. In her cross-examination-in-chief, she has
confirmed her status of being cousin sister of the victim as
paternal cousin sister. She has also identified both the
accused in the dock. She has categorically deposed that 4
years prior to her deposition, at around 8:00 AM, she was
walking with the victim towards Gaushala to fetch drinking
water where both the accused have arrived on a motorcycle.
Initially, she has stated that both the accused have caught
hold of her arm. She has later on clarified that the accused
have caught hold the arm of the victim. They have whistled,
winked and made obscene gestures and have stated, “If you
have a wish, we will fulfill it.” and had further grabbed
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victim’s hand, thereby attempting to outrage their modesty.
She had raised alarm by shouting loudly for help, forcing the
accused to release their hold and flee on their motorcycle
towards village. They have returned home immediately and
have informed about the incident to the parents of the victim.
Later on, the FIR was lodged at the instance of the victim. As
against her aforesaid deposition, in her cross-examination, she
has agreed to the suggestion put forward by the defence
counsel that a bridge is located on the river and commercial
cabins, bus stop and residential houses are located on their
side of river bank whereas the Gaushala is located on the
opposite side of the riverbank. She has agreed to the fact that
their village is heavily populated and accused persons are
residing in the neighbourhood. She has admitted that neither
she nor the victim initially knew the formal names of the
accused prior to the incident recognizing them only by site as
co-villagers. She has agreed to the fact that she had not
accompanied the victim to lodge the FIR and had denied
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rendering false testimony due to family relationship bias. She
has stated that Gaushala is half kilometer away, its
employees, cattle labourers and relies on a well operated for
panchayat borewell. She has admitted that the water is
provided daily by the panchayat. Later on she clarified that
water is provided once in a week. She has stated that a facility
for water tanks / storage of water is extended to their house.
Though the counsel for the defence has been successful in
bringing on record her admission that specific term
harassment / molestation used during her examination-in-chief
was not recorded in her original statement to the police.
However, she has flatly denied all the suggestions that they
never went to fetch water or their case was a pre-planned
fabricated story.
On overall appreciation of the aforesaid witness, she has
supported the case of the prosecution. Her version about the
occurrence of the incident is found to be consistent and in
sync with the version narrated by the primary victim. Again it
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is required to be noted that at the stage of examination-in-
chief before the trial Court, she is reported to be aged 22
years and therefore must be around 18 years at the time of
incident.
13. I have also carefully considered the evidence of
Jayantibhai Bhagwanjibhai Bharad, who is the father of the
primary victim and his evidence has been recorded by the trial
Court at Exh.19. In his examination-in-chief before the trial
Court, the said witness has deposed that the primary victim is
his daughter. Four years prior, at around 8:00 am, his
daughter and his niece have gone to Gaushala to fetch sweet
water. It is further deposed that while they were returning
home, the accused persons viz. Rajesh Ashokbhai Gohel
(Luhar) and Nareshbhai @ Dakubhai Madhavjibhai Solanki,
who are resident of their village have followed them on
motorcycle, whistled, grabbed his daughter’s hand and had
made vulgar remarks. Both the girls have screamed, causing
the accused to flee from the place. He has further stated that
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the accused had been seeing playing loud music on mobile
phone and whistling behind the girls before 5 to 6 days prior
to the incident. He has stated that he personally knows the
accused, who are present before the Court. He has deposed
that his daughter had narrated about the occurrence of the
incident. The FIR was lodged at the instance of his daughter,
which is identified at Exh.15. In his cross-examination, the
said witness has admitted that he has not personally
witnessed the incident. He has stated that his wife has not
accompanied the girls to fetch the water. He has denied that
the Grampanchayat water connection was located inside the
Gaushala or that the local women did not visit to fetch water.
He denied that the complaint was filed over prior enmities or
he is giving false testimony as the victim was his daughter. He
has admitted to the suggestion that the name of the father of
the accused was disclosed by him. However, he has further
clarified that he was knowing him. He has also admitted to the
fact that he has not lodged an FIR about an earlier incident
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before the Police Station nor has complained to the Sarpanch
or to the village people. He has admitted to the fact that the
storage tank has been facilitated at his home.
