STATE OF GUJARAT vs HAJIBHAI NURMAMADBHAI AMAD PAUTRA
- Court
- Gujarat High Court
R/CR.A/651/2016 JUDGMENT DATED: 27/10/2026
(GJHC240525532016)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 651 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
HAJIBHAI NURMAMADBHAI AMAD PAUTRA
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/10/2026
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378 of the Code of Criminal Procedure, 1973 against
the judgement and order of acquittal passed by the learned
Special Judge, POCSO Court, Jamnagar (hereinafter referred
to as “the learned Trial Court”) in Special POCSO Case No.16
of 2014 on 30.01.2016, whereby, the learned Trial Court has
acquitted the respondent for the offence punishable under
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Sections 354, 506 and 506(2) of Indian Penal Code, 1860 and
Section 12 of the Protection of Children from Sexual Offences
Act, 2012.
1.1 The respondent is hereinafter referred to as “the
accused” as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the
case are as under:
It is the case of the prosecution that on 21.01.2014,
2.1
the complainant was present in her kitchen and was engaged
in cooking, while her minor daughter, aged about 10 years,
was watching television in the house. At that time, the
accused entered the house for the purpose of watching
television and, allegedly, indulged in acts amounting to
outraging the modesty of the minor victim. It is further
alleged that the complainant, upon entering the room,
witnessed the accused touching the head and cheeks of the
minor daughter. When the complainant questioned the
accused about his conduct, he allegedly became enraged and
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threatened to kill all the members of the family. Upon being
questioned by the complainant, the minor victim is stated to
have disclosed that the accused had committed similar acts on
two previous occasions as well. Thereafter, when the
complainant’s husband returned home at about 9:00 p.m., the
complainant apprised him of the incident. However, owing to
the apprehension of social stigma and the fear of earning a
bad name in society, the complainant and her husband did not
immediately approach the police. Subsequently, on 25.01.2014
at 16:00 hours, the complainant lodged a complaint before
Bhanwad Police Station, District - Devbhoomi Dwarka,
alleging commission of offences punishable under Sections
354, 504 and 506(2) of the Indian Penal Code, 1860, and
Section 12 of the Protection of Children from Sexual Offences
Act, 2012. Pursuant thereto, the complaint came to be
registered as I-C.R. No. 7 of 2014.
2.2 The Investigating Officer recorded the statements
of the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
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sheet came to be filed before the Court of the Sessions Judge,
Jamnagar and the case was registered as Special POCSO Case
No.16 of 2014
2.3 The accused was duly served with the summons
and the accused appeared before the learned Trial Court and
it was verified whether the copies of all the police papers
were provided to the accused as per the provisions of Section
207 of the Code. A charge at Exh.6 was framed against the
accused and the statement of the accused was recorded at
Exh.7 wherein, the accused denied the contents of the charge
and the entire evidence of the prosecution was taken on
record.
2.4 The prosecution examined 7 witnesses and
produced 5 documentary evidences on record in support of his
case and after the learned Additional Public Prosecutor filed
the closing pursis, the further statement of the accused under
Section 313 of the Code of Criminal Procedure, 1973 was
recorded. After the arguments of the learned Additional Public
Prosecutor and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit the accused from the charges
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levelled against him.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant - State has filed
the present appeal mainly stating that the impugned judgment
and order of acquittal passed by the learned Trial Court is
contrary to law and evidence on record and the learned Trial
Court has not appreciated the fact that all the witnesses have
supported the case of the prosecution and during the cross-
examination, nothing adverse has been elicited in favor of the
respondent. The case has been proved beyond reasonable
doubt and the prosecution has successfully established the
case against the respondent and the judgment and order of
acquittal is unwarranted, illegal, and without any basis in the
eyes of the law and the reasons stated while acquitting the
respondent are improper, perverse and bad in law. Hence the
impugned judgment and order passed by the learned Trial
Court deserves to be quashed and set aside.
4. Heard learned APP Ms. C.M. Shah for the appellant
State and learned advocate Mr. Makbul I. Mansuri for the
respondent. Perused the impugned judgement and order of
acquittal and have reappreciated the entire evidence of the
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prosecution on record of the case.
