Gujarat High Court
The State Of Gujarat vs Kana Naran Koli on 2 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2218 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
KANA NARAN KOLI & ORS.
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Appearance:
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR RC KAKKAD(389) for the Opponent(s)/Respondent(s) No. 1,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The State has assailed the order of acquittal passed by the Ld. Additional Sessions Judge, 2 nd Fast Track Judge, Veraval dated 09.04.2004 in Sessions Case No. 98/1999, whereby, the Org. Accused persons came to be acquitted for the offence punishable under Section 363, 366, 376 and 114 of the Indian Penal Code.
2. At the outset, it is required to be noted that the Page 1 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025 NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined Accused No. 3 - Respondent No. 3 herein namely Veera Haja Ahir has expired on 15.12.2021 and the report to that effect is submitted by the Ld. Advocate for the Respondent - Org. Accused. Hence, Appeal qua Respondent No. 3 has been abated.
3. Facts in the nutshell to decide the Appeal are as follows:-
3.1 That the Complaint came to be filed by Naranbhai Gavaliya who is the uncle of victim interaila contending that victim was residing with her parents at Gorakhmadi Village. That on the night of the incident, i.e. on 13.11.1991 at about 8:00 p.m., the present accused no.1 kidnapped the victim from the lawful guardianship of the father of the victim. The accused no.1 took victim by coxing and cajoling her and also compelled her to marry with him. It is further alleged that the accused no. 1 also had forcible physical relation with the victim under the pretext of marriage and against her will and wish. It is further alleged that the accused no. 1 took the victim in the car of accused no.2 who made arrangement for residing there. Thus, the accused Nos. 2 and 3 are facing the trial for abetting the offence. The complainant came to be registered with Sutrapada Police bearing CR - I - 93/1991 and after investigation, charge sheet was presented before the concerned Judicial Magistrate, Veraval which was registered bearing Criminal Case No.863 of 1992. Since, the case of Sessions triable, the Ld. Magistrate, Veraval committed the said case to the Sessions Court. Ld. Sessions Judge, vide Exh. 1 framed charges against Page 2 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025 NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined the Accused on 21.01.2004. Plea came to be recorded vide Exh. 2 to 4 respectively qua Respondent No. 1 to 3 who denied the charges and prayed for trial.
To bring home charges, the prosecution relied upon the following witnesses and documentary evidences.
Sr Particulars Exh.
No.
1 Narayanbhai Dahyabhai Gavadiya 16
2 Org. FIR 17
3 Victim 18
4 Bhimabhai Kadabhai Gavadiya 19
5 Kadviben Ramabhai Dahyabhai 20
6 Rupaiben Ramabhai Dahyabhai 21
7 Sejuben Bhimabhai Gavadiya 22
8 Panchnama regarding physical condition of victim 24
9 Pachanama of mudamal which is in the box sent 14
by the medical officer Veraval.
10 Panchnama regarding detention of Accused No. 1 26
11 Panchnama regarding detention of Accused No. 1 27
and 3
12 Panchnama of place of incident. 28
13 Medical Officer's Letter (Note) dated 15.11.1991 29
forwarded to the PSI, Sutrapada with regard to forwarding eight piece mudamal.
14 Dispatch note 3015 Receipt forwarded by the FSL, Junagadh to PSI 31 Sutrapada 16 Letter of Municipal Hospital regarding medical 32 Page 3 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025 NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined checkup of Accused No. 1 17 Report forwarded by the FSL, Junagadh to PSI 33,34 Sutrapada 18 Result of Sirology testing of FSL, Junagadh 35 19 Gajananbhai Lakshamanbhai Pathak 37 20 Copy of FIR 38 21 Copy of Station Diary 39 22 Vajsibhai Ramshibhai Kandoriya 41 23 Birth Certificate 42 24 Maganbhai Ambabhai Kaneriya 44 25 Copy of Birth and Death Registrar 45 3.2 The prosecution vide Exh. 46 tendered purisish closing their evidence. Thereafter, further statement of the Accused under Section 313 of the CRPC came to be recorded. After hearing the Ld. Advocate for the respective parties, the Ld. Sessions Court has passed the impugned judgment acquitting the accused of the charges. Hence, the present Appeal.
