Gujarat High Court
Kiranbhai Vasantbhai Vasava vs State Of Gujarat on 31 January, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 747 of 2014
With
R/CRIMINAL APPEAL NO. 648 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
==========================================================
Approved for Reporting No
==========================================================
KIRANBHAI VASANTBHAI VASAVA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PH BUCH(1018) for the Appellant(s) No. 1
MR. L.B. DABHI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. Criminal Appeal No. 747 of 2014 has been filed by the appellant - original accused no. 1 - Sandip @ Rahul Vinod Chauhan and Criminal Appeal No. 648 of 2015 has been filed by the appellant - original accused no. 2 - Kiranbhai Page 1 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined Vasantbhai Vasava under Section 374(2) of the Code of Criminal Procedure against the judgement and order dated 07.10.2013 passed by the learned Sessions Judge, Bharuch (hereinafter referred to as the "learned Trial Court") in Sessions Case No. 11 of 2013. The appellants were put on trial for the offence punishable under Sections 376(g) and 506(2) of the Indian Penal Code and were convicted and sentenced to life imprisonment and fine of Rs 20,000/- (Rupees Twenty Thousand only) each and in default, to simple imprisonment for six months for the offence under Section 376(g) of the IPC and to rigorous imprisonment for seven years and fine of Rs. 5000/- (Rupees Five Thousand only) and in default, simple imprisonment for one month for the offence under Sections 506(2) of the IPC. Both the accused were further ordered to pay compensation Rs. 50,000/- (Rupees Fifty Thousand only) to the victim and the learned Trial Court was pleased to further order both the sentences to run concurrently and the period of detention to be given as a set off against the sentence. Page 2 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 1.1 The appellants are referred to as the accused as they stood in the rank and file 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:
2.1 The complainant - victim was residing in the Nari Suraksha Kendra, Bharuch as she was the only child of her parents and her mother had expired in the year 2004 and her father in the year 2008. That she was residing with her paternal aunt at Sayan and was studying in class nine and she could not adjust to her paternal aunt and went to her grandfather's house at Mandva. Her uncle - Shaileshbhai Becharbhai Prajapati scolded her for talking to boys and she felt hurt and went to one known aunt's house at Surat and resided there for 15 days and was doing the house work.
Her uncle came to know and came to Surat to take her and she went straight to Ankleshwar Police Station as her grandfather had given a missing person's report. At the Ankleshwar Police Station, she refused to go to the house of any of her relatives and she was sent to Nari Suraksha Page 3 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined Kendra, Bharuch on 25.02.2012. That she was friendly with one Komal Nilkanth Marathe who enticed her to go outside and on the day of Dhuleti, they tried to flee from the home but one Bhadraben Prajapati saw them and they did not leave the home. On 25.03.2012, she and Komal ran away from the Nari Suraksha Kendra and stayed at the place of one Rehanaben who was known to Komal. On 26.03.2012, she and Komal came to the Bharuch Railway Station and went without ticket to Surat and in the afternoon they were hungry and as they did not have money, they sold her nose ring for ₹200/-. They returned to Bharuch at around 03.00 pm and looked for work and met Kiran Vasava - the friend of Komal, who called Ravi @ Babubhai with a rickshaw and they went to Gayatri Temple for worship. That after the darshan they came to the rickshaw and Komal, Kiran and Ravi sat in the rickshaw and she walked towards the river when Kiran came behind her, caught her and threw her on the ground and forcibly had sexual intercourse with her. That she was afraid and she did not tell anyone about the same and they came back to Bharuch Railway Station Page 4 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined where Babubhai dropped them from the rickshaw and she, Komal and Kiran met Sandip Chauhan and they decided to go for a movie to Relief Talkies. During the interval, they came for dinner at Jambusar Bypass and at around 11.45 pm - 12.00 midnight they went in the rickshaw behind Navjeevan High School and all four of them were walking when Komal went to answer nature's call and she, Kiran and Rahul @ Sandip went through a narrow lane into an open room where there was a bed and a lamp burning. Kiran shut the door and caught her hands and mouth and Rahul @ Sandip removed all her clothes and raped her. Thereafter, Rahul caught her hands and mouth and Kiran raped her and both of them threatened to kill her if she told anyone about the incident. That she was afraid and wore her clothes and came out and met Komal but she did not tell Komal about the incident. That she and Komal walked to the railway station and Komal left her and went away with someone else and told her to go back to the Nari Suraksha Kendra but she met a boy named Mukesh who was selling pouches of water and she told him to keep her Page 5 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined with him for some days. That she remained with him for a few days and on 15.04.2012, Mukesh took her to the house of his aunt at Naldhari, Valiya where they kept her for two days and brought her back to the Nari Suraksha Kendra, Bharuch. She informed them about the incident and she was taken for a medical checkup, and she had filed the complaint on 17.04.2012 at Bharuch 'C' Division Police Station Camp at Civil Hospital, Bharuch which was registered at I - C. R. No. 48 of 2012 under Sections 376(g) and 506(2) of the IPC.
