Gujarat High Court
Narendra Dhirajlal Godiya ... vs State Of Gujarat on 13 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 786 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
================================================================
Approved for Reporting Yes No
================================================================
NARENDRA DHIRAJLAL GODIYA PATEL(ABATED) & ANR.
Versus
STATE OF GUJARAT
================================================================
Appearance:
ABATED for the Appellant(s) No. 1
MS HETVI H SANCHETI(5618) for the Appellant(s) No. 2
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/08/2025
ORAL JUDGMENT
1. This Appeal had been filed by two of the accused who came to be convicted by the judgment and order dated 13.09.2002 passed by the learned Sessions Judge, Navsari in Sessions Case No.218 of 1998 under Sections 376 read with Section 114 of the Indian Penal Code (IPC). Both the accused were ordered to undergo Page 1 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined seven years of rigorous imprisonment and pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo one year of simple imprisonment.
2. During course of the present Appeal, the appellant No.1-Narendra Dhirajlal Godiya Patel died on 13.02.2017. By an order dated 25.02.2020, the Appeal against him stood abated. Thus, the Appeal is now confined to the appellant No.2 - Umeshbhai Kantibhai Maholla.
3. Learned advocate for the appellant/s Ms. Hetvi H. Sancheti submitted that the conviction would be bad in law without examination of the victim herself. The learned trial Court Judge has erred to consider the history recorded before the Doctor as an extra-judicial confession and has also failed to examine that all the accused were brought before the Doctor in police custody. Referring to the medical evidence, learned advocate Ms. Hetvi Sancheti submitted that no sperms Page 2 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined were found from the vagina of the female girl and she was found to be menstruating when she was examined by the Doctor. The serological report of the clothes of the female girl as well as the vaginal swab and saliva swab and the samples of the accused shows the blood group as AB. It is further submitted that all the 23 samples show the blood group as AB, and this itself leads to the conclusion of the sample being doubtful. It is further submitted that the deposition of Dr. Subhodh Kishorebhai Patel notices the physical condition of the girl as normal but the record also states that no live or dead sperms were found in the vagina of the victim girl and the Doctor on the X-Ray examination has stated that the age would be not considered less than 15 years and not more than 17 years and if the rape has committed then there would be every possibility of external injury. It is also submitted that the history before the Doctor of the female girl itself shows that she had undergone an abortion a year back and hence, the observation of the Page 3 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined recent vaginal tear would not be believable. It is further submitted that if the statement of the victim by the history given to the Doctor is to be believed, then the same reveals that the female girl was used to sexual intercourse repeatedly. It is also submitted that if the statement of the Doctor is to be believed, then there was no case of Section 376 of IPC and the theory of rape can be ruled out, since no case of physical force was proved.
4. Learned advocate Ms. Hetvi Sancheti referring to the evidence of Dr. Vrajlal Khanjibhai has submitted that the Doctor has not found any injury on the body of the girl including thigh or the private part; there was bleeding on account of menstruation which has been admitted by the Doctor and the Doctor has confirmed the suggestion that if there would have been rape, then extensive external injuries would be found. It is further submitted that with regard to the physical condition of the female girl, she was found to be Page 4 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined normal and no injury was found on the genital organ of the accused and the examination was done prior to a bath. Hence, there ought to have been presence of sperms, but no such thing was found nor the menstrual discharged blood of the female girl was found on the private parts of the accused. It is further submitted that the so-called extra judicial confession before the Doctor could not be believed. Nothing has come on record of any volition since the accused were in police custody. It is further submitted that the complainant and the other witnesses have also turned hostile. The learned Judge has erred by relying on the medical evidence where actually the deposition of the Doctors had not supported the case of rape and therefore, urged that this Court may exercise its discretion in favour of the appellant.