Having appreciated the evidence of the aforesaid witness,
merely by putting suggestion that the women from the village
visits Gaushala to fetch water and the employees of Gaushala
works, may not be sufficient material to disbelieve the entire
case of the prosecution. On overall appreciation of the said
witness, merely because he is the father of the primary victim
and related to her cousin sister, would not make his evidence
incredible in absence of any specific material about past
animosity being brought on record by the defence.
14. I have also gone through the evidence of the witness Sarla
Jayantibhai Bharad, who is the mother of the primary victim.
She has entered the witness box and her evidence has been
recorded at Exh.33. In her examination-in-chief, she has
supported the case of the prosecution. She has narrated about
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the manner in which the incident had taken place in sync with
the evidence given by the primary victim, her cousin sister
and the father of the victim. In her cross-examination, she has
admitted that she has not personally seen the incident and
had learned about the same when the girls in terrified
condition had reached back home. She admitted that both the
girls initially did not recognize the accused with their exact
names, however, she emphasized that being fellow villagers,
they could know the accused. She has therefore admitted to
the suggestion put by the defense counsel that the husband
had narrated the incident at the stage of registration of FIR.
She has explained that since her husband provided their
formal names, being recognized as fellow villagers, he had
drafted the content of the complaint before the Police Officer
while she and her daughter were standing outside. She has
categorically denied that the case was false or motivated by
personal enmities. Having appreciated the aforesaid evidence
of the said witness, who is the mother of the primary victim,
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though the defense counsel has successfully brought on
record the fact that the formal names of the accused were
narrated by the father of the victim at the stage of lodging of
FIR. However, the same may not be a material to discard the
entire case of the prosecution. Considering the age of the
victim and the fact about the village being populated, there
are chances that the person may be familiar as a village fellow
but his name may not be known. Considering the explanation
offered by the father, the victim of the mother has rightly
explained the surrounding circumstances in this regard. Her
evidence seems to be trustworthy and more reliable.
15. I have also carefully considered the evidence of the
Investigating Officer – Becharbhai Aalabhai, whose evidence
has been recorded by the trial Court at Exh.26. In his
examination-in-chief, he has deposed that on 27th December,
2008, while he was discharging his duty as Assistant Sub-
Inspector at Jetpur Taluka Police Station, he had received the
complaint bearing I-CR no.198 of 2008. He started the
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investigation by recording statements of witnesses, drawing
panchnama of the place of the incident. He had seized the
mudammal motorcycle by recording panchnama (Exh.22). He
had also recorded the arrest of the accused persons by
endorsing necessary entry in the station diary (Exhs.27-28).
The accused persons were arrested and necessary panchnama
in this regard was drawn, which is admitted at Exh.29. At the
end of the investigation, the charge-sheet was filed against
the accused person on 6th April, 2009. As against the
aforesaid deposition, the said witness in his cross-examination
has admitted that the FIR was registered after seven hours of
the alleged incident and both the parents of victim had
accompanied her to the police station. He has also explained
the circumstances by stating that during the course of
investigation, it was confirmed that no other local women or
independent witnesses were present at the isolated river bank
spot due to dense winter mist and low visibility. He has also
stated that the Gaushala area provides soft drinking water,
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being the reason why the women of the village prefer to fetch
water from Gaushala. He has denied that the investigation
was biased or that the charge-sheet was fabricated. Having
appreciated the evidence of the aforesaid witness, the said
witness has supported the case of the complainant. He has
also confirmed the reason as to why the local villagers would
prefer to fetch water from the Gaushala. He has also
explained the circumstances about the absence of any
independent witnesses.
16. This brings me to the remaining witnesses which mainly
includes the panch witnesses – one Shamji Makwana (Exh.21)
and Iqbalbhai Mushani – (Exh.23) though having stood
panchas to the arrest panchnama (Exh.22), however, have
resiled from the contents of such panchnama by stating before
the Court that their signatures were taken by the Police
without witnessing any recoveries. Thus, they have been
declared hostile by the prosecution.
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17. Similarly, the panch witness viz. Navnitbhai Hirabhai
(Exh.31) has though admitted his signature on the formal
arrest panchnama of the accused (Exh.29), however, before
the Court he has claimed that he was unaware about the facts
of the case and no such arrest panchnama has been executed
by the Police in his presence.