2.2 The Investigating Officer collected the evidence drew the necessary panchnamas, recorded the statements of the connected witnesses and as the involvement of the accused was found in the offence, the accused were arrested and a charge-sheet came to be filed before the Court of the Judicial Magistrate First Class, Bharuch. As the case was exclusively triable by the Session Court, Bharuch, a committal order under Section 209 of the Code of Criminal Procedure was passed, and the case was registered as Sessions Case No. 11 of 2013.
Page 6 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 2.3 The accused appeared before the learned Trial Court and it was verified whether the provisions of Section 207 of the Code of Criminal Procedure was complied with and a charge was framed against the accused at Exh. 9 and the statements of the accused were recorded at Exh. 10 and Exh. 11 respectively. The accused denied all the contents of the charge and the evidence of the prosecution was taken on record. The prosecution examined 19 witnesses and produced 25 documentary evidences in support of their case and after the learned APP filed the closing pursis at Exh. 77, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused denied all the evidence of the prosecution produced on record. The accused refused to step into the witness box or lead evidence and examine witnesses and after the arguments of the learned APP as well as the learned Advocate for the accused were heard, the learned Trial Court was pleased to find both the accused guilty for the offence under Sections 376(g) and 506(2) of the IPC and sentenced them as mentioned above.
Page 7 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined
3. Being aggrieved and dissatisfied with the judgement and order of conviction, the appellants have filed the present appeals mainly stating that the learned Trial Court has failed to appreciate that the prosecution has not proved the case beyond reasonable doubts and the learned Trial Court ought to have appreciated that the appellants herein have been caught and arrested after about twenty one days from the date of unpleasant incident and there is no involvement of the appellants. There is no eye witness, no independent witness, not only this but the admitted fact is that the victim herself has chosen to not to tell about the incident that has taken place with her for a pretty long time of about 21 days. That she did not tell about the unpleasant incident to her friend Komal who was accompanying her at the time of happening of the incident. It is apparent that the victim is a consenting party and materially important and independent witnesses have not been examined. There are material contradictions and omissions in the deposition of the victim and her complaint. The complaint clearly appears on the face of it as an afterthought to save the victim herself Page 8 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined as well as her friend Mukesh. There is no medical evidence supporting the story and no official report supporting or corroborating the evidence of the prosecution. That the prosecution witnesses who have been examined, have no personal knowledge to support the case of prosecution and the complaint admittedly is lodged after a delay of twenty one days. The learned Trial Court has not appreciated the evidence in proper perspective and the allegations are not believable by any ordinary and prudent person and hence, the impugned judgement and order is bad in law and is required to be quashed and set aside.
