Gujarat High Court
Gitaben W/O Tarunkumar Panchal vs State Of Gujarat on 20 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1806 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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Approved for Reporting Yes No
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GITABEN W/O TARUNKUMAR PANCHAL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MUKUNDKUMAR A THAKKAR(9034) for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the appellant under Section-372 of the Code of Criminal Procedure, 1973 (Section 413 of Bharatiya Nagrik Suraksha Sanhita, 2023) against the judgment and order of acquittal Page 1 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined dated 20.06.2024 passed by the 2nd Additional Sessions Judge, Halol District-Panchmahals in Session case no.34 of 2022. By the impugned judgment and order, the Sessions Court acquitted the respondent-accused for offence under Section 376 of Indian Penal Code.
2. By order dated 27.08.2024, the Record and proceedings was called for and the matter taken up for final hearing at admission stage at the request of the learned Advocate for the appellant.
3. The case pertains to an incident that occurred on 26 th January 2021 at around 9:15 a.m., when the respondent-accused entered the house of the complainant under the pretext of meeting her maid, Chandrika. Once inside, the respondent forcibly committed rape upon the complainant against her will, despite her resistance. The complainant's husband arrived during the incident, locked the respondent inside the house and called neighbors. The incident led to the registration of an FIR being C.R. No.11207055210035 of 2021, registered with Rajgadh Police Station, Panchmahal District, for offenses under Section 376 of the Indian Penal Code, 1860.
3.1 The Charge, Exh-4 came to be framed against the respondent- accused, the gist of charge is that the charge against the accused alleges that, On 26.01.2021, at around 9:15 a.m. in Paroli village, the accused went to the complainant's house, stating that he wanted to meet maid of victim, Chandrika, then entered the house and forcibly raped the complainant against her will, thereby committed an offense punishable under Section 376 of the Indian Penal Code.
4. Learned advocate for the appellant has submitted that the appellant Page 2 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined is the original complainant in FIR being C.R. No.11207055210035 of 2021, registered with Rajgadh Police Station, Panchmahal District, for offenses under Section 376 of the Indian Penal Code, 1860. The impugned judgment and order dated 20.06.2024, passed by the Learned 2nd Additional Sessions Judge, Panchmahal at Halol in Sessions Case No. 34 of 2022, acquitted the respondent-accused. It is respectfully submitted that the said judgment is erroneous and has resulted in a gross miscarriage of justice, necessitating the present appeal.
4.1 It is submitted that PW-1, the appellant-complainant, was subjected to sexual assault by the respondent-accused on 26 th January 2021, at around 9:15 a.m., when the respondent-accused entered victim's house under the pretext of meeting her maid, Chandrika. Despite her resistance, the respondent forcibly committed the act of rape. The incident was interrupted when the complainant's husband arrived, locked the respondent inside the house, and called neighbors at the place of the incident. The prosecution relied on the complainant's testimony, corroborative witnesses and medical evidence to substantiate the charges against the respondent.
4.2 It is submitted that the learned Trial Court acquitted the respondent by erroneously concluding that the prosecution had failed to prove its case beyond reasonable doubt. The judgment disregarded material evidence, including the complainant's consistent and credible testimony and the medical reports corroborating the allegations. The Trial Court further placed undue emphasis on minor discrepancies, which are natural in such cases and granted the benefit of doubt to the accused without valid justification.
Page 3 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined 4.3 It is respectfully submitted that the prosecution successfully established the guilt of the respondent beyond reasonable doubt. The testimony of the complainant was consistent, coherent, and reliable, and the minor inconsistencies cited by the Trial Court do not undermine her overall credibility. PW-2, The complainant's husband, and other witnesses corroborated the sequence of events, confirming the presence of the respondent at the scene and the immediate actions taken by the complainant's family. Furthermore, the medical evidence specifically supported case of the prosecution, which the Trial Court erroneously dismissed, leading to an incorrect conclusion.
4.4 It is submitted that Supreme Court has repeatedly held that in cases of sexual assault, the victim's testimony alone, if trustworthy and credible, is sufficient to secure a conviction. The Trial Court's undue reliance on inconsequential and failure to apply this well-settled principle of law led to the erroneous acquittal of the respondent-accused.
