SURESHBHAI @ SURO SARDULBHAI HADGARADA vs STATE OF GUJARAT

R/CR.A/1101/2026 JUDGMENT DATED: 30/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1101 of 2026
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2026
In R/CRIMINAL APPEAL NO. 1101 of 2026

FOR APPROVAL AND SIGNATURE:

Sd/-
HONOURABLE MR. JUSTICE VIMAL K. VYAS
================================================================
Approved for Reporting Yes No
✔
================================================================
SURESHBHAI @ SURO SARDULBHAI HADGARADA
Versus
STATE OF GUJARAT & ANR.
================================================================
Appearance:
MR. MALAY S PATEL(8901) for the Appellant(s) No. 1
MR. BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR. JUSTICE VIMAL K. VYAS

Date : 30/06/2026

JUDGMENT
1. The present Criminal Misc. Application has been
preferred by the applicant-convict (i.e. the original accused)
under the provisions of Section 430 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, for suspension of
sentence imposed upon him vide judgment and order of
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conviction and sentence dated 30.08.2025 passed by the
th
learned 4 Additional Sessions Judge & Special Judge
(POCSO), Amreli, in Sessions Case No.14 of 2025.
2. By the aforesaid judgment and order of conviction and
sentence, the present applicant has been held guilty and
convicted for the commission of offences punishable under
Sections 363 and 366 of the Indian Penal Code, and
consequently, he has been sentenced to undergo rigorous
imprisonment for 10 years and to pay a fine of Rs.1 lakh,
and in making default of payment of fine, to undergo further
undergo simple imprisonment for 06 months. The trial court
has also ordered the applicant-convict to pay compensation
of Rs.80,000=00.
3. Learned advocate Mr.Malay Patel appearing for the
applicant-convict, while taking this Court through the
factual matrix of the case, has pointed out that the alleged
incident had occurred on 28.08.2009 and the FIR came to
be registered on 06.09.2009. He has submitted that after
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due investigation, the charge-sheet was filed on 14.03.2018,
and thereafter, the trial court framed the charge against the
applicant-convict on 11.04.2018. He has further submitted
that after the examination and submissions from the
complainant side commenced, the applicant-convict
remained absconded, and the trial court, vide order dated
31.01.2025 passed below Exh.1 in Sessions Case No.14 of
2018, started recording the evidence of the witnesses in
absence of the applicant-accused, as provided under
Section 299 of the Code of Criminal Procedure.
4. It is submitted that since the applicant-convict was
absconding, neither the cross-examination of the witnesses
was made nor the statement of the accused under Section
313 of the Code was recorded. It is further submitted that
though the provisions of Section 299 of the Code empowers
the court to record the evidence of the witnesses in absence
of the accused for the purpose of preservation of evidence
only, yet the trial court, by taking into consideration the
same, has erroneously convicted the present applicant for
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the alleged offences punishable under Sections 363 and 366
of the Indian Penal Code and sentenced him to undergo
rigorous imprisonment for ten years along with the fine of
Rs.1 lakh.
5. Learned advocate Mr.Patel has submitted that after the
judgment passed by the trial court, the applicant came to be
arrested, and he was sent in jail with conviction warrant.
Mr.Patel submits that considering the provisions of Section
299 of the Code, it is abundantly clear that these provisions
are meant for the purpose of preservation of the evidence
only, and after considering the same, if the trial court does
not find the applicant-accused guilty of the charge, then in
that case, at the most, the trial court can pass the judgment
and order of acquittal of the accused. However, in no case,
the trial court can pass judgment and order of conviction
without affording opportunity to the accused to defend
himself.
6. Per contra, learned APP Mr.Bhargav Pandya has
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submitted that the present application is not required to be
entertained since the applicant-accused had remained
absconded for several years, thereby frustrating the normal
course of the trial. The applicant-accused cannot take
advantage of his own wrongful conduct. The trial court has
rightly exercised its power under Section 299 of the Code to
preserve the prosecution evidence. He has further submitted
that if the evidence was not recorded during the
abscondence of the accused, valuable testimony might have
lost forever, resulting into failure of justice. The delay in the
trial was solely attributable to the abscondence of the
applicant-accused. Therefore, he cannot seek any equitable
relief on that ground.
7. Learned APP Mr.Pandya has submitted that the trial
court, after precisely appreciating the evidence; both, ocular
and documentary, has rightly convicted the present
applicant for the serious offences punishable under Sections
363 and 366 of the Indian Penal Code. He has further
submitted that the evidence of the witnesses clearly
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establishes the complicity of the applicant-convict in the
alleged offence. Thus, he has urged that the present
application may not be entertained and the same may be
dismissed.
8. Heard learned advocates for the respective parties and
also perused the evidence as pointed out by them. It is an
admitted fact that the present applicant has been convicted
for the alleged offence and sentenced to undergo rigorous
imprisonment for ten years along with the fine of Rs.1 lakh.
It appears that being aggrieved and dissatisfied with the
judgment and order of conviction and sentence dated
30.08.2025 passed by the learned Additional Sessions
Judge, Amreli, the present applicant-convict has also
preferred an appeal, which is admitted by a Coordinate
Bench of this Court vide order dated 08.05.2026.
9. It appears from the materials on record that for the