4. We have heard learned Advocate Mr. P. H. Buch for the appellant of Criminal Appeal No. 747 of 2014, learned Advocate Mr. Pratik Barot for the appellant of Criminal Appeal No. 648 of 2015 and learned APP Mr. L. B. Dabhi for the respondent state. We have also perused the impugned judgement and order and the evidence produced by the prosecution before the learned Trial Court Page 9 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined
5. Learned advocates for the appellants have submitted that the learned Trial Court has not appreciated the evidence properly and has not taken into consideration the defence of the appellants. The medical evidence does not support the say of the victim that any offence had taken place and the evidence of the victim is not credible to inspire confidence of the Court. The learned Trial Court has not considered the defence of the appellants that they are falsely implicated in a serious offence and the prosecution has not produced any legal, reliable and unimpeachable evidence to support the original genesis of occurrence that the incident in question has taken place. The learned Trial has drawn inferences against the defense and in favor of the prosecution and the learned Trial Court has failed to appreciate that the prosecution has failed to prove the various panchnamas. The learned Trial Court has grossly erred and misread and misconstrued the intention of the appellants and has not seen the facts of the case and there was no evidence of the said offences. Learned advocates further submit that most of the witnesses have turned Page 10 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined hostile and the impugned judgement and order is erroneous, bad in law and is required to be quashed and set aside.
6. Learned APP Mr. L. B. Dabhi has taken this court through the entire evidence of the prosecution on record and has submitted that the learned Trial Court has appreciated each and every evidence on record and from the evidence the prosecution has proved the case beyond reasonable doubt. The say of the victim has been believed by the learned Trial Court and the victim was a minor on the date of the incident and she has stated that she was afraid and as she was threatened by the appellants, she did not inform any one about the incident. There is no reason to disbelieve the evidence of the victim and their presence at the place of incident at the time of the offence is clearly proved by the prosecution. Learned APP has urged this Court to reject the appeals of the appellants.
7. Before we proceed to decide the appeal, it would be appropriate to reproduce the observations of the Apex Court Page 11 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined in the case of Lal Mandi V. State of West Bengal reported in 1995 Cri LJ 2659 regarding the duty of the appellate Courts in hearing of appeals in conviction matters which is as under:
5. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate.
The presumption of innocence of accused which gets strengthened on his acquittal is not available on his Page 12 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence......
7.1 In RE: Right to Privacy of Adolescents Suo Moto Writ Petition (C) No. 3/2023 with Criminal Appeal No. 1451/2024 decided on 20.08.2024, the Apex Court in para 13 has observed as under:
13. When a Court deals with an appeal against an order of conviction, the judgment must contain (i) a concise statement of the facts of the case, (ii) the nature of the evidence adduced by the prosecution and the defence, if any, (iii) the submissions made by the parties, (iv) the analysis based on the reappreciation of evidence, and (v) the reasons for either confirming the guilt of the accused or for acquitting the accused. The Page 13 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined appellate court must scan through the evidence, both oral and documentary, and reappreciate it. After reappreciating the evidence, the appellate court must record reasons for either accepting the evidence of the prosecution or for disbelieving the evidence of the prosecution. The Court must record reasons for deciding whether the charges against the accused have been proved. In a given case, if the conviction is confirmed, the Court will have to deal with the legality and adequacy of the sentence. In such a case, there must be a finding recorded on the legality and adequacy of the sentence with reasons. The ultimate object of writing a judgment is to ensure that the parties before the Court know why the case is decided in their favour or against them. Therefore, judgment must be in a simple language. The conclusions recorded by the Court in the judgment on legal or factual issues must be supported by cogent reasons.
8. In light of the above settled principles of law, at this juncture it would be appropriate to refer to the evidence led by the prosecution on record of the case.