5. Countering the above arguments, learned Additional Public Prosecutor Mr. Rohankumar Raval submitted that the case under Section 376 of IPC has been totally Page 5 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined proved. It is submitted that it is not necessary that the victim female girl is always required to be examined where the medical evidence itself proves the rape. It is further submitted that the history of both the accused before the Doctor is of rape committed by them on the victim girl. It is also submitted that in absence of any conclusive proof of age, the details given by the victim herself regarding her age is required to be believed. Alternatively, it is submitted that it is a case of rape by two persons, which becomes a serious offence and thus, urged to remand back the matter exclusively for examining the deposition of the girl child.
6. On a perusal of the impugned judgment and order, it appears that the victim girl has not been examined. The witnesses who have been examined are PW1- Rajubhai Kantilal Soni, PW2-Rakeshbhai Prafulchandra Shah, PW3-Subhodh Kishorebhai Patel, PW4-Dr. Vrajlal Khanjibhai, PW5-Natubhai Dahyabhai Page 6 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined and PW6-Devsinhbhai Daulatsinh Chauhan. The documentary evidence relied upon are the panchnama of the place of offence, panchnama of the clothes, panchnama of the physical condition of the accused, complaint at Exhibit 14, Police Yadi, X-Ray Report, the medical certificate of the victim, Yadi by the Police Sub-Inspector, Chikli, CHC Case Papers of the victim and two accused, the medical certificate of CHC of victim and accused No.1 and 2, the Yadi for registration of the complaint, the panchnama of the cycle, panchnama of seizure of cycle, FSL Report, Yadi written to the Medical Officer, Chikli and Yadi sent to the Medical Officer, Navsari.
7. Both the accused had denied the evidence against them in the statement under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to in short as 'Cr.PC') and have denied of any rape. The case of the prosecution is that the accused committed the offence of rape on 02.02.1998 at about 21.00 Page 7 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined hours in Chikli Lions Garden. It was the case that both the accused in abetment had forcibly brought the victim girl aged about 14 years on a cycle and without her consent, both the accused committed the offence of rape.
8. A complaint was filed by Rajubhai Kantilal Soni who was examined as PW1. The witness was Deputy Sarpanch. At Chikli Government Hospital in the year 1998 he was having the management of Lion's Garden, which was in the Chikli Gram Panchayat. As per the witness, the garden was having a compound wall on four sides, the work of compound wall was given to Contractor-Nattubhai about 10 days prior to the incident. On date of the incident at about 9.00- 9.30 pm, PW1-Rajubhai Kantilal Soni and the Contractor-Nattubhai were visiting the garden to see the progress of the work and when they were in the garden, they heard the sound of crying of a girl and when they reached there, they did not see anyone Page 8 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined alongwith the girl, they found that the girl was aged 15 years. They enquired about the condition of the girl. There was a cycle outside the garden, they took the girl to the police station. The witness stated that they had not taken any two persons alongwith the girl to the police station. Witness did not identify accused in the Court. The witness identified his signature at Exhibit 14. The witness was declared hostile and when he was confronted with the complaint, he denied the same.
9. Since PW1-Rajubhai Kantilal Soni (the complainant) has not supported the complaint, the genuineness of the complaint becomes doubtful. The PW1 has not identified the accused, the PW1 has even denied of taking the accused alongwith the female girl to the police station and he had not even seen the accused alongwith the girl.
Page 9 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025
NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined
10. PW2-Rakeshbhai Prafulchandra Shah was the person accompanying PW1-Rajubhai Kantilal Soni while visiting the garden with the Contractor. On hearing the voice of the girl, they had gone near the girl. The witness also said that the girl appeared to be 15 years old. He has also denied of apprehending any persons from the place. The witness has not supported the prosecution case and was also declared hostile.
11. PW3-Dr. Subhodh Kishorebhai Patel was the Medical Officer at Civil Hospital, Navsari on 03.12.1998. The victim was brought before him with a police yadi. The victim was sent by the Medical Officer for gynecologist and radiologist opinion. The history given by the victim was stated by PW3, where she told the Doctor that two persons on 02.12.1998 in the evening had committed rape on her. The Doctor had also opined about the Report of the Gynecologist- Dr. Niranjan Shah. The fact was was noted that the victim girl was menstruating during the examination. Her physical Page 10 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined condition was found developed. The Doctor had found one ulcer in the vagina and one ulcer below the labia minor and another ulcer at perineum area.