5. Heard learned Advocate for the appellant. By order dated 27.08.2024, the record and proceedings were called for. Upon perusal of the same, it appears that, to prove the case against the respondent- accused, the prosecution relied upon the following oral evidence:
Sr. Name of Witnesses Exh. No.
No.
1 Deposition of complainant PW No.1 Victim 06
2 Deposition of PW No.2 Tarunkumar Babarbhai 09
3 Deposition of PW No.3 Pushparajsinh Bhagvatsinh 10
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4 Deposition of PW No.4 Dharmadevsinh Dilavarsinh 13
5 Deposition of PW No.5 Miteshkumar Babubhai 14
6 Deposition of PW No.6 Ashokkumar Takhatsinh 21
7 Deposition of PW No.7 Keshiben Sanabhai 27
8 Deposition of PW No.8 Dhavalkumar Tarunkumar 29
9 Deposition of PW No.9 Vikramkumar Ramanlal 30
10 Deposition of PW No.10 Chandrikaben Sarjanbhai 31
11 Deposition of PW No.11 Manishbhai Natvarlal 32
12 Deposition of PW No.12 Rameshchandra Somalal 33
13 Deposition of PW No.13 Yogiraj Rameshchandra 34
14 Deposition of PW No.14 Kishorkumar Ramanlal 35
15 Deposition of PW No.15 Dr. Paras Mangilal 36
16 Deposition of PW No.16 Rajendrasinh Raghuvirsinh 41
5.1 The prosecution also relied upon following documentary evidence:
Sr. Particular Exh. No.
No.
1 Complaint 07
2 Statement of the victim in before court 08
3 Panchnama of the place of the incident 11
4 Panch Slip 12
5 Panchanama of the clothes of the victim 15
6 Panch slip 16 to 20
7 Panchanama of the clothes of the accused 22
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8 Panch slip 23 to 26
9 Medical certificate of victim 37
10 Medical certificate of accused 38
11 Chit for medical examination of the victim 39
12 Chit for medical examination of the accused 40
13 Catalogue 42
14 Scientific Report 43
15 Letter of F.S.L. Vadodara 44
16 Report of Biology Department 45
17 Forwarding note and certificate of authority 46
18 Statement of the victim under Section 164 of CrPC 47
19 Consent of the victim for statement under Section 48
164 of CrPC
20 Note of presence of the victim for statement under 49
Section 164 of CrPC
21 Note of certificate of authority to Police officer of 50
Halol
22 Note to FSL for certificate of analysis of mudamal 51
23 Receipt of FLS to received mudamal 52
6. Exh-5 is statement of respondent-accused under section 313 of Cr.P.C. where accused has taken a stand that he is falsely charged with the offence and has denied the evidence collected.
7. From perusal of record, it appears that PW-1; appellant-victim, Exh-6, the complainant in her deposition stated that she informed her husband about the incident on the same day, but admitted that she Page 6 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined would not have filed a complaint if her husband had not intervened. On the day of the incident, only the victim and her maid PW-10, Chandrikaben Sarjanbhai, Exh-31, were present at the house, as her husband had gone to the farm. The victim stated that she was sitting in the front verandah when the accused arrived, presumably to visit the temple, and that she called him. The accused did not go there with any ill intent but responded to the victim's invitation. She later stated that the accused took her hand, led her to a room, and raped her, but the victim made no attempt to defend herself or escape. Her maid, who was nearby, did not intervene or assist the victim, even though she was in a position to do so. Moreover, there was no evidence of injury, bleeding, or torn clothing, and the victim herself admitted this during cross- examination. The victim's house, located in a populated area, is in close proximity to other houses, and the incident occurred at 9:30 AM, a time when people were around. However, there is no evidence that the victim shouted or raised alarm for help. The complaint was filed with the help of her husband PW-2 and son-in-law, and the victim admitted that her husband had asked her to give a statement based on the police complaint. Given the contradictions in the victim's testimony, the lack of physical evidence, and the absence of any corroborative evidence, her evidence does not seem credible or consistent. The court finds this evidence insufficient and failing to establish a direct link between the accused and the offence.