8.1 The prosecution has examined PW1 - the victim -
complainant at Exh. 14 and the witness has stated that her parents had expired and she was residing with her uncle Page 14 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined and aunt at Sayan and from there she had gone to reside with her grandfather. Her uncle used to scold her and she went away to Surat to live with a person who was known to her and her grandfather had given a missing person's complaint in the Police Station. When she was brought before the police, she refused to go to anyone's house and she was sent to the Nari Suraksha Kendra at Bharuch, where she became friendly with a girl named Komal and they made a plan to escape. On 25.03.2012, at around 07.00 am, she and Komal went to Munnibai, a person known to Komal and they stayed at the place of Rehana - the daughter of Munnibai. The next morning they went to Surat by train and they sold her nose ring for ₹200/- and returned to Bharuch, where they met Kiran and went with Babu in his rickshaw where Kiran removed her clothes and raped her. Komal told them that they did not have a place to stay and Kiran took them to a room. Kiran called Rahul and they were taken to the bypass. They went to Relief Talkies to see a movie but left the movie midway and went to the room where Komal went to answer nature's call. There was no Page 15 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined light in the room and Rahul and Kiran came into the room and raped her and left the room after threatening to kill her if she told anyone about the incident. She informed Komal about the incident and Komal told her that she would go to Surat in the morning. She met Komal's friend Mukesh and informed him about the incident and asked him to let her stay with him for some days. Kiran and Rahul came to know that she was with Mukesh and they telephoned him and told him to handover her custody to them and hence, she and Mukhes went towards Vadodara but they kept on threatening them. That she returned to the Nari Suraksha Kendra on the 17th and informed them about incident and she was sent for a medical checkup and she told the doctor about the incident and filed the complaint which is produced at Exh. 16. That she was studying in standard nine and her date of birth is 20.09.1998 and she has produced her birth certificate at Exh. 17.
During the cross-examination by the learned advocate for the accused, the witness has stated that she has no one in her family and she stayed with her aunt for eight years. Page 16 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined She did not like staying with her aunt and uncle as they would beat her and not give her food and she had left their house of her own free will and had gone to her grandfather's house where she lived for two to three days. That she left her grandfather's house of her own free will as they shouted at her. That when she left the house of aunt and uncle, she had ₹500/- to ₹600/- with her and she went in a rickshaw to Palanpur Patia, where her aunt lived. The name of her aunt is Minaben Natubhai Patel and her Uncle is doing carpentry work. That her aunt came to know her whereabouts and took her to the Ankleshwar Police Station from where she was sent to Nari Suraksha Kendra. That she did not know the accused prior to the incident and in her complaint, she has not stated that the accused put a cloth in her mouth so that she could not shout and she has not stated that the accused had threatened to kill her. 8.2 The prosecution has examined PW2 - Behcharbhai Dahyabhai Prajapati at Exh. 19 and the witness is the grandfather of the victim who has stated that he had filed a missing person's report in the Ankleshwar Police Station Page 17 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined and the police had brought the victim and taken her to the Nari Suraksha Kendra. During the cross-examination, the witness stated that he has no personal knowledge about the incident and the victim had left his house without informing them and had returned ten days after they had filed the missing person's report in Ankleshwar Police Station. That the victim had refused to come to his house and had run away from the Nari Suraksha Kendra on 25.03.2012. That in his statement before the police he had stated that on 17.05.2012, he had received a phone call from Nari Suraksha Kendra, Bharuch that the victim was found and he had thereafter gone to meet the victim. 8.3 The prosecution has examined PW3 - Chhayaben Bachubhai Bhatia at Exh. 20 and the witness was working as the In-charge Superintendent of Nari Suraksha Kendra, Bharuch. On 25.03.2012, the victim and Komal Nilkanth Marathe ran away from the institution and the 'A' Division Police Station was informed and they searched for both the girls. Komal returned to the institute on 30 th but the victim did not return till 17.04.2012 and two ladies came to drop Page 18 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined her at the institution. As she was out for a long time, the Chairman of the Child Welfare Committee instructed her to get her medical checkup done and she was taken to Civil Hospital Bharuch, where she informed about the incident and the 'C' Division Police Station was informed. When the victim came to the institution, she told them about the incident.
During the cross-examination, the witness has stated that in her statement before the police, she has stated that the behaviour of Komal was different from the other girls and the victim was residing in the same room with Komal and they were keeping a strict watch on Komal, but not on the victim. That Komal had returned on 30.03.2012 but the victim remained outside for 24 days and did not come on her own but Kantaben - the mother of Mukesh and one Ambaben brought her back to the institution. The victim had told her that she was living in the train and garden with Mukesh for many days. That Komal did not tell them anything about the incident and an information was sent by the doctor and the complaint was filed.
