Gujarat High Court
Aarif Rasulbhai Mansuri Pinjara ... vs State Of Gujarat on 11 August, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1054 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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AARIF RASULBHAI MANSURI PINJARA (MUSALMAN)
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
MR LB DABHI APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 11/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. The correctness of the judgment and order of sentence dated 31.07.2014 passed by the learned Additional Sessions Judge, Dahod is questioned in this appeal. By the impugned judgment, the learned Additional Sessions Judge, Dahod convicted and sentenced the appellant - accused Aarif Mansuri, under Sections 363, 366, and 376 of the Indian Penal Code and under Sections 3(1)(xi), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Page 1 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined Act, 1989, and sentenced to suffer the imprisonment as per the below scheduled:
Conviction Punishment Fine In default of
under Section fine
363 of IPC RI for 5 Rs.10,000 SI for 6
years months
366 of IPC RI for 7 Rs.20,000 SI for 1 year
years
376 of IPC r/w Life Rs.1,00,00 SI for 1 year
3(1)(xi) and 3(2) Imprisonmen 0
(v) of Atrocity t
Act
2. The facts, leading to the present appeal are as follows:
(1) An FIR came to be registered with Devghad Bariya Police Station, Dahod being C.R.No.195 of 2012, at the behest of PW:2 Somabhai Vankar, inter alia, alleging that the appellant accused being his tenant, had kidnapped his minor daughter aged about 14 years and 6 months, with an intention to illicit intercourse, when she along with her friend PW:5, were on the way to attend the high school.
According to the case of the prosecution, on 05.11.2012 at about 10:00 a.m., the victim was forced to sit in a rickshaw by holding her hand and was taken by the accused in the rickshaw from Village Sagarama and then, accused along with the victim proceeded to Ahmedabad by public transport. After arrival at Ahmedabad, the victim taken to the Sunny Hotel nearby the bus-stand where during the night hours, the appellant forcefully rapped upon her for multiple times. PW:2 the father and family members worried about the victim Page 2 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined as she did not return back till evening. He contacted the wife of the appellant, but she was clueless and the mobile of the appellant was found switch-off.
(2) The Dahod Police transmitted the information about the incident to the Police Station, across the State and based on the said input, the Ahmedabad Police raided the hotel where the appellant caught red- handed along with the victim. The accused then brought to the Dahod Police Station. On the basis of FIR, he was arrested. The I.O. PW:15 being a Dy.S.P. was entrusted to the investigation of the case. During the investigation, he sent the victim for medical examination, seized her clothes, sent the accused for medical examination and also seized her clothes, the panchnama which had been drawn by the Ahmedabad Police at the hotel kept with case papers, recorded the statements of the witnesses, collected the evidence of age, sent the seized articles for chemical analysis, obtained the report of FSL, and thereafter, the chargesheet came to be filed against the accused for the offences, as referred above. The Jurisdictional Magistrate committed the case to the Court of Sessions.
3. The Sessions Court framed the charge against the appellant accused upon pleaded not guilty by the accused.
4. In order to prove the charge, the prosecution has examined as many as 15 witnesses and exhibited 20 documents:
Page 3 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined Oral evidence PW 1 - Exh.6 Shaileshkumar Vinodbhai Parmar, Medical Officer PW 2 - Exh.13 Somabhai Danabhai Vankar, Complainant PW 3 - Exh.17 Neetaben Somabhai Vankar PW 4 - Exh.20 Mathursinh Chandrasinh Bariya PW 5 - Exh.23 Savitaben Surmabhai Rathva PW 6 - Exh.24 Himatbhai Khimabhai Rathva, Panch witness PW 7 - Exh.34 Navabhai Jeevabhai Kharadi, PSO PW 8 - Exh.37 Prakashbhai Babaji Marwadi PW 9-Exh.39 Pradeepkumar Jagdishbhai Chakravarti, Panch witness PW10- Exh.40 Bakabhai Manabhai Rathva, Panch witness PW11- Exh.42 Manabhai Remabhai Rathva, Panch witness PW12- Exh.43 Manabhai Ramabhai Vankar, Panch witness PW13- Exh.46 Jayeshbhai Govindbhai Vaghela PW14- Exh.47 Jagdish Sheshgiri Nayak PW15- Exh.51 Madankumar Jayantilal Pancholi Documentary evidence Exh.7 Medical Examination report of victim Exh.8 Medical certificate of victim Exh.9 Medical examination of accused Yadi Exh.10 Medical examination report of accused Exh.15 Caste certificate of accused Exh.16 Complaint Exh.21 Copy of entry from general register of school Exh.22 Victim's Birth/Bonafide certificate Exh.25 Panchnama of place of offence Exh.35 Copy of Station diary Exh.38 Panchnama Exh.41 Panchnama of Accused state of body and clothes recovered Exh.44 Panchnama of clothes recovered of victim Exh.52 Panchnama of Hotel room where offence took place Exh.53 Ticket of President Travels from Godhra to Ahmedabad Page 4 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined Exh.54 Hotel Sunny Cash memo bill Exh.55 Hotel Sunny License xerox Exh.56 List sent to FSL Vadodara letter Exh.57 Analysis report of FSL Vadodara Exh.59 Closure of Evidence
5. After closure of the prosecution evidence, the appellant was questioned under Section 313 of the Cr.P.C. to which he stated that he has been falsely implicated in the offence and his defence is denial.
