DEVENDRABHAI RAJESHBHAI CHAVDA vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/CR.A/1628/2026 JUDGMENT DATED: 22/10/2026
(GJHC240519852026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1628 of 2026
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2026
In R/CRIMINAL APPEAL NO. 1628 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS
================================================================
Approved for Reporting Yes No
================================================================
DEVENDRABHAI RAJESHBHAI CHAVDA
Versus
STATE OF GUJARAT & ANR.
================================================================
Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MS URMILA N DESAI(5609) for the Opponent(s)/Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 22/10/2026
ORAL JUDGMENT
1. Upon considering the applicant-convict’s application
for suspension of sentence, this Court observed glaring
procedural infirmities and manifest illegalities committed by
nd
both, the learned 2 Additional Sessions Judge & Special
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(POCSO) Judge, Kheda at Nadiad, and the learned Public
Prosecutor, during the trial of the Special (POCSO) Case
No.20 of 2021. Consequently, to prevent a miscarriage of
justice and to ensure the preservation of judicial integrity,
this Court deems it imperative not to consider any
interlocutory reliefs at this stage and to remand back the
matter, in the interest of justice.
2. The present Criminal Appeal has been preferred by the
appellant-convict (i.e. the original accused) under the
provisions of Section 415 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, seeking to quash and set aside the
judgment and order of conviction and sentence dated
nd
08.07.2026 passed by the learned 2 Additional Sessions
Judge & Special Judge (POCSO), Kheda at Nadiad, in
Special (POCSO) Case No.20 of 2021.
3. By the aforesaid judgment and order of conviction and
sentence, the present applicant-appellant has been held
guilty and convicted for the commission of offences
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punishable under Sections 305, 354(a) and 506 of the
Indian Penal Code, as well as, under Sections 17 and 18 of
the Protection of Children from Sexual Offences Act.
Consequently, the trial court has imposed sentence upon
the applicant-appellant to undergo imprisonment as under :
Section
Imprisonment Fine
(Amount)
In default of payment
IPC
of fine
305 Rigorous Imprisonment
25000 Simple Imprisonment
for ten years
for one year
354(a) Rigorous Imprisonment
10000 Simple Imprisonment
for three years
for six months
506 Rigorous Imprisonment
10000 Simple Imprisonment
for three years
for six months
17 of
POCSO
Rigorous Imprisonment
25000 Simple Imprisonment
for ten years
for one year
Act
18 of
POCSO
No Separate Punishment
Act
4. It appears from the judgment of the trial court that the
present applicant-appellant has been convicted solely
relying upon the dying declarations at Exhibits-29 and 32.
It appears that the alleged incident occurred on 25.01.2021,
when the deceased-victim girl committed suicide by pouring
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kerosene over herself and setting herself ablaze. She
subsequently succumbed to her injuries during treatment
on 04.02.2021. It also appears that immediately after the
occurrence, the victim was taken to the hospital at
Karmasad where she had narrated the history regarding the
incident, and thereafter, she was shifted to the Civil
Hospital at Ahmedabad, where her dying declaration was
recorded (Exhibits-29 and 32). Furthermore, it appears from
the evidence on record that the prosecutor who conducted
the trial, for the reasons best known to him, had not
examined the doctor who treated and recorded the history
given by the deceased, as a witness. It appears that the
indoor medical papers of the deceased were also not
produced before the trial court for its perusal. Furthermore,
the Medical Officer who endorsed on the ‘ Yadi ’ for recording
of the dying declaration regarding the consciousness and
orientation of the deceased, has also not been examined as
a witness by the prosecutor before the trial court.
5. Considering the same, this Court had, vide order dated
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24.09.2026, directed the learned APP to call for the remarks
from the concerned prosecutor who conducted the trial, as
to what were the prevailing circumstances for not examining
the Medical Officer who treated the deceased and endorsed
on the Yadi for recording the dying declaration of the
deceased.
6. In pursuance thereto, learned APP Mr.Bhargav Pandya
had tendered the remarks submitted by the prosecutor who
conducted the trial, wherein the prosecutor has stated that
he had examined the doctor who conducted the postmortem
of the deceased, namely, Shri Bhargav Jhaveri, as Witness
No.4 vide Exh.15, and since the doctor, in his deposition,
had opined that it was a case of suicidal death and the
deceased died of an infection due to burn injuries, he had,
on his own prudence and discretion, dropped the treating
doctor as a witness, and consequently, the deceased's
medical case papers were not produced.
