STATE OF GUJARAT vs SANJAY GORDHANBHAI SURYA

R/CR.A/215/2005 JUDGMENT DATED: 29/10/2026
(GJHC240486262005)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 215 of 2005
FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA Sd/-

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
================================================================
Approved for Reporting Yes No
================================================================
STATE OF GUJARAT
Versus
SANJAY GORDHANBHAI SURYA
================================================================
Appearance:
MS JYOTI BHATT ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 29/10/2026 ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The present appeal is filed by the appellant – State of
Gujarat under Section 378(1)(3) of the Criminal Procedure
Code, 1973 (hereinafter referred to as ‘the Code’ for short)
against the judgment and order dated 22.04.2004 passed by
the learned District Judge, Vadodara (hereinafter be referred
to as “the learned trial Judge”) in Sessions Case No. 146 of
2003, whereby the learned trial Judge had acquitted the
respondent – original accused from the charges under
Sections 363, 366 and Section 376 of the Indian Penal Code
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(hereinafter be referred to as “IPC”).
2. The brief facts giving rise to the present appeal are that
the complainant, his wife, daughter(victim) and other family
members reside in Surat. It was alleged in the complaint that
daughter of complainant i.e. victim, who was residing with her
family at Surat, was born on 04.11.1987, and that the accused
was residing at the complainant’s residence as a paying guest
and working as a diamond worker.
2.1 On 14.10.2002, at about 9:00 p.m., the accused, the
victim, and witnesses Lilaben and Sunitaben boarded an
Ashwamegh Travels bus from Dhoraji to Surat. On
15.10.2002, at about 4:00 to 5:00 a.m., when the bus stopped
near Golden Chokdi, Vadodara, on National Highway No. 8,
the accused and the victim got down for refreshments, while
the witnesses remained seated. After the passengers
returned, the victim and the accused were found missing.
Despite efforts to search them, they could not be traced, and
the witnesses informed the complainant after reaching Surat.
2.2 On 19.10.2002, the complainant received information
that the victim and the accused were residing at the accused’s
residence at Nani Marad. The complainant and his wife went
there and found both of them. During inquiry, it was revealed
that the accused had forcibly engaged in sexual intercourse
with victim against her will. The complainant, Narsinhbhai
Dhanjibhai, therefore, filed a complaint before Vadodara City
Police Station being C.R. No. I-94/2003 for the offences
punishable under Sections 363, 366 and 376 of the IPC. for
the alleged abduction of the minor girl from the lawful
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guardianship of the complainant.
2.3 The Investigating Officer recorded statements of the
victim and witnesses, prepared the necessary panchnamas,
recovered the clothes of the respondent-accused, and drew a
discovery panchnama. Upon completion of the investigation,
the police filed a charge-sheet before the learned JMFC,
Vadodara. As the case was triable by the Court of Sessions, it
was committed under Section 209 of the Code and numbered
as Sessions Case No. 146/2003. The respondent-accused
pleaded not guilty and claimed to be tried.
2.4 T o prove its case, the prosecution has examined the
following witnesses:-
Sr. No. Name of the Witnesses Exhibit
1 Narsinhbhai Dhanjibhai 7
2 Sanji Suryakumar 9
3 Ashwinbhai Babubhai 12
4 Chandubhai Gordhanbhai 13
5 Lilaben Narsinhbhai 14
6 Hasmukhbhai Lavajibhai 22
7 Vijayaben Hasmukhbhai 23
8 Prosecutrix-victim 24
8 Sumitraben Narsinhbhai 25
9 Gambhirsinh Jashvantsinh 26
10 Dr. Niraj Desai 32
11 Dinesh Rambhai Boricha 33
12 Mahamad Husain Malek 38
13 Baldevji Takuji Chavda 39
2.5 In addition to this, the prosecution has also produced the
following documentary evidence.
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Sr. No. Particulars Exhibit
1 Chargesheet 1
2 Complaint 8
3 Birth Certificate 11
4 Birth Certificate 15
5 Panchnama 18
6 Medical Certificate 16
7 Medical Certificate 17
8 Panchnama 18
9 Police report 19
10 FSL letter 20
11 Police report 21
12 Police Commissioner letter to Surat Police
Commissioner
28
13 Police Commissioner letter to Gondaliya Narsinhbhai
Dhanjibhai
29
14 Police Yadi date 6.3.2003 30
15 Police report 31
2.6 After closure of the evidence, the statement of the
accused under section 313 of the Code was recorded wherein
accused denied of having committed any offence and has
stated that he is innocent.
2.7 After hearing both sides and considering the evidence on
record, the learned trial Judge by impugned judgment and
order dated 22.04.2004 in Sessions Case No. 146 of 2003 has
acquitted the accused from all the charges levelled against
him.
3. Heard learned Additional Public Prosecutor Ms. Jyoti
Bhatt, for the appellant-State. Though notice being served,
respondent-accused has chosen not to remain present before
this Court.