6. Though opportunity was extended, no oral evidence being adduced by the appellant accused.
7. After hearing the parties and upon appreciation of the evidence, the Trial Court held and observed that the prosecution has successfully proved the charges against the appellant beyond reasonable doubt and accordingly, the Court found guilty and convicted him for the offences, as referred above. The Trial Court also observed that the accused was having knowledge that the victim belongs to SCST, despite of this, he committed an offence of rape, as a result, the accused has been sentenced to suffer life imprisonment as provided under the provisions of Atrocities Act as well as under Section 376 of the IPC.
8. Being aggrieved by the judgment of conviction and order of sentence, the appellant is before this Court with the present appeal.
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9. Mr. Maulik Soni, learned counsel appearing for and on behalf of the convict, while assailing the impugned judgment of conviction and order of sentence, submitted that, the prosecution miserably failed to prove the charge of kidnapping and rape against the accused; the burden is on the prosecution to prove the age of the victim; according to prosecution case, the age of the victim was 14 years and 6 months and in order to prove the said age, the prosecution mainly relied on the school records, wherein, the birth dated 02.06.1998 was recorded in the general register of the school; that the father of the victim does not have any knowledge about date of birth and he had admitted that, while admitting in the school, he did not disclose the date of birth before the school authority nor filled up guardian form mentioning the said date of birth. In such circumstances, the prosecution failed to prove the evidentiary value of entries in the school register under Section 35 of the Evidence Act and in absence of source of date of birth, the findings of the trial court holding that the victim was minor on the date of occurrence is contrary to law, as there is nothing on record to show that, on what basis the date of birth of the victim was recorded in the school register.
10. The next contention raised by Mr. Soni is that, when the age is not proved, then, the victim deemed to be believed major at the time of occurrence. The victim throughout did not make any hue and cry nor, tried to escape from the clutches of the accused, as from village:
Sagarama to Ahmedabad, there was an opportunity to the victim to call for any assistance from any one, but she kept quite and remained Page 6 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined in the hotel, without any resistance, which would show that there was a consent and in that view of the matter, the ingredients of kidnapping and rape are not satisfied.
11. The third contention raised is that, the learned trial Court went wrong in convicting the appellant under Section 3 (2)(v) of the Atrocity Act. It is evident that, there is nothing to suggest that the offence was committed by the appellant only because the deceased belonged to scheduled caste and therefore, the conviction and sentence under the provision of Atrocity Act is not sustainable.
12. In such circumstances as referred to above, learned counsel Mr. Soni, has submitted that the prosecution has failed to prove his case beyond reasonable doubt and there being merits in this appeal, it may be allowed and further prayed that the order of conviction and sentence be set aside and the appellant may be acquitted of all the charges.
13. Mr. L.B. Dabhi, learned State counsel would support the impugned judgment and submitted that, the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and findings of conviction recorded by the trial Court, are based on evidence on record and as such, no interference would require and therefore, he prays that there being on merit in appeal and same may be dismissed.
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14. Before dealing with the rival contentions, it would be useful to analysis the evidence of some of the relevant witnesses.
(a) Dr. Shailesh Parmar (PW-1), being a Medical Officer of Government Hospital, Devgad Baria, had examined the victim and accused. The doctor in his testimony stated that on examination of the victim, he found that her hymen was torn and blood was seen in the vagina. The victim was referred to radiological department for determination of the age and according to report, her radiological age was between 14 to 18. On examination of the body of the accused, nothing incriminating found. The doctor took necessary samples for chemical analysis like blood, saliva, and semen.