7. Furthermore, the prosecutor, in his remarks, has
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stated that the learned Executive Magistrate, who first
recorded the dying declaration of the deceased, was
examined as Witness No.7 vide Exh.27, and since it was
reflected from his testimony that before recording the dying
declaration, the endorsement of the doctor was obtained on
the Yadi Exh.28 and the deceased was fully oriented & well-
acquainted with the Gujarati language, as well as,
considering the provisions of Section 294(3) of the Code of
Criminal Procedure, which allows a doctor’s endorsement of
opinion for recording the dying declaration to be admitted as
evidence, in his prudence and discretion, he had not
examined the doctor who endorsed on the Yadi, as a
witness.
8. In his remarks, the prosecutor has stated that the
learned Executive Magistrate who recorded the second dying
declaration was examined as Witness No.8 vide Exh.30, and
since it reflected from his testimony that before recording
the dying declaration, the endorsement of the doctor was
obtained on the Yadi Exh.31, wherein the doctor had
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endorsed that the patient was conscious and oriented, as
well as, considering the provisions of Section 294(3) of the
Code of Criminal Procedure, which allows a doctor’s
endorsement of opinion for recording the dying declaration
to be admitted as evidence, in his prudence and discretion,
he had not examined the doctor who endorsed on the Yadi,
as a witness.
9. Having heard learned advocates appearing for the
respective parties and having perused the evidence as
pointed out by them, as well as, the judgment of the trial
court, it prima facie appears that the present applicant-
appellant has been convicted solely relying upon the dying
declarations at Exhibits-29 and 32, for the commission of
offences punishable under Sections 305, 354(a) and 506 of
the Indian Penal Code, as well as, under Sections 17 and 18
of the Protection of Children from Sexual Offences Act. It
further appears that the alleged incident occurred on
25.01.2021, when the deceased committed suicide by
pouring kerosene over herself and setting herself ablaze.
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She subsequently succumbed to her injuries during
treatment on 04.02.2021. It also appears that immediately
after the occurrence, the victim was taken to the hospital at
Karmasad, where she had narrated the history regarding
the incident, and thereafter, she was shifted to the Civil
Hospital at Ahmedabad, where her dying declaration was
recorded (Exhibits-29 and 32). Furthermore, it appears from
the evidence on record that the prosecutor who conducted
the trial had not examined the doctor who treated and
recorded the history given by the deceased, as a witness. It
also appears that the indoor medical papers of the deceased
were not produced before the trial court for its perusal.
Furthermore, the Medical Officer who endorsed on the ‘ Yadi ’
for recording of the dying declaration regarding the
consciousness and orientation of the deceased, has also not
been examined as a witness by the Public Prosecutor before
the trial court.
10. This Court has considered the decision of the Supreme
Court rendered in the case of Nallapati Sivaiah vs. Sub
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Divisional Officer, Guntur, A.P. , reported in AIR 2008 SC
19 , wherein, in paragraph-26, the Supreme Court has
observed as under :
“26. In Kanchy Komuramma V/s. State of. A.P. [(1995)
Supp 4 SCC 118], this court while considering the
evidentiary value of a dying declaration noted that the
prosecution for reasons best known to it did not
examine the doctor who made the endorsement on
dying declaration certifying that "the patient was in a fit
state of mind to depose" and having further noticed that
no other witness was examined to prove the certificate
of the doctor held that the same creates a doubt as to
whether the patient was actually in a proper mental
condition to make a consciously truthful statement. It
was held:
“This infirmity renders it unsafe to rely on the
dying declaration. As a matter of fact, the failure of
the prosecution to establish that the decease
before she made the dying declaration, was in
proper mental condition to make the dying
declaration detracts materially from the reliability
of the dying declaration and it would not be safe to
rely upon it. That the dying declaration has been
recorded by Judicial. Magistrate, by itself is nova
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proof of truthfulness of the dying declaration,
which in order to earn acceptability has still to
pass the test of scrutiny of the court. There are
certain safeguards which must be observed by a
magistrate when requested to record a dying
declaration. He must record the dying declaration
satisfying himself that the declarant is in a proper
mental state to make the statement. He must also
obtain the opinion of the doctor, if one is available,
about the fitness of the patient to make a
statement and the prosecution must prove that
opinion at the trial in the manner known to law.””