alleged incident which had occurred on 28.08.2009, the FIR
came to be registered on 06.09.2009. It further appears that
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the applicant-convict was arrested on 02.11.2017, and
subsequently, he was released on bail on 10.11.2017.
Thereafter, charge-sheet came to be filed on 14.03.2018 and
charge was framed on 11.04.2018. Later on, when the
examination and submissions by the prosecution had
commenced on 06.06.2018, one witness was examined.
However, subsequently, the present applicant-convict
absconded. Therefore, the trial court, vide order dated
31.01.2025 passed below Exh.1 in the Sessions Case
No.14/2018, started recording the evidence of the witnesses
in absence of the applicant-accused, under the provisions of
Section 299 of the Code of Criminal Procedure. It also
appears that this Court, vide Circular No.C.2618/2016
dated 05.07.2016 (on its administrative side), instructed the
courts to follow, effectively and in letter and spirit, the
provisions stipulated under Sections 299 and 353(6) of the
Code of Criminal Procedure, for recording of evidence in
absence of accused, where accused is absconding. In the
case on hand, since the accused was absconding, neither
the cross-examination of the witnesses was made nor the
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statement of the accused under Section 313 of the Code was
recorded, and after appreciating the evidence on record, the
trial court has convicted him for the alleged offences and
sentenced him to undergo rigorous imprisonment for ten
years along with the fine.
10. Admittedly, the accused remained absconded and
could not be traced out for a considerable period, and
during such period, since the prosecution witnesses were
likely to become unavailable due to death, migration, or
other reasons, the trial court recorded the evidence of the
prosecution witnesses under Section 299 of the Code of
Criminal Procedure, which permits preservation of evidence
in the absence of an absconding accused. However, the
purpose of Section 299 of the Code is only to preserve the
evidence of the witnesses. It does not authorize the court to
convict an accused in his absence, without affording the
opportunity to defend himself. Since the accused was
absconding, neither he nor any counsel representing him
had the opportunity to cross-examine the witnesses. It is
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noteworthy that after recording the evidence under Section
299 of the Code, if the court finds that even on the basis of
the prosecution evidence no prima facie case is made out
against the accused, it may pass an order of acquittal under
Section 353(6) of the Code. However, where the prosecution
evidence discloses a prima facie case, the evidence is
required to be preserved until the absconding accused is
apprehended. Once the accused is arrested or appears
before the court, he must be afforded a fair opportunity to
defend himself. He is entitled to recall those prosecution
witnesses who are available for the purpose of cross-
examination. It, therefore, prima facie, appears that no
judgment of conviction can be passed solely on the basis of
the evidence recorded under Section 299 of the Code,
without affording opportunity to the accused to defend
himself.
11. This Court has also considered the provisions of
Sections 299 and 353(6) of the Code of Criminal Procedure,
which read thus :
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“SECTION 299 : Record of evidence in absence of accused -
(1) If it is proved that an accused person has
absconded, and that there is no immediate prospect of
arresting him, the Court competent to try [or commit for
trial] such person for the offence complained of may, in
his absence, examine the witnesses (if any) produced on
behalf of the prosecution, and record their depositions
and any such deposition may, on the arrest of such
person, be given in evidence against him on the inquiry
into, or trial for, the offence with which he is charged, if
the deponent is dead or incapable of giving evidence or
cannot be found or his presence cannot be procured
without an amount of delay, expense or inconvenience
which, under the circumstances of the case, would be
unreasonable.
(2) If it appears that an offence punishable with death or
imprisonment for life has been committed by some
person Or persons unknown, the High Court or the
Sessions Judge may direct that any Magistrate of the
first class shall hold an inquiry and examine any
witnesses who can give evidence concerning the offence
and any depositions so taken may be given in evidence
against any person who is subsequently accused of the
offence, if the deponent is dead or incapable of giving
evidence or beyond the limits of India.”
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“SECTION 353 : Judgment
*(1) to (5)
(6) If the accused is not in custody, he shall be required
by the Court to attend to hear the judgment pronounced,
except where his personal attendance during the trial
has been dispensed with and the sentence is one of fine
only or he is acquitted:
Provided that, where there are more accused than one,
and one or more of them do not attend the Court on the
date on which the judgment is to be pronounced, the
presiding officer may, in order to avoid undue delay in
the disposal of the case, pronounce the judgment
notwithstanding their absence.”
(emphasis supplied)
12. Recently, this Court, in the case of Arunaben @
Anitaben, W/o Rajesh Harkishan Devmurari vs. State of
Gujarat , reported in 2025 AIJEL HC 251753, has held in
paragraph-14 thus :
“14. In the facts of the present case, the incident of
murder of the minor child happened on 05.08.1996 and
the FIR in this regard came to be registered on
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06.08.1996 and on the same day, the appellant
accused was arrested. On completion of the
investigation and filing of the charge-sheet, the learned
trial Court framed the charge against the accused on
13.10.1998. Thereafter, the appellant accused released
on bail by this Court. Since 1998, after getting the bail,
the accused never turned up before the trail Court and
absconded. The prosecution failed to execute the non-