5. Learned APP Ms. C.M. Shah has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the complainant has fully
supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
6. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court regarding the scope of
interference in acquittal appeals in the case of Chandrappa
& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415 , wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court
stated:
"While deciding an appeal against acquittal, the power of the
Appellate Court is no less than the power exercised while hearing
appeals against conviction. In both types of appeals, the power
exists to review the entire evidence. However, one significant
difference is that an order of acquittal will not be interfered with,
by an appellate court, where the judgment of the Trial Court is
based on evidence and the view taken is reasonable and plausible.
It will not reverse the decision of the Trial Court merely because a
different view is possible. The appellate court will also bear in mind
that there is a presumption of innocence in favour of the accused
and the accused is entitled to get the benefit of any doubt. Further
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if it decides to interfere, it should assign reasons for differing with
the decision of the Trial Court".
From the above decisions, in our considered view, the
following general principles regarding powers of appellate Court
while dealing with an appeal against an order of acquittal emerge;
(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 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
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disturb the finding of acquittal recorded by the Trial Court.
7. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption of
innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. The learned
Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the
prosecution has not proved the case beyond reasonable
doubts, the presumption of innocence in favour of the
accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after re
appreciation, the view taken by the learned Trial Court was a
possible view, there is no reason for the Appellate Court to
interfere in the same.
8. To prove the offence against the accused, the
prosecution has in all examined ten witnesses and produced
five documentary evidences in support of their case.
The complainant, examined as PW-1 at Exhibit 9,
8.1
has deposed that on the date of the incident, she was in the
kitchen of her house between 6:00 p.m. and 7:00 p.m., while
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her minor daughter was watching television. According to her
testimony, the accused came to her house and committed an
act outraging the modesty of her daughter by removing her
lower garment. When the complainant entered the room and
questioned the accused about his conduct, he allegedly
threatened her, stating that if she disclosed the incident to
anyone, he would kill her, and thereafter left the room. The
complainant has further stated that, upon being questioned,
her daughter disclosed that the accused had committed
similar acts on two earlier occasions. She has deposed that
when her husband returned home at about 9:00 p.m., she
informed him about the incident, whereafter they went to the
police station and lodged the complaint, which has been
produced at Exhibit 10.
In her cross-examination by the learned advocate
for the accused, the complainant admitted that the accused
was their relative and that they used to visit each other’s
houses on festivals and other occasions and extend assistance
to one another in times of difficulty. She further admitted that
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her husband and brother-in-law had purchased a truck from
the accused and that the said truck had been seized by the
police in connection with some offence. She also stated that
the accused had previously served as the Sarpanch of the
village and used to facilitate the travel of people for Haj and
Umra. According to her, following the incident, the police had
seized the accused’s passport. Significantly, the complainant
admitted that, in the complaint lodged by her, she had not
stated that the accused had removed the lower garment of
her daughter.
PW-2, Ibrahimbhai Jumabhai examined at Exhibit
8.2
12, is the panch witness to the panchnama of the place of
offence, which has been produced at Exhibit 13. The witness
has fully supported the case of the prosecution.
PW-3, examined at Exhibit 14, is the father of the
8.3
victim and the husband of the complainant. He has deposed
that on the date of the incident, he had gone out and, upon
returning home between 8:00 p.m. and 9:00 p.m., his wife
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informed him that the accused had entered their house and
that, when their daughter shouted, the accused had covered
her mouth with his hands. He further stated that, upon
hearing the victim’s cries, his wife, who was in the kitchen,
entered the room and witnessed that the accused had
removed the lower garment of their daughter. According to
this witness, the accused also threatened his wife with death
if she disclosed the incident to anyone. The witness has
further deposed that, upon making inquiries with his
daughter, she disclosed that the accused had, on two earlier
occasions, taken her to his house, removed her lower garment
and asked her to bend over, although no other act had taken
place on those occasions.