11. Considering the aforesaid, this Court is of the opinion
that convicting the present applicant-appellant solely relying
upon the dying declarations at Exhibits-29 & 32 without
examining the doctor who treated the deceased and
recorded the history, the doctor who endorsed the ‘ Yadi ’ for
recording the dying declaration regarding the consciousness
and orientation of the deceased, and without verifying the
indoor medical papers of the deceased, amounts to a
miscarriage of justice and violates the principles of a fair
trial.
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12. This Court has also considered the decision of the
Supreme Court rendered in the case of Anees vs. State
Govt. of NCT , reported in AIR 2024 SC 2297 , wherein, the
Supreme Court, in paragraphs 73 and 74 as under :
“73. If the questioning by the public prosecutor is not
skilled, like in the case at hand, the result is that the
State as a prosecuting agency will not be able to elicit
the truth from the child witness. It is the duty of the
court to arrive at the truth and subserve the ends of
justice. The courts have to take a participatory role in
the trial and not act as mere tape recorders to record
whatever is being stated by the witnesses. The judge
has to monitor the proceedings in aid of justice. Even if
the prosecutor is remiss or lethargic in some ways, the
court should control the proceedings effectively so that
the ultimate objective that is the truth is arrived at. The
court must be conscious of serious pitfalls and
dereliction of duty on the part of the prosecuting agency.
Upon failure of the prosecuting agency showing
indifference or adopting an attitude of aloofness, the
trial judge must exercise the vast powers conferred
under Section 165 of the Evidence Act and Section 311
of the Cr.P.C. respectively to elicit all the necessary
materials by playing an active role in the evidence
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collecting process. (See: Zahira Habibulla H. Sheikh &
Anr. vs. State of Gujarat & Ors., (2004) 4 SCC 158 ).
74. The judge is expected to actively participate in the
trial, elicit necessary materials from the witnesses in the
appropriate context which he feels necessary for
reaching the correct conclusion. The judge has
uninhibited power to put questions to the witness either
during the chief examination or cross-examination or
even during re-examination for this purpose. If a judge
feels that a witness has committed an error or slip, it is
the duty of the judge to ascertain whether it was so, for,
to err is human and the chances of erring may
accelerate under stress of nervousness during cross-
examination. (See: para 12 of State of Rajasthan vs.
Ani alias Hanif & Ors., AIR 1997 SC 1023 ).
13. In the case of Varsha Garg vs. The State of Madhya
Pradesh and others , reported in AIR 2022 SC 3707 , the
Supreme Court in paragraph-25 has held as under :
“25. Further, the Court while relying upon the earlier
decisions in J.K. International v. State (Govt. of NCT of
Delhi), (2001) 3 SCC 462 Zahira Habibulla H. Sheikh v.
State of Gujarat, (2004) 4 SCC 158 Manu Sharma v.
State (NCT of Delhi), (2010) 6 SCC 1 Mohanlal Shamji
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Soni v. Union of India, (1991) Supp (1) SCC 271
Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110
noted:
“31……a criminal court cannot remain a silent
spectator. It has got a participatory role to play
and having been invested with enormous powers
under Section 311 CrPC, as well as Section 165 of
the Evidence Act, a trial court in a situation like the
present one where it was brought to the notice of
the court that a flagrant contradiction in the
evidence of PW 18 who was a statutory authority
and in whose presence the test identification
parade was held, who is also a Judicial
Magistrate, ought to have risen to the occasion in
public interest and remedied the situation by
invoking Section 311 CrPC, by recalling the said
witness with further direction to the Public
Prosecutor for putting across the appropriate
question or court question to the said witness and
thereby set right the glaring error accordingly. It is
unfortunate to state that the trial court miserably
failed to come alive to the realities as to the nature
of evidence that was being recorded and miserably
failed in its duty to note the serious flaw and error
in the recording of evidence of PW 18.”
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14. In a recent judgment, the Supreme Court, in the case
of Dhanraj vs. State of Rajasthan , reported in 2026 INSC
958 , in paragraphs-45 and 46, has held as under :
“45. A criminal trial is not merely an adversarial
contest between the prosecution and the accused. The
ultimate obligation of the Court is to discover the truth
and ensure that the finding of guilt rests upon legally
admissible and reliable evidence. The Court is not
expected to remain a mute spectator where an aspect of
evidence bearing directly upon the guilt or innocence of
the accused is left unattended. The role of the Court is
not confined to passively recording the evidence as
presented by the parties; it is required to ensure that the
material evidence necessary for a just adjudication is
properly brought on record.