Page 19 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 8.4 The prosecution has examined PW4 - Pushpaben Sakarlal Vasava at Exh. 21 and the witness was working as a peon in Nari Suraksha Kendra at Bharuch. The witness has stated that Komal and the victim ran away and after sometime, Komal returned to the institution on her own but the victim returned with Kantaben and Ambaben on 17.04.2012. That she had gone for the medical checkup with the victim and the victim had told the doctor about the incident.
8.5 The prosecution has examined PW5 - Bhupatbhai Gumanbhai Patanwadia at Exh. 22 and PW8 - Naveenbhai Rathorebhai Vasava at Exh.36. Both the witnesses are the panch witnesses by which the clothes of the victim were seized by the investigating officer. The witnesses have not supported the case of the prosecution and they have stated that they were called to the Jhadeshwar Chowki and asked to affix their signatures on some papers but they do not know on what papers they had affixed their signatures and have merely identified their signatures on the panchnama produced at Exh. 23.
Page 20 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 8.6 The prosecution has examined PW6 - Deepakbhai Gopalbhai Thakkar at Exh. 32 and the witness is the Medical Officer who was on duty on 20.04.2012 at General Hospital, Bharuch and the victim was examined by him. In the history, the witness has stated that the victim, in the history, had stated that on 25.02.2012, her grandfather had kept her at Nari Suraksha Kendra and on 25.03.2012, she and Komal Nilkanth Marathe ran away from the Nari Kendra. That they had gone to Munniben's house and stayed with her daughter - Rehena at Bharuch and on the next day i.e. 26.03.2012, they met Kiran and went to the river bank and Kiran, raped her and thereafter, they went to the railway station in rickshaw and met Rahul @ Sandip and they went for dinner and to see a movie. Thereafter, she was taken to a small hut and threatened and raped and on 27.03.2012, she separated from Komal and stayed for 15 days at Vadodara and returned to the Nari Gruh on 17.04.2012. On examination, there were no injuries and as per the opinion of the witness, there was no probability of Page 21 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined intercourse in the last 72 hours and she had undergone repeated intercourse in the past.
8.7 The prosecution has examined PW - Dr. Sheetal Sunderlal Ehari at Exh. 34 and the witness is the Medical Officer at Civil Hospital, Bharuch who had examined the victim and as per the say of the witness, the victim had narrated the same facts as stated before PW6. As per the opinion of the witness, there were no injuries found on the body of the victim and she was sent for age verification to SSG Hospital, Vadodara and the victim was habitual to intercourse in the past. The witness has produced the medical certificate at Exh. 33.
8.8 The prosecution has examined PW9 - Kishorebhai Bhikhabhai Patanvadiya at Exh. 37 and the witness is the panch witness of the panchnama of the place of offence produced that Exh. 38. The witness has stated that on 18.04.2012, he was on the highway at Jhadeshwar doing his business of peanuts and at that time, the police came and asked him to affix his signature on the panchnama. He had not gone anywhere with the police. The witness has not Page 22 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined supported the case of the prosecution and has been declared hostile and he has denied that in his presence, a mattress was seized by the Investigating Officer. 8.9 The prosecution has examined PW10 - Dr. Vijaykumar Motiram Bavishkar at Exh. 40 and the witness is the Medical Officer who has examined the accused and has produced the medical certificates at Exh. 42 and 43 respectively. The witness has stated that no injury marks were found on the bodies of both the accused and from the examination, there was nothing to suggest that the accused were incapable of performing sexual intercourse. 8.10 The prosecution has examined PW11 - Arvindbhai Kalidas Parmar at Exh. 44 and PW13 - Jagdishbhai Bhikhabhai Parmar at Exh. 52. Both the witness are the panch witness of the panchnama produced at Exh. 45, whereby, the mother of the accused no. 1 - Meenakshiben widow of Govindbhai Chauhan produced the clothes worn by the accused no. 1 at the time of the incident and the panchnama produced at Exh. 46, whereby, the accused no. 2 was arrested. The witnesses have not supported the case Page 23 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined of the prosecution and have submitted that they were called to the police station and they have merely affixed their signatures on the panchnamas and the panch slips. During the cross-examination by the learned APP, nothing to support the case of the prosecution has come on record. 8.11 The prosecution has examined PW14 - Himmatbhai Madhavbhai Parmar at Exh. 53 and PW15 - Ashokbhai Bhogilal Rana at Exh. 58. Both the witnesses are the panch witnesses of the panchanama produced at Exh. 54, whereby, the Investigating Officer seized the clothes of the accused no. 2 from the custody of Unarmed Head Constable
- Dawoodbhai Noorbha Bhatti who had brought the clothes from Sub Jail, Bharuch. Both the witnesses have not supported the case of the prosecution and have stated that on 20.04.2012, while they were standing at Jhadeshwar Crossroads, the police had asked them to affix their signatures on panchnamas which were prepared and they had merely affixed their signatures. No clothes were seized in their presence and both the witnesses have been declared hostile and during the cross-examination by the learned Page 24 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined APP, nothing to support the case of the prosecution has come on record.