18. Another witness viz. Bachubhai Arjanbhai Radadiya
(Exh.38) is a retired Talati-cum-Mantri of Thana Galol village
examined at the behest of the accused persons. In his
deposition before the trial Court, he testified that in 2009 the
Gram Panchayat used to distribute drinking water directly to
individual houses through tap connections across the village.
He has claimed that the water at the Gaushala came from a
distinct private borewell. As against the aforesaid deposition,
in his cross-examination the said witness has stated that the
public routinely visits the Gaushala borewell to fetch drinking
water and the same is used for their regular domestic
consumption. Thus, in my view, the prosecution has
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completely brushed aside the theory of the defence that a
false story of any incident having taken place at the Gaushala.
On the contrary, considering the version of the primary victim
and her cousin sister, the defence has miserably failed to
bring on record any contradictions.
19. Having appreciated the entire evidence on record, I have
further examined the findings and reasons assigned by the
trial Court while appreciating the aforesaid evidence on
record. The trial Court, while appreciating the intrinsic
credibility of the female witnesses, has noted that the
deposition of the primary victim (Exh.14) and eyewitness
cousin sister (Exh.18) were completely consistent, natural,
and free from any material contradictions. The trial Court has
appreciated the core narratives which have remained entirely
unshaken during their cross-examination. The learned
Magistrate has found force in the explanation given by the
primary victim and her eyewitness cousin sister that despite
having domestic tap connections, they had to approach the
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Gaushala to fetch soft drinking water. As noted earlier, even
the Talati-cum-Mantri who has been examined as defense
witness has fairly admitted to the fact that the village people
routinely visited the Gaushala borewell to collect drinking
water to be used for regular domestic consumption.
Considering the description of the place of the incident as
borne-out on record, the Gaushala is found to be situated on
the other side of the bank of the river. Though on the opposite
side of the river bank there exist residential houses, however,
the evidence of the Investigating Officer explaining the
surrounding circumstances – more particularly the fact that
the incident had taken place in the month of December and
the atmosphere in the early morning hours being covered by
dense mist, there is substance in the case of the prosecution
as well as of the Investigating Officer about the absence of
any independent witnesses in the early morning hours who
would have otherwise witnessed such an incident. Even
otherwise, the legal principle is settled that in such cases, if
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the Court finds that the core evidence of the sole prosecutrix
remains unshaken, the same itself is sufficient to convict the
accused.
20. The trial Court has further relied upon the landmark
decision of Hon’ble Supreme Court in the case of Vidyadharan
Vs. State of Kerala, reported in 2004 Criminal Law Journal
605 (SC) – Equivalent citation : (2004) 1 SCC page 215. The
Court has reasoned that absolute criminal intent is not the
sole test. The statutory offense is fully complete if the culprits
possess clear knowledge that their physical gestures,
including winking, whistling, vulgar remarks and grabbing of
an arm, are highly likely to outrage a woman’s modesty. Thus,
the trial Court has appreciated the case of the prosecution in
light of the legal principles before holding the accused guilty
of the charge of offense punishable under Section 354 of
Indian Penal Code.
21. It is also required to be noted that the trial Court has
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given reasons that the prosecution has failed to bring on
record the use of specific vulgar or abusive words so as to
convict the accused for the offence punishable under Section
504 of the IPC. In absence of evidence in this regard, no error
can be found with the approach of the trial Court in observing
that without evidence of specific vulgar / insulting words
intended to cause a public breach of peace, the required
ingredients of Section 504 were not fulfilled.
22. Having appreciated the findings and reasons assigned by
the trial Court, if one looks at the findings and reasons
assigned by the appellate Court, the Court has rejected the
defence claim that the charge-sheet was fatally defective for
not separating individual actions. The appellate Court has
assigned reasons by explaining that merely because the
charge clearly laid out common abetment under Section 114
of the IPC and the accused having cross-examined all
witnesses without raising such procedural objection at any
stage of trial Court, no prejudice is caused to the accused in
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this regard.