46. Section 165 of the Indian Evidence Act, 1872
(Corresponding to Section 168 of the Bharatiya Sakshya
Adhiniyam, 2023) confers wide powers upon the Court
to put questions to witnesses and to direct production of
documents or things in order to discover or obtain proper
proof of relevant facts. In Zahira Habibulla H. Sheikh
v. State of Gujarat , (2004) 4 SCC 158, this Court held
that Section 311 of the CrPC (Corresponding to Section
348 of the Bharatiya Nagarika Suraksha Sanhita, 2023)
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and Section 165 of the Evidence Act, 1872 confer vast
and wide powers upon the Presiding Officer and that
the Courts are not expected to function as mere
recording machines, passively receiving whatever the
parties choose to place before them. The Court is
required to take a participatory role in the trial, evince
active interest and elicit all material necessary for
arriving at the truth.”
15. A conjoint reading of Section 311 CrPC and Section
165 of the Evidence Act underscores that a trial court must
not remain a mere spectator, but is duty-bound to
proactively participate in the proceedings to ensure that
neither any extraneous material is permitted to be brought
on record nor any relevant fact is left out. The court is
under an inalienable obligation to ensure that all such
evidence which are essential for the just decision of the case
are brought on record, irrespective of any laches, omissions,
or oversight by the litigating parties.
16. This Court is satisfied that the trial court has failed to
perform its lawful obligation under Section 311 CrPC read
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with Section 165 of the Evidence Act, inasmuch as, the
most vital witnesses whose deposition was imperative for
arriving at the truth of the matter, i.e. the doctor who
treated and recorded the history given by the deceased and
the doctor who endorsed on the ‘ Yadi ’ for recording of the
dying declaration regarding the consciousness and
orientation of the deceased, were not examined by the
prosecution and the trial court took no steps whatsoever to
summon them as witnesses by exercising its powers under
Section 311 CrPC and Section 165 of the Evidence Act. The
non-examination of the said witnesses at the trial is a fatal
lacuna which persuades this Court to draw an adverse
inference against the prosecution. Therefore, to prevent
such an outcome and to ensure the preservation of judicial
integrity, the matter must be remanded to the trial court for
a decision afresh, in accordance with law. The ends of
justice would be met if the parties are afforded an
opportunity to recall and cross-examine the material star
witnesses who were not examined by the prosecution during
the trial.
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17. On the facts and in the circumstances of the case, the
judgment & order of conviction and sentence dated
nd
08.07.2026 passed by the learned 2 Additional Sessions
Judge & Special Judge (POCSO), Kheda at Nadiad, in
Special (POCSO) Case No.20 of 2021, is hereby quashed and
set-aside. The matter is remanded back to the trial court for
a decision afresh. The trial court shall decide the case and
pass appropriate orders on its own merits in accordance
with law, after affording opportunity of hearing to both the
sides and without being influenced by the order passed by
this Court.
18. It is needless to clarify that this Court has not gone
into the merits of the case.
19. Records and proceedings be sent back to the
concerned trial court. The trial court shall expedite the
proceedings and dispose of the case within a period of six
months from the date of receipt of copy of this order.
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20. In view of the disposal of the main matter, the Criminal
Miscellaneous Application would not survive and the same
stands disposed of accordingly.
21. Before parting with the judgment, this Court feels it
expedient to observe that while conducting the trial, the trial
court shall remain deeply conscious of the judicial
sensitivity and meticulous care mandated by the Supreme
Court in handling the proceedings under the POCSO Act,
especially in tragic instances like the present case, where a
14-year-old victim girl was driven to self-immolation due to
sexual harassment by the accused. The Supreme Court has
repeatedly emphasized that a trial court must not sit as a
passive spectator or a mere recorder of evidence; rather, it
owes a bounden duty to ensure all material evidence is
brought to light to arrive at a just determination.
Regrettably, a bare perusal of the impugned judgment
reveals that the trial court failed to appreciate these
foundational tenets, culminating in a grave error of law and
a patent failure to bring crucial evidence on record
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necessary for a just determination.
22. Registry shall circulate a copy of this judgment
amongst the State judiciary.
(VIMAL K. VYAS, J.)
/MOINUDDIN
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