Gujarat High Court
State Of Gujarat vs Mansukhbhai Kalubhai Garasiya on 15 July, 2026
NEUTRAL CITATION
R/CR.A/1636/2009 JUDGMENT DATED: 15/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1636 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
à°
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STATE OF GUJARAT
Versus
MANSUKHBHAI KALUBHAI GARASIYA & ANR.
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Appearance:
MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No.
1,2
MR UM SHASTRI(830) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 15/07/2026
JUDGMENT
1. The appellant- State of Gujarat has preferred this appeal
under Section 378(1)(3) of the Code of Criminal Procedure,
1973 against the judgment and order of acquittal dated
18.05.2009 passed by the learned Sessions Judge,
Panchmanal at Godhara (hereinafter be referred to as “the
Trial Court”) in Sessions Case No.92 of 2008 whereby the
Trial Court has acquitted the respondents accused from the
charges under Sections 363, 366 and 114 of the Indian Penal
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Code (hereinafter be referred to as the “IPC“) .
2. The brief facts of the prosecution case is that the
complainant minor Smitaben Punabhai Bhuriya, age about 16
years, registered her complaint at Santrampur Police Station
being Cr. No.1-151/2007 stating that the complainant was
residing at Nani Bhugedi, Santrampur, with her family. Her
father was agriculturist, and the complainant was born on
2.11.1991. On 1.11.2007, the accused no.2 Rajubhai
Virsinghbhai Bamaniya kidnapped her and committed
forcefully sexual intercourse with her without her will and
consent, and therefore, the complainant filed a complaint
against the present accused no.2, and thereafter due to lack
of evidence he was released.
2.1 By keeping this grudge, on 3.12.2007, at about 12:00 Α.Μ,
when complainant was alone in her home, at that time, two
unknown persons came near the complainant’s house with
white color Maxi jeep, and went to the complainant’s home
and asked where was Bhuriya Saheb, and she replied that he
went to the school. Then they demanded water from the
complainant, so she went inside, during that time, they caught
and press her mouth and forcefully dragged her into the maxi
jeep, and the accused no.1 & 2 were present in the jeep and
they forced her to sniff something her and she became
unconcious. At about 8:30 P.M. when she wake up, she was
lying down in one farm, which was on Sanjeli village road,
then she went to her house, and informed about the incident
to the family members. Hence, a said complaint was lodged
before the Santrampur Police Station against the accused
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persons.
2.2 After completion of the investigation charge sheet was
filed against accused respondents. Thereafter, charge was
framed at Exh.3 against accused persons for the offences
punishable under Sections 363, 366 and 114 of IPC. The
accused persons was not pleaded guilty to the charges and
claimed to be tried.
2.3 To prove its case the prosecution examined 13 witnesses
and produced 9 documentary evidence and on behalf of
accused two documentary evidence were produced.
2.4 At the end of the trial, the Trial Court has acquitted the
accused persons from the charges levelled against them by
impugned judgment and order dated 18.05.2009 in Sessions
Case no.92 of 2008.
3. Heard Ms.Jirga Jhaveri, learned APP for the appellant and
Mr. U.M. Shastri, learned counsel for the respondents.
3.1. Learned APP for the appellant has submitted that the
impugned judgment and order of acquittal passed by the
learned Trial Court is contrary to law and the evidence
available on record. She has submitted that the learned Trial
Court erred in holding that the prosecution had failed to prove
its case beyond reasonable doubt.
3.2 Learned APP for the appellant has submitted that the
prosecution examined several witnesses in support of its case
and produced various documentary pieces of evidence on
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record however, without properly appreciating the oral as
well as documentary evidence in its correct perspective the
learned Trial Court erroneously acquitted the accused of the
offences with which they were charged. Therefore, the
impugned judgment and order deserve to be quashed and set
aside.
3.3 Learned APP for the appellant has submitted that the
learned Trial Court erred in holding that the prosecution had
failed to prove beyond reasonable doubt that the accused,
being public servants, had committed the offence of criminal
misconduct by indulging in the aforesaid activities.