23. As regards the ground of FIR being lodged belatedly by
seven hours, the appellate Court has reason that a seven hour
delay is completely natural in the peculiar facts of the case
which clearly suggests that the parties were coming from
rural background and when a young woman is molested and
the family honours are involved, naturally the family would be
slow in approaching the procedure by taking initiative of
lodging the FIR before the Police Station. In such cases, in the
background, various factors like time consumed to deliberate,
to avail the remedy available and to consult the elder
members of the family and the community leaders play a role.
As regards the challenge made to the trial Court’s order on
the ground of father’s roll in lodging the FIR is concerned, the
appellate Court has ruled that it was entirely natural for the
male head of the family in a rural environment to assist the
young girls by writing the complaint on their behalf and
identifying the accused with their formal names, who were
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otherwise not known to the girls by their actual names. The
Court has found the approach of the father to be natural and
therefore not a manufactured case of the prosecution. The
appellate Court has also cited decisions of Hon’ble Supreme
Court in case of Mukesh & others Vs. State of NCT of Delhi,
reported in 2017 Criminal Law Journal 4365 (SC), equivalent –
citation : (2017) 6 SCC 1 and in case of Upendra Pradhan Vs.
State of Orissa, reported in 2015 Criminal Law Journal 2878
(SC), equivalent citation : (2015) 11 SCC 124 to follow the
legal principles that testimonies from close relatives carry
significant weight if they are intrinsically reliable. The Court
noted that in such kinds of offenses involving outraging the
modesty of a woman, conservative families rarely use their
daughters as pawns to settle personal scores.
24. With regard to the challenge made by the appellant –
accused on the ground of lack of independent witnesses, the
appellate Court accepted the testimony of the Investigating
Officer by observing that the isolated river bank location was
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completely empty of the independent witnesses to be present
at 8:00 hours in the morning due to dense winter mist. The
Court has found the aforesaid explanation tendered by the IO
to be logical for the lack of independent witnesses.
25. As regards the omission made by the cousin sister of
primary victim having failed to explicitly use the technical
word “harassment” in her initial version given before the
Police Station, the Court has found such omission to be minor
rather than fatal or contradictory to the case of the
prosecution, as the core value of the evidence of such witness
has remained unshaken.
26. With these observations, the first appellate Court has
dismissed the appeal of the accused confirming the conviction
and the imposition of sentence passed by the trial Court
against the accused.
27. Having appreciated in detail the entire evidence on
record and the findings and reasons assigned by the Courts
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below, in my view, no error can be found with the approach of
both the Courts in convicting the accused for the offence
punishable under Section 354 of the Indian Penal Code, I
therefore, confirm the conviction of the present applicants for
the offence punishable under Section 354 of the Indian Penal
Code.
28. This brings me to the alternative prayer made by the
learned advocate for the applicants for probation. Learned
advocate for the applicants has harped on the fact about the
number of years which has lapsed since the occurrence of the
incident, which took place way back in the year 2008 and the
present revision application being finally taken-up for hearing
in the year 2026. He has also emphasized on the fact that no
untoward incident has thereafter taken place and the parties
are settled in their respective lives. In order to verify the
aforesaid submissions made by the learned advocate for the
applicants, this Court had sought appropriate report with
regard to antecedents of the applicants, if any. As recorded
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earlier, the applicants are not found involved in any other
offences.
29. Learned advocate for the applicants has placed reliance
upon the recent order of the co-ordinate Bench extending the
benefit of probation in a similar case involving offence of
Section 354 of IPC. I have carefully gone through the
aforesaid decision as relied upon. The learned Single Judge of
this Court has considered the observations made by the
Allahabad High Court in case of Sonelal Pasi (supra), wherein
the accused persons were convicted under Sections 323, 324
and 354 of the IPC on the aspect of probation sought for
under Section 4 of the Probation of Offenders Act, the
Allahabad High Court has placed reliance upon the
observations made by the Hon’ble Supreme Court in the case
of Subhash Chand (supra) and Hargovind (supra). In addition,
the Allahabad High Court has also considered the judgment of
Hon’ble Supreme Court in the case of State of Maharashtra
Vs. Jagmohan Singh Kuldip Singh Anand, reported in (2004) 7
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SCC 659, as well as in the case of Jagpalsingh and ors.
(supra). The learned advocate has also placed reliance upon
the decision of the Bombay High Court in case of Milind s/o.