8.12 The prosecution has examined PW16 - Kantibhai Haribhai Patel at Exh. 61 and the witness is the Talati Cum Mantri of Kharach, Taluka Hasot, District Bharuch and he has produced the extract of the Birth and Death Register at Exh. 62. The witness has stated that at serial no. 37, the birth of the victim is registered on 02.10.1998, wherein, the date of birth of the victim is 20.09.1998 and the entry was made on the basis of the information provided by Kushalbhai Madhavbhai Prajapati.
During the cross-examination, the witness has admitted that he was deposing on the basis of the record and generally the birth is noted after the information is received from the hospital. That if a birth is directly registered, they inquire about the same and he does not know on what basis is the birth of the victim entered in the record.
8.13 The prosecution has examined PW17 - Bhagwanbhai Govindbhai Chauhan at Exh. 64 and the witness was the Page 25 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined PSO of Bharuch City 'C' Division Police Station on 18.04.2012 and he had registered the complaint of the victim at C. R. No. 48 of 2012 under section 376(g) and 506(2) of the IPC. The witness has produced the extract of the Station diary at Exh. 65.
8.14 The prosecution has examined PW18 - Abhijitsinh Madhavsinh Parmar at Exh. 69 and the witness is the Investigating Officer who has narrated in detail the procedure that he had undertaken during investigation. The witness stated that he had sent the muddamaal to the FSL along with the certificate and the report from the FSL was received which is produced at Exh. 74. During the cross- examination by the learned advocate for the accused, the witness has stated that during investigation, it was found that the victim had voluntarily left the house of her uncle and aunt and grandparents, and her parents had expired. That she had gone on her own volition to the Naari Suraksha Kendra and at the time of the incident, she had ran away from the Nari Suraksha Kendra with Komal. Page 26 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 8.15 The prosecution has examined PW19 - Babulal Amathalal Sharma at Exh. 76 and the witness was working as the Police Inspector, 'C' Division Police Station, Bharuch and he had filed the charge-sheet against the accused.
9. With regard to the facts in the present case, it would be fit to refer to the observations made the Apex Court in The State of Punjab vs Gurmit Singh & Ors reported in 1996 2 SCC 384 has observed in para 8 as under:
"8.......The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepencies in the statement of the prosecutrix should not, unless the discrepencies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. the testimony of the victim in such cases in Page 27 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every Page 28 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined case of rape. Corroboration as a condition for judicial reliace on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be draw from a given set of facts and circumstances with realistic diversity and not dead unifomity test that type of rigidity in the shape of rule of law is introduced through a new form of testimony tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.......
9.1 The Apex Court in Sadashiv Ranarohadbe V. State of Maharashtra & Anr. reported in 2006 10 SCC 92 has observed in Para 9 as under:
"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole Page 29 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.