(b) Somabhai Danabhai Vankar (PW-2), who being father and complainant of the case, has stated on oath that on 05.11.2012, her daughter was kidnapped and sexually abused by the accused, who knew him because he rented his house to him. The witness has further stated that on the day of incident her daughter and her friend proceeded from his home towards their school and till evening, the victim did not return back and after inquiry, he came to know that, the accused was not found at his home and his mobile phone was switched off. In such circumstances, the witness has stated that in the late night he went to Devgad Baria Police Station and lodged an FIR. The witness has further stated that, at the time of incident, the age of her daughter was 14 years and the proof of age he has produced before the police. In the Page 8 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined cross-examination, on the issue of age, he has stated that at the time of getting admission in the school, he had not submitted form mentioning therein the birth date of the victim. The witness on his voluntarily stated that, he obtained the proof of age from the primary school where the victim had studied and given it to the high school for 10th standard admission. The witness has denied to the suggestion that, the accused has not kidnapped her daughter and intentionally he is hiding the age of the victim and that is why he has not produced the certificate of revenue officer to show the age of the victim.
(c) Mathursinh Baria (PW-4), being a teacher of the high school namely S.S. Kadakia, has stated that, on 13.06.2011, the victim was admitted in 9th standard and entry for admission being made in the general register of admission maintained by the school. The witness has further stated that the name of the victim being registered at Sr. No. 3195 and date of birth being mentioned that is that 02.06.1998 and on that basis, he has produced the bonafide certificate, which he is producing at Exh. 21 and 22. In the cross- examination, he admitted that, in order to verify the birth date of the victim, the inquiry from the primary school where the victim had studied, being not conducted by the school. He also admitted that, so far entry is concerned, he does not have any personal knowledge.
(d) The prosecutrix (PW-3): The victim in her chief examination has stated that, at the time of incident, she was student of 10 th standard of High School S. N. Kadakia, which is at the distance of 2 km of Page 9 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined her village: Sagarama. She has further stated that, she knew the accused as he was tenant of her house. She has also stated that on 05.11.2012, he along with her friend Rathva Savitaben PW-5, proceeded to attend the school and when they were on road, the accused came in the rickshaw and forced her to sit in the rickshaw and taken her to Devgad Baria and when she asked the accused where he is taken to her, then he replied that, we are going for ride. The victim has further stated that she was taken her from Devgad Baria to Piplod and then Godhra and from Godhra, by bus, they came to Ahmedabad and from Ahmedabad bus stand, she was taken to a nearby hotel. The victim has further stated that, in the hotel, she had been raped and sexually abused. The victim has further stated that at about 3-00 am midnight, the Ahmedabad Police came to the hotel room and on inquiry, the accused stated to the police that, she is my nephew. The victim has stated that, the Ahmedabad Police took both of them at the police station and thereafter, they brought by the Dahod Police to Devgad Baria. The victim has further stated that the police recorded her statement and sent her for medical examination. So far as date of birth is concerned, she has stated that her date of birth is 02.06.1998. She also identified the accused in the court and her cloths. In the cross-examination, she has stated that she does not know the exact date of her admission in the primary school. The question was put to her how she came to know about her birth date and she gave reply that, her date of birth has been written in the book maintained by her, which presently lying in the cupboard at home. She had denied to the suggestion that, on the date of Page 10 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined birth she is telling lie. She has admitted that, during the travel period i.e. from her village to Ahmedabad, she did not raise any resistance nor sought any help from any one. She also admits that during stay at Ahmedabad, she did not have made any complaint either to the rickshaw driver or any one against the accused.
(e) Savitaben Rathva (PW-5): The purpose of the prosecution to examine the said witness is to prove the fact that at the time of alleged offence of kidnapping, she was with the victim, going towards school. The witness has supported the prosecution on this aspect and has stated that on 05.11.2012 at about 10-00 o'clock, she along with victim proceeded to attend their school and when they about to reach the school, the victim was forcefully asked to sit in the rickshaw by the accused. The witness has also identified the accused in the court.