Ashruba Dhanve Vs. State of Maharashtra, reported in 2026
(0) AIJEL-SC 76829, wherein the applicant – accused was
convicted for the offence under Section 354A of the IPC along
with other offences, the Court has referred to section 4 of the
Probation of Offenders Act, as well as Section 360 of the Code
of Criminal Procedure. It is required to be noted that the
decisions of the Hon’ble Supreme Court relied upon by the
respective High Court, did not involve the offenses related to
moral turpitude.
30. At this stage, it would be appropriate to consider the
decision of Hon’ble Supreme Court in the case of Ajahar Ali
Vs. State of West Bengal, reported in 2013 (10) SCC 31. In the
case of accused convicted of offense punishable under Section
354 of the Code, the Court held that benefits of probation are
not available to persons convicted of offense under crimes
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against women and children. It would be appropriate to quote
the relevant observations made by the Hon’ble Supreme Court
in the aforesaid decision in para 12, which reads as under:-
“12. In the instant case, as the appellant has committed a
heinous crime and with the social condition prevailing in
the society, the modesty of a woman has to be strongly
guarded and as the appellant behaved like a road side
Romeo, we do not think it is a fit case where the benefit of
the Act 1958 should be given to the appellant.”
31. Again, the Hon’ble Supreme Court in the case of State of
Uttar Pradesh Vs. Shri Kishan, reported in 2005 (10) SCC 420,
observed as under, para 8 and 9.
“8. Imposition of sentence without considering its effect on
the social order in many cases may be in reality a futile
exercise. The social impact of the crime, e.g. where it
relates to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other
offences involving moral turpitude or moral delinquency
which have great impact on social order, and public
interest, cannot be lost sight of and per se require
exemplary treatment. Any liberal attitude by imposing
meager sentences or taking too sympathetic a view merely
on account of lapse of time in respect of such offences will
be result- wise counter productive in the long run and
against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the
sentencing system.
9. The Court will be failing in its duty if appropriate
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punishment is not awarded for a crime which has been
committed not only against the individual victim but also
against the society to which the criminal and victim
belong. The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be
consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime
warranting public abhorrence and it should “respond to
the society’s cry for justice against the criminal.”
32. Having noted the aforesaid observations made by the
Hon’ble Supreme Court bearing in mind the fact that the
present applicants are found convicted for the offense
punishable under Section 354 of Indian Penal Code, which is
in fact, a crime against the woman, considering the nature of
offence against victims who were hardly in their early teenage
years, barely 17 and 18 years respectively, no relief of
probation can be granted to the accused. As rightly explained
by the Investigating Officer, on very few occasions the father
of the victim would support lodging an FIR as it would always
be looked upon as a trivial incident and to report such
incidents would bring bad fame to girls and their family. In
fact, the reports suggest that the perpetrators with such
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criminal mentality specifically targets minors because
children are easily intimidated and lack the words to
understand what is happening. They are terrified to fight back
or to even share their ordeal with the parents. This is not a
case to be considered for the benefit of probation.
33. Resultantly, the revision application fails and is hereby
dismissed. The impugned judgment and order dated 23rd
July, 2014 passed by the learned Magistrate First Class,
Jetpur in Criminal Case no.360 of 2009 as modified by the
impugned judgment and order dated 17th January, 2019
passed by the learned Addl. Sessions Judge, Jetpur in Criminal
Appeal no.11 of 2014, is hereby upheld and confirmed.
34. The order of suspension dated 24th January, 2019 passed
by this Court at the initial stage of admission of the present
application stands vacated. The applicants are hereby
directed to surrender before the concerned jail authority.
35. At this stage, Mr. Rutvij S. Oza, learned advocate
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appearing for the applicant, prays for reasonable time to
surrender. Considering his request, the applicants are
directed to surrender before the jail authority within a period
of eight weeks from today, failing which the concerned
Court shall be at liberty to issue non-bailable warrants to
secure the presence of the accused.
36. With these observations, the revision application stands
disposed of. The R. & P. are directed to be sent back to the
concerned Courts.
Sd/-
(NISHA M. THAKORE, J.)
AMAR RATHOD…/dic.7,9,13.07/sfs/15.07
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