9.2 The Apex Court in The State of Himachal Pradesh V. Manga Singh reported in 2019 16 SCC 759 has observed in Para 11 and 12 as under:
11. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.
12. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the Page 30 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 'probabilities factor' does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.
9.3 With regard to the quality of evidence of the witness, the Apex Court in Rai Sandeep @ Deepu & Anr. V. State of NCT of Delhi reported in 2012 8 SCC 21 has observed in Para 15 as under:
15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and Page 31 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co- relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should Page 32 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
9.4 Similarly, the Apex Court in Krishan Kumar Malik V. State of Haryana reported in 2011 7 SCC 130 has observed in Para 31 as under:
31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (Code of Criminal Procedure), FIR and deposition in Court. "
9.5 The Apex Court in Rajoo & Ors. V. State of M.P. & Anr. reported in 2008 15 SCC 133 has observed in Para 9 as under:
Page 33 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined
9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the Page 34 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely.
We believe that it is under these principles that this case, and others such as this one, need to be examined.
Page 35 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025
NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined 9.6 With regard to the facts in the present case regarding proof of date of birth of the victim, it would be fit to refer to the observations made the Apex Court in Satpal Singh V. State of Haryana reported in 2010 8 SCC 714 in para 27 which reads as under:
"27. Thus, the law on the issue can be summerised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the Court/Authority to examine its probative value. The authenticity of the entry would depend as on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case."
9.7 The Apex Court in Kalpana Mehta & Ors. V. Union of India & Ors. reported in 2018 7 SCC 1 has observed in Para 69 as under:
"69. According to Section 74 documents forming the acts, or records of the acts of Legislature of any part of India is a public document. We have noticed above Page 36 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined that Parliament has already adopted report of privilege committee that for those documents which are public documents within the meaning of Indian Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court. We may, however, hasten to add that mere fact that a document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents also are true and correct."
10. Having heard learned advocates appearing for the respective parties and having gone through the materials on record the only question that arises for determination in this appeal is whether in the facts and circumstances of the present case, the learned Trial Court was justified in passing the order of conviction under Sections 376(g) and 506(2) of the IPC solely relying on the deposition of the victim as a sterling witness and whether the learned Trial Court has rightly relied upon the birth certificate of the victim produced at Exh. 17?
11. It is the case of the prosecution that the victim was a minor on the date of the incident and her birth certificate is Page 37 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined produced at Exh. 17. We find that the birth certificate of the victim has been produced in her own deposition where she has stated that her date of birth is 20.09.1998 and she has produced her birth certificate at Exh. 17. The prosecution has examined PW16 - Kantibhai Haribhai Patel, Talati cum Mantri, Kharach, Taluka Hansot, District Bharuch and he has produced the extract of the Births and Deaths Register at Exh. 62, wherein, at serial no. 37, the name of the victim has been entered in the record on the basis of the information given by Kushalbhai Madhavbhai Prajapati. The witness has stated that generally the birth is registered as per the information given from the hospital but sometimes the birth is directly registered but he does not know under what circumstances the birth of the victim has been registered. The prosecution has not examined Kushalbhai Madhavbhai Prajapati and there is no evidence on what basis, the birth of the victim has been registered. It is settled principle of law that the authenticity of the entry in the register would depend upon the source of information and it is required to be approved in accordance with law but Page 38 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined the prosecution has not proved the contents of the document produced at Exh. 17 beyond reasonable doubts and on mere production of the document, it cannot be presumed that the contents of the document are correct. Hence in light of the judgments of the Apex Court in Satpal Singh (Supra) and Kalpana Mehta (Supra) we find that the learned Trial Court was not justified in relying upon the document produced at Exh. 17.