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4. Learned Additional Public Prosecutor Ms. Jyoti Bhatt has
submitted that the impugned judgment and order of acquittal
passed by the learned trial Judge is contrary to law. She has
submitted that the learned trial Judge has based his findings
on inferences that are not supported by the facts of the case
and on presumptions not permitted by law. She has submitted
that the learned trial Judge has failed to properly appreciate
the oral and documentary evidence on record and has thereby
erred in acquitting the respondent-accused. She has
submitted that the learned trial Judge has failed to properly
appreciate the depositions of the complainant, PW-1
Narsinhbhai Dhanjibhai Gondalia, at Exh. 7, PW-5 Lilaben
Narsinhbhai, mother of the victim, at Exh. 14, PW-9
Sunitaben, sister of the victim, at Exh. 25, and PW-8 the
victim, at Exh. 24. She has submitted that these witnesses
have supported the prosecution case and stated that the
respondent-accused had taken the minor victim away from the
lawful guardianship of her father with the intention of having
sexual intercourse with her. She has submitted that the
respondent-accused took her to different places and
committed rape upon her against her will when she was below
18 years of age and the learned trial Judge has failed to
properly consider these evidences.
4.1 Learned Additional Public Prosecutor has submitted that
the learned trial Judge has failed to properly appreciate the
evidence of PW-5 Lilaben Narsinhbhai at Exh. 14 and PW-9
Sunitaben at Exh. 25 as both witnesses have supported the
prosecution case and corroborated the material facts stated
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by the complainant and therefore, the learned trial Judge
ought to have properly considered their evidence while
deciding the case against the respondent-accused. She has
submitted that the learned trial Judge has failed to properly
appreciate the deposition of the PW-8 victim, at Exh. 24
wherein she stated that on 15.10.2002, while travelling from
Dhoraji to Surat with Lilaben, Sunitaben and the respondent-
accused, she got down from the bus at around 4:00 to 5:00
a.m. to use the toilet, and the respondent-accused also got
down and after the bus left, the respondent-accused took her
to Mumbai via Bhayandar Railway Station and then to the
house of Hasmukhbhai Savaliya and Vijayaben Savaliya,
where he committed rape upon her against her will. She has
submitted that the victim’s evidence supports the prosecution
case regarding the alleged offences under Sections 363, 366
and 376 of the IPC. She has submitted that the learned trial
Judge has failed to properly appreciate the evidence of PW-2
Sanjiv Mehta, Sub-Registrar, Junagadh Mahanagar Palika,
Junagadh, at Exh. 9, along with the entry in the register at
page 40, Serial No. 5038, and the birth certificate at Exh. 11
as these documents support the prosecution case that the
victim’s date of birth was 04.11.1987.
4.2 Learned Additional Public Prosecutor has submitted that
the learned trial Judge has failed to properly appreciate the
deposition of PW-11 Dr. Niraj Desai at Exh. 32, who examined
the victim and estimated her age to be between 14 and 17
years. The said witness produced the relevant certificate at
Exh. 17 and stated that the victim had given him a history of
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rape committed against her will on 16.10.2002 between 9:30
and 10:00 a.m. and his evidence was relevant to the
prosecution case and required proper consideration. She has
submitted that the learned trial Judge has failed to properly
appreciate the documentary evidence, which corroborates the
testimony of the victim and the evidence of the Medical
Officer.
4.3 Learned Additional Public Prosecutor has submitted that
the learned trial Judge has erred in treating the delay in filing
the complaint as a ground to disbelieve the prosecution case.
As the alleged incident took place in October 2002 and the
complaint was filed on 11.04.2003, the learned trial Judge
ought to have considered the evidence and the explanation, if
any, for the delay before drawing an adverse inference against
the prosecution.
4.4 Learned Additional Public Prosecutor has submitted that
learned trial Judge has not believed the deposition of minor
victim girl though she has fully supported the prosecution
case.
4.5 Learned Additional Public Prosecutor has submitted that
the learned trial Judge has not properly appreciated the
evidence of the doctor though he has deposed that the victim
girl has narrated the incident regards to commission of rape
on 16.10.2002 at about 9.30 to 10.00 a.m. against her will.
4.6 Learned Additional Public Prosecutor has submitted that
the learned trial Judge has failed to appreciate that when oral
evidence gets corroboration from medical evidence in all
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respect then in that case prosecution cannot be thrown out
merely on the basis of minor omissions, contradiction and
inconsistencies.
4.7 Ms. Jyoti Bhatt, learned Additional Public Prosecutor,
lastly, urges before the Court that present appeal may be
allowed and the impugned judgment and order of acquittal
passed by the learned trial Judge may be quashed and set
aside.
5. Upon perusal of the impugned judgment and order, as
well as the submissions advanced by the learned Additional
Public Prosecutor, the issues that arises for consideration
before this Court are as under:-
Whether the learned trial Judge committed any error in
passing the impugned judgment and order of acquittal?
Whether the leaned trial Judge, while appreciating the
evidence of the prosecution witnesses, has committed
any error of law or fact?
Whether the impugned judgment and order of acquittal
suffers from any illegality or perversity?