12. Exhibit 19 the history suggests that the patient was well oriented. The victim girl had stated that she was used to sexual intercourse repeatedly and one abortion had taken place a year ago. The urethra and vaginal swab were taken for sperm examination and it has been noted in Exhibit 19 that no sperms were found. The opinion of the radiologist was noted and the conclusion was that the age of the female is more than 15 years and less than 17 years. The PW3-Dr. Subhodh Kishorebhai Patel in the cross examination said that without the consent of the female girl, there would be a possibility of internal and external injury and if rape has been committed, on the girl, then the possibility of injury would be there. Rather this witness had not observed any sperms on the female girl.
Page 11 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025
NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined
13. The case papers of the female girl noted that no sperms were seen. It has been recorded that no opinion can be given about rape.
14. Dr. Vrajlal Khanjibhai was examined as PW4. It was before him, the victim as well as the accused were brought for physical examination. It appears that in the case papers history was recorded by the Doctor and much reliance has been placed on the history before this Doctor of the accused. Further, in the same deposition, it could be noted that examination done was under a police yadi and certainly, the accused would have been brought before this PW4 under police custody. The examination of the Doctor of the victim girl noticed no injury on her physical self. The Doctor has also observed about the menstrual discharge from the vagina and has not found any injury on the thigh or the vagina area. The Doctor has noted of pain in the vagina and it was on the lower Page 12 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined part of the vagina found a tear.. The history of the victim before the Doctor was of rape being committed on her on 02.12.1998 at about 9.00 pm in the Garden at Chikli. Both the accused were examined by the Doctor. The history given though was of rape by the accused before the Doctor but on examination of genital organ of the accused, nothing objectionable was found. No blood stains or the presence of sperms was noted nor any injury were found on the body of the accused. The Doctor admitted that the blood in the vagina of the victim was because of the menstrual discharge.
15. On analysis of the medical evidence which has come on record, it is clear that the female girl was menstruating at the time of her examination. Though vaginal swabs and saliva swabs were taken for examination, no injury marks of any forcible sexual intercourse were observed on any parts of the body of the female girl nor on the accused. The serological Page 13 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined report also does not clarify the examination of the sample that was taken with regard to the blood, urethera swab, vaginal swab as well as the clothes of the victim and that of the accused. The blood group of all the samples was noted as AB.
16. Under these circumstances, when the medical evidence becomes weak the evidence of the victim girl would become very important. The complainant does not support his own complaint. The other witnesses who were alongwith the complainant do not corroborate the narration given in the complaint and the victim herself has not been examined. The radiological report refers to the age of the girl as above 15 years and less than 17 years. In absence of evidence of the victim girl herself, the conviction of the appellant is not well founded with the evidence on record. The medical evidence also does not correlate with the offence of rape. The witnesses have turned hostile. The victim girl has not been examined. The Page 14 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025 NEUTRAL CITATION R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025 undefined forcible sexual act has not been proved on record by way of medical evidence. The history before the Doctor as found to be extra-judicial confession cannot be believed since the accused were in police custody when they were examined by the Doctor. The conviction is perverse and is contrary to the evidence on record.
17. As a consequence, the appeal qua the appellant No.2- Umeshbhai Kantibhai Rathod is allowed. The appeal of the appellant No.1-Narendra Dhirajlal Godiya Patel stood abated. The judgment of conviction and sentence dated 13.09.2002 by the learned Additional Sessions Judge, Navsari in Sessions Case No.218 of 1998 is quashed and set aside. The appellant No.2 is acquitted of all the charges levelled against him. Bail and bail bond stands discharged. Record and proceedings be sent to the concerned Trial Court forthwith.
Sd/-
(GITA GOPI, J) CAROLINE / DB # 6 Page 15 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:59:59 IST 2025