In his cross-examination by the learned advocate
for the accused, the witness admitted that he had no personal
knowledge of the incident. He further admitted that, in his
statement before the police, he had not stated that the victim
had shouted or that the accused had covered her mouth with
his hands. He also admitted that he had not informed the
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police that the accused had removed the lower garment of his
daughter and asked her to bend over. The witness further
admitted that the police had seized the truck purchased by
him in connection with some incident and that the accused
was his relative and an uncle within the family. He also
acknowledged that the accused used to facilitate the travel of
people for Umra and that, at the time of the incident, the
accused was scheduled to travel for Umra. According to the
witness, owing to the seizure of the accused’s passport
following the incident, the accused could not undertake the
said work relating to Umra.
PW-4, the minor victim, examined at Exhibit 17, has
8.4
deposed that the accused came to her house at about 6:00
p.m. to watch television. She stated that, while she was
watching television, the accused came and sat near the door.
She was sitting on the bed when the accused touched her
cheeks and chest. Thereafter, he allegedly removed the string
of her lower garment and asked her to bend over. At that time,
her mother entered the room and became angry with the
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accused, whereupon the accused threatened to kill her.
Thereafter, the accused left the house, and her mother lodged
the complaint. The victim further stated that the accused had
visited their house on earlier occasions, but no such incident
had occurred previously.
In her cross-examination by the learned advocate
for the accused, the victim stated that she used to play with
the children at the accused’s house and that the members of
the accused’s family used to give her snacks to eat. She
further stated that, at the time of the incident, a police case
had been filed against her father. She also stated that the
television was switched on and a film was being played when
the incident occurred. The victim further acknowledged that
her parents maintained good relations with all their
neighbours, who belonged to the same community.
PW-5, Pratapsinh Mansinh Jadeja, examined at
8.5
Exhibit 22, has deposed that on 25.01.2014, he was serving as
a Police Station Officer (PSO) at Bhanwad Police Station. He
stated that he had registered the complaint as I-C.R. No. 7 of
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2014 and had made the corresponding entry at Entry No. 12
in the Station Diary.
PW-6, Narendrasinh Anopsinh Jadeja examined at
8.6
Exhibit 24, is the Assistant Sub-Inspector of Police who had
arrested the accused. He has deposed that, in connection with
the arrest, he made an entry in the Station Diary bearing
Entry No. 16 of 2014.
8.7 PW-7, Kanubhai Bhagwanjibhai Gadhvi, examined
at Exhibit 26, is the investigating officer who has deposed
regarding the various steps undertaken by him during the
course of the investigation. He stated that he had collected
the birth certificate of the victim, which has been produced at
Exhibit 21.
In his cross-examination, the investigating officer
admitted that he had not seized any muddamal during
investigation. He further admitted that the statement of the
victim had not been recorded under Section 164 of the Code
of Criminal Procedure. Significantly, he also stated that,
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during the course of the investigation, it had not been found
that the accused had removed the lower garment of the
victim or had asked her to bend over.
Upon an overall appreciation of the evidence on
9.
record, this Court finds that the prosecution has failed to
establish its case beyond reasonable doubt and that the
learned Trial Court has rightly extended the benefit of doubt
to the accused. The testimony of the complainant and the
father of the victim suffers from material omissions and
contradictions when compared with the version set out in the
original complaint and the statements attributed to them
during the course of investigation. Although the complainant
has alleged that she witnessed the accused committing an act
outraging the modesty of her minor daughter, several
material particulars emerging in the depositions before the
learned Trial Court do not find mention in the original
complaint. Similarly, the father of the victim has introduced
material particulars regarding the alleged covering of the
victim’s mouth, removal of her lower garment and the
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accused asking her to bend over, which, as admitted by him in
his cross-examination, had not been stated before the police.
Such omissions assume significance in the facts of the
present case, particularly when the prosecution case rests
substantially upon the testimonies of the victim and her
parents. The testimony of the victim, PW-4, also contains
material improvements over the original version. While she
has deposed that the accused touched her cheeks and chest,
removed the string of her lower garment and asked her to
bend over, these specific allegations do not find mention in
the original complaint. Furthermore, whereas the
complainant and the father of the victim have attributed
similar acts to the accused on two earlier occasions, the
victim herself has stated in her deposition that, although the
accused had visited their house previously, no such incident
had occurred earlier. This material inconsistency, coupled
with the introduction of additional and more serious
particulars in the oral testimony, gives rise to a legitimate
doubt as to whether the prosecution witnesses have
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embellished the original version by way of subsequent
improvements and exaggeration. It is true that every omission
or discrepancy cannot, by itself, be a ground to discard the
testimony of a child victim; nevertheless, where the omissions
and contradictions relate to the very nature and particulars of
the alleged act, they assume material significance in
assessing the reliability of the prosecution case.