bailable warrant and the case adjourned time to time. In
other words, from 1998 to 2024, the case was
adjourned time to time without much progress because
of non-availability of the accused. The proclamation
proceedings under Sections 82 and 83 being
undertaken in the month of September, 2024. The
learned trial Court in the month of December, 2024,
after completion of the proclamation proceedings,
passed an order to record the evidence in absence of
accused in terms of Section 299 of the Cr.P.C. The trial
Court recorded the statements of 17 witnesses in the
absence of accused. The right to cross-examination,
observing the absentness of the accused, was closed
down at every stage of recording the evidence. The
evidence of prosecution case was closed on 02.06.2025.
The stage for recording the further statement under
Section 313 of the Cr.P.C being bye-passed by the trial
Court and reason for bye-passing giving by the trial
Court, is to the effect that the accused was not
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traceable. This finding of bye-passing the mandatory
procedure is against the settled principle of criminal
jurisprudence and principle of fair trial, which would
caused the prejudice to the accused. The learned trial
Court ought to have adjourned the case after recording
the testimonies of the witnesses because the right to
cross- examination of the witnesses is the part of fair
trial and it is statutory right conferred upon the accused
as provided under Section 137 of the Evidence Act. The
right to cross-examination is an acid test of the
truthfulness of the statement made by the witness on
oath in examination-in-chief. The trial Court after
hearing the prosecution, without giving opportunity to
hear the accused has proceeded to conclude the trial
and after pronouncement of the judgment dated
12.06.2025 and convicted the accused for committing
the offence of murder under Section 302 and sentenced
her to undergo life imprisonment and issued arrest
warrant. It is relevant to note that, within short span the
warrant was executed. This shows that, the Dhoraji
Police, who could not executed the warrant from 1998 to
2025, the same police has executed the arrest warrant
after the conviction, then, the question arise on the
credibility of the execution agency as well as
prosecution. In such circumstances, the trial proceedings
have not been conducted by following the lawful
procedure and the trial was concluded in utter
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disregard of the principle of fair trial, which has caused
a serious prejudice to the right of the accused because
the conviction recorded on the basis of inadmissible
evidence and that too without giving an opportunity to
defend the accused. We are also satisfied that the
manner in which the trial proceedings being conducted,
is vitiated by serious illegalities and irregularities
because of misinterpretation of Section 299 of the Cr.P.C
and non-following the mandatory procedure for
conducting the trial and as such, it cannot be termed to
be a real trial and therefore considering this exceptional
circumstances, the judgment of conviction and order of
sentence dated 12.06.2025 passed by the learned
Additional Sessions Judge at Dhoraji, District: Rajkot in
Sessions Case No. 183 of 1996 is set aside and by
exercising powers under Section 386(b) of the Cr.P.C,
matter is remanded back to trial Court for retrial (de
novo) by affording proper opportunity to the appellant to
defend herself. We hope that, the trial may be
concluded as expeditiously as possible in accordance
with law, within a period of six months from the date of
this order.”
13. Record reveals that the trial court proceeded to decide
the case in absence of the accused as he was absconded,
and after recording the evidence under Section 299 of the
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Code of Criminal Procedure, the trial court straightway
convicted the applicant-accused for the alleged offences. It
further reveals that after the arrest of the applicant-
accused, without affording opportunity to cross-examine the
available witnesses and without recording his statement
under Section 313 of the Code, he was directly sent to the
judicial custody with the conviction warrant. In the
considered opinion of this Court such a course is contrary
to law and violates the principles of a fair trial, and the
conviction based upon it, is unsustainable. Therefore, the
case on hand warrants interference by this Court. The ends
of justice would be met if the present applicant-appellant is
afforded an opportunity before the trial court to defend
himself by cross-examining the available witnesses.
14. On the facts and in the circumstances of the case, the
judgment and order of conviction and sentence dated
th
30.08.2025 passed by the learned 4 Additional Sessions
Judge & Special Judge (POCSO), Amreli, in Sessions Case
No.14 of 2025, is hereby quashed and set-aside. The matter
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is remanded back to the trial court for decision afresh, in
accordance with law. The trial court shall afford the
applicant-accused an opportunity to recall and cross-
examine such prosecution witnesses as are available and
thereafter proceed with the trial and decide the case on its
own merits afresh, in accordance with law, without being
influenced by the order passed by this Court.
15. Since the accused was absconding for about six years
and was arrested thereafter, the application for suspension
of sentence filed by the present applicant-convict does not
deserve consideration at this stage and the same is disposed
of accordingly. However, as the applicant-convict is
presently in judicial custody, the trial court is directed to
expedite the proceedings and dispose of the case within a
period of six months from the date of receipt of copy of this
order.
16. Registry is directed to sent back the records and
proceedings to the concerned trial court.
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17. It is needless to clarify that this Court has not gone
into the merits of the case.
(VIMAL K. VYAS, J.)
/MOINUDDIN
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