4. Ld. Additional Public Prosecutor Ms. Monali Bhatt, would contend that the Trial Judge has committed serious error in not believing the deposition of the victim, more particularly, the factum of accused No. 1 and victim having brought at Village Gorakhmadhi by the Complainant Narayanbhai under such circumstances, coupled with the fact that they were about to get marry and were caught near the Court. The Court has committed grave error in not convicting the present Accused. That the Trial Court has given much weightage to the birth certificate vide Exh. 42, Page 4 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025 NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined where some scoring is found and hence, despite the deposition fo the mother of the victim and victim herself which proves that on the date of incident, she was minor, the Trial Court ought not to have acquitted the accused under Section 363 and 366 of the IPC. Lastly, it is argued that the Trial Court has not appreciated oral as well as documentary evidence in its true perspective and hence, argued to allow the Appeal.
5. At the outset, it would be profitable to refer the judgment of the Hon'ble Supreme Court in the case of Constable 907 Surendra Singh vs State Of Uttarakhand reported in (2025) 2 SCR 239 wherein it is held that:-
"11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp.482-83, para
29) 6 (2024) 8 SCC 149
29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words :(Chandrappa case [Chandrappa v.Page 5 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025
NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined State of Karnataka, (2007) 4 SCC 415 :(2007) 2 SCC (Cri) 325] , SCC p.432, para 42)
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 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 emphasise 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.
Page 6 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined "40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the Ld. Trial Page 7 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025 NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading / omission to consider material evidence on record and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
6. In view of the afore-stated principles, this Court now on the anvil of the documentary as well as oral evidence has to decide whether the case is made out for allowing the appeal or not?
7. Heard Ld. Additional Public Prosecutor for the State. We have also gone through the impugned judgment and order of acquittal and we have also taken into consideration to the oral evidence of Narayanbhai Dahyabhai Gavadiya PW 1 at Exh. 16, Victim at Exh. 18, Bhimabhai Kadabhai Kamadiya at Exh. 19, Kadviben Ramabhai Dahyabhai at Exh. 20, Rupaiben Ramabhai Dahyabhai at Exh. 21 and Sejuben Bhimabhai Gavadiya at Exh. 22 and that Gajananbhai Lakshmanbhai Pathak at Exh. 37 and Investigating Officer Mr. Vajsibhai Ramshibhai Kandoriya at Exh. 41.
8 If the entire testimony of the victim at Exhibit 18 is taken into consideration, she herself in Examination-
in-Chief stated that she was 18 years of age when the incident took place and has stick to her version, which is contrary to the statement given to the investigating officer under Section 161 of the CRPC, which would be evident from the cross-examination of the victim at para 3 at Exh 18. To prove the material contradiction, learned Advocate for the accused before the trial court Page 8 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025 NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined has also cross-examined Mr. Vajsibhai Ramshibhai Kandoriya at Exh. 41, whereby, material contradiction with regards to the love relationship between the accused no.1 and the victim and consensual relationship is coming on record. Thus, having found that the deposition of the victim is not of sterling quality, coupled with the fact that the trial court has given a detailed reasoning in not believing Exhibit 42 birth certificate and the Birth Register, wherein, there is scoring without any counter-signature, which creates serious doubt with regard to the age of the victim at the time of incident. Assuming for the moment and considering Exhibit 42 Birth Certificate as it is, the age of victim at the time of incident would be 17, under such circumstances, the law then it was, that any consensual relationship below the age of 16 would amount to rape would not be attracted in the facts of the present case. More particularly, when there are consensual relationships after the breaking of relationship with the sister of the victim, and they voluntarily had traveled to Junagadh to get their marriage registered, however, they came to be caught by the complainant and hence, the present case against the accused.
9. it is also a settled legal position that in aquittal appeals, the Appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of the State of Karnataka Vs. Hemareddy, AIR 1981, SC 1417, wherein it is held as under:-
Page 9 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025NEUTRAL CITATION R/CR.A/2218/2004 JUDGMENT DATED: 02/08/2025 undefined "...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967) 1 SCR 93 : (AIR 1967 SC 1124) that it is not the duty fo the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the Trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
10. Under such circumstances, we do not find a fit case to exercise power under Section 378 of the CRPC to allow this appeal, since the Trial Code has given a well-reasoned order and to which we are in concurrence. Hence, the appeal of the State is hereby rejected. The judgment of acquittal passed by the Ld. Session Judge is upheld. Bail bond of the accused are canceled. R&P to be sent to the concerned Court forthwith.
(GITA GOPI,J) (P. M. RAVAL, J) MMP Page 10 of 10 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:09:31 IST 2025