(f) Jagdish Naik (PW-14): The witness was posted as Circle Police Inspector at Devgad Baria Police Station and after registration of the offence, he proceeded to investigate the case. In his testimony, witness has stated that during the investigation, he arrested the accused, recorded the statement of the victim and seized and recovered her cloths and thereafter, the investigation was entrusted to the Deputy Superintendent of Police, Limkheda.
(g) Madankumar Pancholi (PW-15): The witness being a Deputy Superintendent of Police, Limkheda, was in-charge of the investigation. The witness has stated that during the investigation, he took visit the hotel, where the incident took place and drew the Page 11 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined panchnama of place of incident, obtained the traveling tickets of the accused and victim from the traveler namely President Travels, seized and recovered the evidence of hotel at Ahmedabad, collected the evidence with respect to age of the victim, sent the seized articles to FSL and at the end of investigation, he filed the chargesheet. In the cross-examination, the witness has admitted that, he could not find the certificate of revenue officer with respect to date of birth of the victim. The witness has denied that, the accused has been falsely implicated in the offence and he has not committed any crime.
15. We have heard at length the learned counsel Mr. Maulik Soni and Mr. L.B. Dabhi, learned State Counsel, perused the case records and the findings of conviction. The point falling for our consideration is whether the conviction of the appellant accused under Sections 363, 366, 376 of the IPC and Sections 3(1)(xi) with Section 3(2)(v) of the Atrocity Act is sustainable?
16. It is the submission of the defence that the age of the victim has not been proved by admissible and acceptable evidence. In the facts of the present case, the school record is being considered by the trial Court.
17. In the present case, the prosecution in support of their case adduced two piece of evidence namely school admission register Exh. 21 and bonafide certificate issued by school authority, mentioning therein the date of birth of the victim - Exh. 22. PW-2 father of the victim Page 12 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined Somabhai Vankar admits that, at the time of admitting the victim in the primary school, he did not have filled up a guardian form, nor disclose a date of birth. In his deposition, the witness fairly admits that he being illiterate person, does not know the date of birth. PW-3 victim on the basis of date of birth mentioned in the bonafide certificate stated that her date of birth is 02.06.1998. PW-4 Mayursinh Baria, is a production witness and does not have any knowledge about the entry of date of birth recorded in the school register. It is not in dispute that, the victim had studied upto 1 to 7 in a primary school of the village and thereafter, she got admission in the S.N. Kadakia High School, Devgad Baria. At the time of admission at the High School, neither parents nor the victim have produced any evidence to show the date of birth. The I.O could not obtain the evidence of age from the revenue officer and failed to throw any light with regard to source of date of birth i.e. on what basis the Primary School as well as the High Court recorded the date of birth.
18. In nutshell it is evident that, except school records, nothing brought on record by the prosecution to prove the age of the victim. In other words, except the testimony of the PW-4 Mathursinh Baria - the teacher of High School and the admission register Exh. 21, there is no material to establish that the date 02.06.1998 is the date of birth of the victim. It is settled legal position of law that an entry relating to date of birth made in school register is relevant and admissible under Section 35 of the Evidence Act, but the entry regarding the age of the person in a school register is of no much evidentiary value to prove the age of the person in the absence of the material on Page 13 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined which, the age was recorded. Section 35 of the Evidence Act provides that the entry made in the official record by the official or person authorized in performance of official duty is admissible in evidence. A profitable reference in this context can be made to a judgment of the Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1797, wherein, the Election Petition arose on account of alleged improper rejection of nomination papers to the election of the Legislative Assembly as the candidates held to be below 25 years of age. The entries made in the school register were pressed into service to demonstrate the improper rejection of the nomination papers. In the backdrop of the aforesaid fact, the Supreme Court enunciated the legal position in the following words :
"15....... Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the Page 14 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.
17 ......The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value.
19. A useful reference can also be made to a judgment of Supreme Court in the case of Madmohansinh Vs. Rajnikant, (2010) 9 SCC 209, wherein, the Supreme Court has held that the authenticity of the entries would depend upon whose information such entries stood recorded. In para-20 of the judgment, it has been held as under:
"20. So far as the entries made in the official record by an official or person authorized in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Page 15 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.
20. We have also perused the evidence of ossification test determining the age of the victim, which opined that, the age of the victim may be between 15 to 18 years. However, the evidentiary value of the said report required to be kept in mind. The Supreme Court in numerous judgments on the aspect of determination of age, held and observed that the date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.