3.4 Learned APP has submitted that the learned Trial Court
failed to properly appreciate the evidence of PW-1, Smitaben
Punabhai (Exh. 8), who fully supported the prosecution case
by clearly narrating the incident and the role of the accused.
She has submitted that the PW-1 (Exh. 8) categorically
deposed regarding her kidnapping by accused No. 2 and the
subsequent incident involving both accused. Her testimony is
consistent with the prosecution case. The learned Trial Court
failed to properly appreciate this material evidence, rendering
the acquittal unsustainable.
3.5 Learned APP has submitted that the prosecution case
clearly establishes that the offence was committed without the
victim’s consent and there was no reason for her to falsely
implicate the accused. The learned Trial Court wrongly
discarded the prosecution case by giving undue importance to
minor contradictions, resulting in miscarriage of justice. She
has submitted that the learned Trial Court failed to properly
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appreciate the evidence of PW-2 (Exh. 11), PW-10 (Exh. 28)
and PW-11 (Exh. 32), who supported the prosecution case.
Their evidence was wrongly discarded without valid reasons.
She has submitted that the learned Trial Court failed to
appreciate the documentary evidence, including the birth
certificate (Exh. 10), school leaving certificate (Exh. 29),
medical certificate (Exh. 26), panchnama of clothes (Exh. 21)
and scene of offence panchnama (Exh. 18), all of which
support the prosecution case.
3.6 Learned APP has submitted that the prosecution led
reliable oral and documentary evidence proving the offences
under Sections 363, 366 and 114 IPC. However, the learned
Trial Court erred in ignoring such evidence while acquitting
the accused. She has submitted that the overall evidence and
circumstances clearly established the guilt of the accused.
She has submitted that the learned Trial Court failed to
properly appreciate the trustworthy evidence of the victim
(PW-1, Exh. 8), who fully supported the prosecution case, and
wrongly held that the prosecution had failed to prove the
charges beyond reasonable doubt. She has submitted that
though several panch witnesses turned hostile, the learned
Judge failed to exercise powers under Section 165 of the
Indian Evidence Act to elicit the truth. She has submitted that
the reasons assigned by the learned Trial Court are
unsustainable and contrary to the evidence on record. The
prosecution had proved the charges by cogent evidence. She
has submitted that the learned Trial Court failed to keep in
view the settled principle that a criminal court must ensure
that the guilty do not escape, resulting in an erroneous
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acquittal.
4. On the other hand learned advocate for the respondents
accused has supported the judgment and order of acquittal
passed by the Trial Court. The learned advocate appearing for
the respondents-accused submitted that the impugned
judgment and order of acquittal passed by the learned Trial
Court is just, legal, and proper and does not call for any
interference by this Court. It was submitted that the learned
Trial Court has rightly appreciated the oral as well as
documentary evidence available on record and has recorded
findings based on proper appreciation of facts and settled
principles of law.
4.1 Learned advocate for the respondents accused has further
submitted that the prosecution has failed to establish its case
beyond reasonable doubt.
4.2 Learned advocate for the respondents accused has
submitted that the prosecution failed to prove its case beyond
reasonable doubt as mere examination of witnesses and
production of documentary evidences do not establish the
guilt of the accused unless the evidence is reliable and
inspires confidence.
4.3 Learned advocate for the respondents accused has
submitted that the prosecution has failed to point out any
perversity, illegality or misreading of evidence in the
impugned judgment of the learned Trial Court and the appeal
is devoid of merit and deserves to be dismissed.
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5. I have perused the relevant documents and material placed
on record. I have also gone through the judgment and order
passed by the Trial Court as well as the record and
proceedings.
6. Upon perusal of the impugned judgment and order, as well
as the submissions advanced by the learned advocates for
both sides, the issues that arises for consideration before this
Court are as under:-
Whether the learned Trial Court has committed any
error in appreciating the oral as well as the documentary
evidence?
Whether the learned Trial Court has committed any
error in appreciating the evidence led by the
prosecution?