9.1 Another circumstance which cannot be altogether
overlooked is that the alleged incident occurred on
21.01.2014, whereas the complaint came to be lodged only on
25.01.2014. The complainant has stated that she informed
her husband about the incident when he returned home at
approximately 9:00 p.m. on the very same day. However, the
evidence does not satisfactorily explain the subsequent
course of events or the circumstances which led to the
lodging of the complaint after a delay of four days. Although
the apprehension of social stigma may, in an appropriate
case, furnish a plausible explanation for delayed reporting of
an offence of this nature, the explanation must be assessed in
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the light of the evidence available on record. In the present
case, the delay assumes relevance when considered
cumulatively with the material omissions, improvements and
inconsistencies in the depositions of the complainant, the
father of the victim and the victim herself. It has also
emerged in the evidence that the accused was related to the
complainant’s family and that there had been financial or
transactional dealings between the accused and the victim’s
family, including the purchase of a truck by the husband and
brother-in-law of the complainant from the accused, which
truck was subsequently seized by the police in connection
with another offence. This circumstance, by itself, would not
establish any ulterior motive for false implication; however, it
constitutes a relevant surrounding circumstance which the
Court is required to consider along with the other evidence
on record. The investigating officer has further admitted that
the statement of the victim was not recorded under Section
164 of the Code of Criminal Procedure. While such non-
recording cannot, by itself, be treated as a ground to reject
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the prosecution case, it remains a circumstance to be
considered in the overall evaluation of the evidence,
particularly in view of the other infirmities noticed
hereinabove. The investigating officer has also admitted that
the investigation did not establish that the accused had
removed the lower garment of the victim or had asked her to
bend over, thereby lending significance to the material
discrepancies concerning these allegations.
9.2 It is also pertinent to note that the learned Trial
Court has considered the applicability of the statutory
presumption under Section 29 of the Protection of Children
from Sexual Offences Act, 2012, and has concluded that the
said presumption would not apply to the offence punishable
under Section 12 of the Act. The question of the applicability
and scope of the statutory presumption must, of course, be
determined in accordance with the statutory provision and
the applicable legal principles. Nevertheless, irrespective of
the said aspect, the prosecution evidence in the present case
is required to be assessed on its own merits, having regard to
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the material contradictions, omissions and improvements
brought on record. The statutory presumption, wherever
applicable, does not dispense with the requirement of
establishing the foundational facts necessary to attract its
operation. In the present case, the learned Trial Court has
independently examined the evidence and has recorded
reasons for finding the prosecution case insufficient to sustain
a conviction. Upon reappreciation of the entire evidence, this
Court finds that the view adopted by the learned Trial Court
is a reasonably possible view arising from the evidence on
record. The settled principle governing an appeal against
acquittal requires the appellate Court to exercise due caution
before disturbing a judgment of acquittal, particularly where
the conclusions reached by the Trial Court are supported by a
plausible appreciation of the evidence and the prosecution
has failed to dispel the reasonable doubts arising from its
own case. The mere possibility of another view would not, in
the absence of compelling reasons, justify interference with
an order of acquittal. In the facts and circumstances of the
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present case, no perversity, illegality or material
misappreciation of evidence has been demonstrated so as to
warrant interference with the impugned judgment.
Consequently, this Court finds no cogent ground to
10.
disturb the acquittal recorded by the learned Trial Court. The
judgment and order of acquittal, therefore, deserve to be
affirmed, and the appeal against acquittal is liable to be
dismissed.
11. The impugned judgement and order of acquittal
passed by the learned Special Judge, POCSO Court, Jamnagar
in Special POCSO Case No.16 of 2014 on 30.01.2016, is
hereby confirmed.
12. Bail bond stands cancelled. Record and
proceedings be sent back to the concerned Trial Court
forthwith.
Sd/-
(S. V. PINTO,J)
ROHAN SONI
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