8. The glaring aspect from her deposition is that when her husband returned home, he found the accused committing offence inside the room of his house. The husband instead of running to the rescue of the victim, he locked the door from outside with both victim and accused inside the Page 7 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined room. This is indicative of the fact that the husband was more interested in catching hold of the accused and the victim together and then called for the neighbors. This version is coming out even in the FIR at Exh-7 and also, Exh-8; the statement of the victim recorded under Section 164 of Cr.P.C. This version first in point of time is indicative of the consensual intercourse.
9. The deposition of PW-15, Dr.Paras Mangilal, Exh-36, medical Officer, in his deposition he deposed that the medical examination of the victim revealed no injuries on her body and no signs or symptoms indicative of rape. Furthermore, the respondent-accused, in the presence of the medical officer, disclosed that he and the victim had been in a consensual relationship for the past two to three years. The accused claimed that the victim called him to the room, closed the door, and they attempted intercourse with mutual consent, during which the victim's husband arrived and witnessed the situation. The absence of any physical evidence of assault, coupled with the accused's statement about a consensual relationship and the lack of corroboration of force or coercion, significantly weakens the prosecution's case. The medical evidence presented is insufficient to establish the case against the accused beyond reasonable doubt.
10. The deposition of PW-2, Tarunkumar Babarbhai, examined at Exh- 9, reveals significant discrepancies and omissions between his testimony and his police statement, raising serious doubts about the credibility of his evidence. While he claimed to have witnessed the accused committing the alleged act, critical details such as hearing his wife's cries, seeing the accused fleeing, the presence of villagers, and his calls to the police were absent from his police statement. These omissions directly impact the core Page 8 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined of the case, and the witness failed to provide a satisfactory explanation for the inconsistencies. Furthermore, the acknowledgment of prior disputes and the accused's familiarity with the family, coupled with the witness's denial of filing a false complaint to avoid debt repayment, casts further suspicion on his testimony. The Court finds that the evidence provided by PW-2 is inconsistent, lacks reliability, and does not meet the standard required to establish the allegations beyond a reasonable doubt.
11. The Court finds that the testimony of PW-10, Chandrikaben Sarjanbhai, Exh-31, does not support the prosecution's case. Chandrikaben, who was present at the time of the alleged incident in the house of the victim, presented a narrative entirely different from that of the prosecution. She stated that she had purchased a TV from the respondent-accused on credit and was unable to repay the debt. Consequently, the mother of the respondent-accused came to the victim's house regarding the payment. Chandrikaben further testified that she called the respondent-accused, who was at the temple, and he came to the house in response to her call. This testimony contradicts the prosecution's version of events and does not provide any evidence to support the allegations of rape or unlawful conduct by the respondent- accused. The Court, therefore, finds that the evidence of PW-10 weakens the case of the prosecution.
12. The Court finds that the testimonies of PW-8; Dhavalkumar Tarunkumar, Exh-29, son of the victim and PW-11; Manishbhai Natvarlal Panchal, Practicing Advocate at Exh-32, son-in-law of the victim are not supportive of the prosecution's case, as their evidence is based solely on hearsay, with both witnesses admitting that they were informed about the incident by the victim's husband. Furthermore, the testimonies of PW-12 Page 9 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined Rameshchandra Somalal, Exh-33, PW-13 Yogiraj Rameshchandra, Exh-34 and PW-14 Kishorkumar Ramanlal, Exh-35, who are neighbors of the victim, are turned hostile and do not corroborate the prosecution's version of events. Upon perusing evidence and testimony on record, it is evident that no direct evidence has been presented to establish that the accused committed rape against the will or consent of the victim, or by putting her in fear of death or grievous injury. The lack of credible, corroborative, and direct evidence from all witnesses undermines the prosecution's case, and the allegations remain unsubstantiated. Accordingly, the Court finds that the evidence on record is insufficient to prove the charges against the accused beyond reasonable doubt.