Whether the impugned judgment and order of acquittal
suffers from any illegality or perversity?
7. Now, considering the aforesaid facts and the issue involved
in the present appeal, it is appropriate to first examine the
factual matrix of the case.
8. According to the prosecution, on 03.12.2007, at about
12:00 noon, while the complainant was sitting outside her
house, some unknown persons came to the spot and asked her
about the whereabouts of the “Bhuriya Saheb” referring to her
uncle, who was serving as a teacher and was popularly known
by that name. They also requested a glass of water. When the
complainant went inside the house to fetch water for them,
the unknown persons allegedly placed a cloth over her face
and mouth, gagged her, and forcibly put her into a car. At that
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time, the present respondents were allegedly seated on the
rear seat of the vehicle. Owing to the cloth placed over her
mouth, she became unconscious. When she regained
consciousness at about 8:00 p.m., she found herself in an
agricultural field belonging to a person known to her.
Thereafter, she returned to her home.
9. Under these circumstances, the FIR came to be registered
at the instance of the complainant, who was a minor at the
time of the alleged incident. In the FIR, she narrated the
incident in detail.
10. However, during the course of investigation, the
Investigating Officer failed to collect material evidence with
respect to the vehicle allegedly used in the commission of the
offence. No investigation was carried out to ascertain the
identity of the car, its owner, or its driver. Likewise, no effort
was made to identify or trace the unknown persons who had
allegedly come to the complainant’s house, enquired about
her uncle, and asked for a glass of water. No test
identification parade was conducted, and none of those
unknown persons was arraigned as an accused in the present
case.
11. So far as the present respondents are concerned, the
investigation revealed that there existed longstanding
animosity between the family of the complainant and
respondent No. 1. Respondent No. 1 is the distant uncle of the
complainant. The evidence further disclosed that there was a
land dispute between the complainant’s father and the mother
of respondent No.1. Owing to the said land dispute, the
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litigation had been pending between the two families.
12. So far as respondent No. 2 is concerned, the prosecution
case is that he used to drive a jeep in which the complainant
occasionally travelled while going to school. It appears that,
on that basis, the complainant referred to the jeep allegedly
driven by respondent No. 2. However, during the course of
investigation, the police neither seized the said jeep nor
collected any evidence regarding its ownership or use. No
material was brought on record to establish whether the jeep
was owned by respondent No. 2, whether he was in fact
driving the said vehicle at the relevant time, or who its actual
owner was. Merely because the jeep was allegedly parked
near the residence of respondent No. 1 and was known to the
complainant, respondent No. 2 came to be named and
arraigned as an accused in the present case.
13. It has also come on record that respondent No. 2 had
earlier been prosecuted for offences punishable under
Sections 363, 366 and 376 of the IPC in Sessions Case No. 85
of 2008. However, he was acquitted of all the charges levelled
against him in the said case. It has further emerged from the
evidence that a complaint being C.R. No. 29 of 2007 was also
registered against the complainant’s father and her uncle.
Pursuant thereto, both of them were arrested, and by order
dated 05.12.2007 passed in Sessions Case No. 58 of 2008, the
learned Sessions Judge, Dahod, ordered their release on bail.
During the trial of the present case, the prosecution witnesses
were confronted with these facts in their cross-examination.
However, they denied having knowledge of the said
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proceedings and gave evasive answers before the trial Court.
14. Therefore, having regard to the conduct of the prosecution
witnesses and upon a detailed appreciation of the oral and
documentary evidence on record, the learned trial Court
rightly passed the impugned judgment and order of acquittal.
15. Under the facts and circumstances of the case, the
learned Trial Court, upon proper appreciation of the evidence
led by the prosecution, has rightly passed the impugned
judgment and order. The alleged involvement of the present
respondents in the commission of such a serious offence
creates a serious doubt, and the prosecution has failed to
produce any cogent, reliable, and clinching evidence
establishing their involvement in the crime in question.