6. In view of the above-stated submissions and upon
perusal of the impugned judgment and order of acquittal, as
well as the evidence recorded by the learned trial Judge, it is
appropriate to first examine relevant facts of the case. That
the complainant, Narsinhbhai Dhanjibhai Gondalia, lodged a
complaint being C.R. No. I-94/2003 with Vadodara City Police
Station, alleging that the accused, Sanjay Gordhanbhai, who
resided at his house as a paying guest, abducted his minor
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daughter-victim born on 04.11.1987. On 14.10.2002, the
accused and the victim boarded a bus from Dhoraji to Surat
along with witnesses Lilaben and Sunitaben. On 15.10.2002,
they got down near Golden Chokdi, Vadodara, for
refreshments and thereafter went missing. On 19.10.2002, the
complainant traced them to the accused’s residence at Nani
Marad, where it was allegedly revealed that the accused had
forcibly committed sexual intercourse with the victim.
Accordingly, offences under Sections 363, 366 and 376 of the
IPC were registered against the accused.
7. Upon perusal of the evidence of the complainant, it
appears that, in his initial version, the complainant stated that
his daughter had left the house with his son-in-law and that,
while they were travelling to Dhoraji to Surat by bus, she got
down from the bus to attend the nature call and to drink
water. Thereafter, she did not return to the bus. When the
complainant came to know about this incident, he inquired to
his son-in-law about the whereabouts of his daughter.
8. From the cross-examination of the complainant, it
further emerges that the present respondent-accused was
residing at the complainant's residence as paying guest. A
dispute had arisen between them regarding outstanding rent
and other charges, as a result of which their relations had
become strained.
9. It is pertinent to note that, though the incident allegedly
took place on 14.10.2002, the complaint was lodged by the
complainant after a period of approximately six months. The
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complainant stated that, during the intervening period, he
made efforts to search his daughter. However, his assertion in
this regard is not corroborated by the evidence of other
witnesses.
10. Upon perusal of the evidence of the minor victim- PW-8
and her mother, Lilaben PW-5, the prosecution's case
regarding the alleged inducement by the present respondent
and the kidnapping of the minor for the purpose of marriage
does not find adequate support. The victim examined as PW-8,
has admitted in her deposition that she was in a relationship
with one Ashokbhai, with whom she had eloped and
subsequently married.
11. It further emerges from her statement that she had not
been abducted by the present respondent and had not been
kept in his custody. Moreover, upon perusal of the evidence of
the doctor and the medical certificate produced before the
Court, it appears that the victim was habituated to sexual
relations and that no external or internal injuries were found
on her body. Having considered the relevant facts and
circumstances and by duly appreciating the evidence of the
material witnesses, the learned trial Judge has recorded
detailed reasons, particularly from paragraph 8 onwards, and
has arrived at conclusion in paragraphs 29. The learned trial
Judge has, therefore, rightly passed the impugned judgment
and order.
12. Upon perusal of the reasons recorded by the learned
trial Judge, we are of the opinion that the impugned judgment
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and order do not suffer from any illegality or infirmity. Having
carefully examined the evidence on record, including the
depositions of the material witnesses, we find that the learned
trial Judge was justified in passing the impugned judgment
and order. No case is made out to interfere with the impugned
judgment and order of learned trial Judge.
13. It is well settled that the appellate court has the power
to reappreciate the evidence and interfere with an order of
acquittal where the findings recorded by the learned trial
Judge are perverse, manifestly erroneous, or otherwise
unsustainable in law, such interference must be justified by
the facts and circumstances of the case and the settled
principles governing appeals against acquittal. However, in
the present case, upon careful examination of the evidence of
the three material witnesses, namely, the victim PW-8, her
mother, Lilaben PW-5, and her father, Narsihnbhai, PW-1 who
is the complainant, we find that the learned trial Judge has
duly appreciated their evidence and has rightly passed the
impugned judgment and order of acquittal.
14. Further, on perusal of the record of the appeal, it
transpires that the respondent-accused has established his
innocence before the learned trial Judge and that, after due
appreciation of the oral as well as documentary evidence and
other material placed on record, the learned trial Judge has
rightly passed the impugned judgment and order of acquittal.
The findings recorded by the learned trial Judge are just,
proper and in accordance with the settled principles of law
and, therefore, no interference is warranted by this Court.
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15. 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
innocence is further reinforced, reaffirmed and strengthened
by the learned trial Judge.
16. 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
learned trial Judge. 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
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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 is connected with the commission of
the crime with which he is charged.
17. 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
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, we are in complete agreement with the findings
recorded by the learned trial Judge.
18. 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
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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 the 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.”
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19. 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.
20. On perusal of the impugned judgment and order, it
clearly transpires that the learned trial Judge has not
committed any error of fact and law in appreciating the
evidence on record and in acquitting the accused from the
charges levelled against him. 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 learned trial Judge is sustainable
and the present appeal is liable to be dismissed.
21. In view of the above, t h e present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
dated 22.04.2004 in Sessions Case No.146 of 2003 passed by
the learned trial Judge is hereby confirmed. Bail bond stands
cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.
Sd/-
(BHARGAV D. KARIA, J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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