13. The deposition of PW-16, Rajendrasinh Raghuvirsinh, Exh-41, the Investigating Officer, reveals that the panch witnesses failed to support the panchanama during the investigation. The testimonies of PW-3 Pushparajsinh Bhagvatsinh, Exh-10, PW-4 Dharmadevsinh Dilavarsinh, Exh-13, PW-5 Miteshkumar Babubhai, Exh-14, PW-6 Ashokkumar Takhatsinh, Exh-21, PW-7 Keshiben Sanabhai, Exh-27, and PW-9 Vikramkumar Ramanlal, Exh-30, who acted as panch witnesses, do not corroborate the prosecution's version and fail to substantiate the evidence recorded in the panchanama. The lack of support from all the panch witnesses raises significant doubts about the reliability of the investigation conducted by PW-16. In the absence of corroborative evidence and with the panchanama remaining unsubstantiated, the prosecution has failed to establish its case beyond reasonable doubt.
14. The victim's testimony, while claiming rape, was riddled with contradictions, such as the lack of any resistance or attempt to escape during the incident, and the absence of any physical injuries. The victim Page 10 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined herself admitted that she would not have filed a complaint if her husband had not intervened. Additionally, the lack of distress or any attempt by the victim to scream or seek help from neighbors in a populated area casts doubt on the credibility of the claim of non-consensuality.
15. The Court finds that there is no corroborative evidence to suggest that the victim was under any threat or duress by the accused. The victim made no mention of the accused using force beyond the alleged act itself, and there was no physical evidence of force, such as torn clothes, bruises, or injuries, which are typically expected in a rape case.
16. The accused's defense, supported by the medical examination, indicated a possible consensual relationship between the victim and the respondent-accused. The absence of a forced nature of the act, corroborated by the accused's statement and the lack of resistance from the victim, absence of any injury or bodily sign of resistance also points towards consensual relation.
17. The prosecution relied heavily on the victim's testimony, but the testimonies of the other witnesses, including the victim's husband, the maid, and neighbors, were either inconsistent, turned hostile, or failed to support the prosecution's case. Moreover, the panchanama and medical evidence did not substantiate the claim of rape. The investigating officer's testimony also revealed failures in the investigation process and lack of support from panch witnesses.
18. The Court finds the victim's testimony to be inconsistent with her police statement, and the lack of corroborative evidence from witnesses further undermined the credibility of her evidence. The medical evidence, which found no signs of rape or injury, also weakened the case against Page 11 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined the accused.
19. Based on the combined effect of the contradictions in the testimonies, the lack of corroborative physical evidence, the absence of any force or threat, and the failure of the investigation to establish a clear case, the Court concluded that the prosecution had not met the standard required to prove the charges under Section 375. The Court further finds that the evidence presented by the prosecution did not establish the guilt of the accused beyond a reasonable doubt.
20. The Court may refer to and rely upon the decision of the Apex Court in Rahul Versus State Of Delhi Ministry Of Home Affairs reported in 2023 (1) SCC 83, wherein in para 41 and 42, the Apex Court has held as under, "41. As demonstrated earlier, the evidence with regard to the arrest of the Appellants-accused, their identi cation, discoveries and recoveries of the incriminating articles, identity of the Indica Car, the seizures and sealing of the articles and collection of samples, the medical and scienti c evidence, the report of DNA pro ling, the evidence with regard to the CDRs etc. were not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused. The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime.
42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being in uenced by any kind of outside moral Page 12 of 14 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:18:36 IST 2025 NEUTRAL CITATION R/CR.A/1806/2024 JUDGMENT DATED: 20/01/2025 undefined pressures or otherwise."
21. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. vs. State of Karnataka reported in (2007) 4 SCC 415, the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court.
22. The Court has also perused judgment and order of the Sessions Court and finds that cogent and convincing reasons are assigned by the Sessions Court while acquitting the respondent-accused.
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23. In view of the aforesaid discussion, the Court finds no reason to interfere with the impugned judgment and order of acquittal dated 20.06.2024 passed by the 2nd Additional Sessions Judge, Halol District- Panchmahals in Session Case No.34 of 2022. The Appeal is therefore dismissed. Bail bond stands discharged. Records and Proceedings be sent back to the concerned Sessions Court.
Sd/-
(A.Y. KOGJE, J) Sd/-
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