16. Unless and until the prosecution produces material
evidence and clinching proof to establish beyond reasonable
doubt that the present respondents alone were involved in the
incident, and that no other persons were responsible, the
Court cannot record a conviction. However, in the present
case, the facts are otherwise.
17. There are serious lacunae in the prosecution case,
particularly with regard to the involvement of the vehicle and
the identity of the unknown persons allegedly involved in the
incident. Till date, those unknown persons have neither been
identified nor apprehended or arraigned by the prosecution in
connection with the offence. In these circumstances, the
learned Trial Court has rightly passed the impugned judgment
and order of acquittal. The impugned judgment and order do
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not suffer from any infirmity, illegality, or perversity
warranting interference.
18. Thus the prosecution failed to establish the case against
the present respondents and thus the learned Trial Court
rightly passed the impugned judgment and order of acquittal
and I do not find any illegality or any infirmity in the
impugned judgment and order of acquittal passed by the
learned Trial Court.
19. On perusal of the record of the appeal, it transpires that
the accused persons have established innocence before the
learned Trial Court and that, after due appreciation of the oral
as well as documentary evidence and other material placed on
record, the learned Trial Court has rightly passed the
impugned judgment and order of acquittal. The findings
recorded by the learned Trial Court are just, proper and in
accordance with the settled principles of law and, therefore,
no interference is warranted by this Court.
20. It is well settled by catena of decisions that the Appellate
Court has full power to review, re-appreciate and reconsider
the evidence upon which the order of acquittal is founded.
However, Appellate Court 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 their
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innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
21. Further, 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. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether the accused are connected with the commission
of the crime with which he is charged.
22. The scope and principles are enunciated by the Hon’ble
Apex Court in case of Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415, more particularly
paragraph Nos. 42 and 43, which was subsequently re-
affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State
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of Bihar and another, reported in [2022] 3 SCC 471,
wherein, the Hon’ble Apex Court has enunciated the general
principles in case of acquittal, more particularly in paragraph
No. 26 the general principles are set out by the Hon’ble Apex
Court based upon various decisions of the Hon’ble Apex
Court. Then in case of Babu Sahebagouda Rudragoudar
Vs. State of Karnataka, reported in AIR 2024 SC 2252 =
(2024) 8 SCC 149, the Hon’ble Apex Court has dealt with
the similar issue, more particularly, in paragraph Nos. 37 to
40. Hence, I am in complete agreement with the findings
recorded by the trial Court.
23. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the
Hon’ble Supreme Court has held and observed in paras-20
and 21 as under:-
“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa and others vs.
State of Karnataka , regarding the power of the appellate Court
while dealing with an appeal against a judgment of acquittal. The
principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 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 thePage 13 of 15
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nature of “flourishes of language” to emphasize the reluctance of
an appellate court to interfere with acquittal 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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of
this Court pointed out that it would be essential for the High
Court, in an appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the reasons of the
Trial Court in order to be able to reach a contrary conclusion of
guilt of the accused. It was further observed that, in an appeal
against acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of witnesses
and it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this light, the
brusque approach of the High Court in dealing with the appeal,
resulting in the conviction of Appellant Nos. 1 and 2, reversing
the cogent and well-considered judgment of acquittal by the Trial
Court giving them the benefit of doubt, cannot be sustained.”
24. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the
present accused with the alleged crime and the evidence on
record is not so convincing to prove beyond reasonable doubt
that the accused has committed the alleged crime. Therefore,
the accused cannot be convicted on the evidence on record.
25. On perusal of the impugned judgment and order, it
clearly transpires that the trial Court has not committed any
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error of fact and law in appreciating the evidence on record
and in acquitting the accused from the charges levelled
against them. Even on re-appreciation of the evidence, it
clearly transpires that the prosecution has miserably failed to
prove the charge levelled against the accused beyond
reasonable doubt. Therefore, the impugned judgment and
order of the trial Court is sustainable and the present appeal
is liable to be dismissed.
26. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the trial Court is hereby confirmed. Bail bond
stands cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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