21. In light of the settled proposition of law and applying the same to the facts of the present case, we are of the considered opinion that, the prosecution failed to prove the authenticity of the entry of date of birth recorded by the school authority and the admission register Exh. 21 failed to satisfy the requirement of Section 35 of the Evidence Act. The reason of our conclusion are that, (i) the school where the victim had studied, is not the government school, (ii) no reliable material available on record to show that the date of birth recorded in the school register on the basis of statement of any responsible person including the parents, (iii) that the school records from the first school attended by the victim which are primary and Page 16 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined significant piece of evidence for proving the victim's age, has not been produced and / or brought on record by the prosecution, (iv) there is no material or evidence on which the date of birth recorded by the high school authority i.e. PW-4. In such circumstances, the date of birth recorded in the school admission register cannot be said to be admissible and conclusive in nature to prove the age of the victim and therefore, the prosecution miserably failed to prove that the victim at relevant time was below age of 16.
22 The next contention raised is that when the age if the victim is not proved and having regard to her conduct, the trial Court could not have convicted the accused for the offence of kidnapping and rape, as defined under Sections 363, 366 and 376. We have carefully examined the evidence on record. The victim was in the company of accused for one day and travelled with him at different places and lastly they stayed in the hotel at Ahmedabad. However, fact remains that, the victim has stated on oath that, she had been kidnapped forcefully and sexually abused against her will and wish. In such circumstances, the ingredients of the offence of kidnapping and seduced to illicit intercourse (as defined under Sections 361 and 366 of the IPC) are not satisfied and to that extent, the prosecution failed to prove the said charges beyond reasonable doubt against the accused. So far charge of rape as defined under Section 375 is concerned, the victim's evidence is clear, cogent and creditworthy and inspires confidence that, she had been sexually abused against her will and wish. We do not find any circumstances on the record of the case that, the victim at the instance of her father, falsely Page 17 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined involved the accused herein. The appellant was tenant of the PW-2 and having a marital status, he took the victim at Ahmedabad, where against her will and wish, she abused sexually by the accused. Thus the theory of consent having regard to the evidence of victim and attending circumstances, is not acceptable and believable. In that view of the matter, we have no hesitation to held that the prosecution succeeds in proving the charge of rape against the appellant beyond reasonable doubt.
23. The next question is raised is whether the conviction under Section 3(1)(xi) and 3(2)(v) of the Atrocity Act can be sustained or not.
24. It is no doubt true that, the victim belongs to scheduled caste. Prior to the incident, the accused and the father of the victim were knowing each other because, the house in which the accused resided, was belonged to PW-2. In such circumstances, from the evidence and material on record, there is nothing to suggest that the offence was committed by the appellant only because the victim belonged to a scheduled caste. In this context, it is apt to refer the judgment of the Supreme Court in the case of Dinesh @ Buddha Vs. State of Rajasthan (2006) 3 SCC 771, wherein, the Supreme Court held as under:
"Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has Page 18 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine."
25. In the facts of the present case, in order to attract the offence under Section 3(2)(v)of the Atrocity Act, it is required to be proved that the offence must have been committed against the person on the ground that such person is a member of scheduled caste and scheduled tribe. In the present case, there is no evidence to show that the offence was committed only on the ground that the victim was member of scheduled caste and therefore, in our opinion the conviction and sentence of the accused under Section 3(1)(xi), 3(2)
(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, is not sustainable.
26. For the reasons and discussions and analysis made hereinabove, the conviction and sentence of the appellant under Section 3(1)(xi) and 3(2)(v) of the SCST Act is set aside. The conviction and sentence under Section 363 and 366 of the IPC is also set aside and the accused is acquitted of the said charges. The jail remarks shows that the appellant has undergone 11 years and 7 months of his jail term. The interest of justice would be met if the sentence of the appellant Page 19 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025 NEUTRAL CITATION R/CR.A/1054/2014 JUDGMENT DATED: 11/08/2025 undefined under Section 376 is modified and is awarded sentence of period already undergone along with the fine as imposed by the trial Court.
27. In the result, the appeal is allowed in part in the aforesaid terms and accordingly, stands disposed of. The appellant may be released forthwith if he is not wanted in any other criminal case. R&P, if any, be sent back to the trial Court forthwith.
(ILESH J. VORA,J) (P. M. RAVAL, J) P.S. JOSHI Page 20 of 20 Uploaded by P.S. JOSHI(HC00177) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:41:59 IST 2025