12. We have minutely dissected the evidence of the victim to examine whether it can be said that her deposition is of sterling quality and her say is an assailable version and whether it can be accepted at its face value without any corroborating evidence. It is settled law that the evidence of a victim stands at par with the evidence of an injured witness and is reliable and can be acted upon even without corroboration if it is found to be of a sterling quality. As per the case of the prosecution, the incident has occurred while the victim fled away from Nari Suraksha Kendra, Bharuch with Komal on 25.03.2012 and they resided for one night at Page 39 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined the place of Rehana - the daughter of one Munnibai who was known to Komal. It is pertinent to note that the prosecution has not examined Komal who was the friend of the victim and had fled away from the Nari Suraksha Kendra along with the victim. At the time of the incident, Kamal was with the victim and as per the victim, the incident of rape has occurred twice, once while both of them were with Kiran and Babu and at that time, Kiran, Babu and Komal sat in the rickshaw and she started walking and Kiran came from behind her, removed her clothes and raped her. This incident is said to have occurred in a public place but she did not mention about the incident to Komal or Babu and continued to accompany them to see a movie at Relief Talkies. That she preferred to be in the company of Kiran and Babu and thereafter, the four of them left the movie midway and they asked Kiran and Babu for a place to stay and while they were going to see the place where they were to stay for the night, Komal went to answer nature's call and she, along with both the accused went into the room where the second incident of rape has occurred and Page 40 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined both Kiran and Rahul raped her. That she met Komal immediately after the incident but she did not tell Komal about the incident and there is nothing on record to show where the victim and Komal spent the night. As per the say of the victim, the next morning she met Mukesh and she stayed with Mukesh for many days till she went back to the Nari Suraksha Kendra on 15.04.2012 and the complaint was filed on 17.04.2012. The prosecution has not examined Mukesh with whom the victim was from 25.03.2012 to 15.04.2012 and even thereafter, as per the victim, Mukesh took her to the house of his aunt at Naldhari, Valiya where she resided for two days but she did not inform the aunt of Mukesh about the incident. If the evidence of the victim is perused, the deposition does not appear to be natural and consistent with the case of the prosecution and the acts of the victim to not reside with her Aunty and Uncle or Grandfather and thereafter, running away from the Nari Suraksha Kendra with Komal and both of them joining the company of Kiran and Rahul without knowing them, does not appear to be natural. The prosecution has not examined Page 41 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined Komal, Ravi @ Babubhai, Munnibai, Rehana, Mukesh or his Aunt to corroborate the say of the victim that in fact she had met them or that she stayed with them for some time and except for the say of the victim, there is no iota of evidence in the case of the prosecution regarding the whereabouts of the victim from 25.03.2012 to 15.04.2012. Even if we do not seek for corroboration regarding the actual sexual assault, the other aspects are required to be proved by some corroboration at least regarding the whereabouts of the victim and whether she was at the places and in the company of persons, as stated by her during the time period from 25.03.2012 to 15.04.2012. We find that the deposition of the victim has many discrepancies and the evidence does not inspire confidence and cannot be relied upon without some corroboration to satisfy our judicial conscience. The prosecution has not examined the Aunty and Uncles of the victim who could throw some light on the reasons why the victim was at the Nari Surakhsha Kendra or even her date of birth and who was Khushalbhai Madhavbhai Prajapati. We find that the Page 42 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined case of the prosecution, as per the version of the victim, seems highly improbable and suffers from various lacunae and the deposition of the victim does not fall in the category of a "sterling witness" and it would not be in the fitness of things to solely rely on the evidence of the victim to convict the accused.
13. In view of the above discussions, we of the considered opinion that the prosecution has not fully proved the case beyond reasonable doubt to come to a conclusion about the guilt and the involvement of the appellants in the offence and there is no legal evidence on record to sustain the conviction of the appellants. The learned Trial Court has not appreciated the evidence in proper perspective and we are of the considered opinion that the evidence adduced by the prosecution is not sufficient to come to a finding that the accused have committed the offence and can be convicted for the same and consequently, Criminal Appeal No. 648 of 2015 and Criminal Appeal No. 747 of 2014 are allowed. The conviction of the appellants under Section 376(g) 506(2) of Page 43 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025 NEUTRAL CITATION R/CR.A/747/2014 JUDGMENT DATED: 31/01/2025 undefined the IPC is hereby set aside. The appellants shall be set at liberty, forthwith if not required to be detained in connection with any other offences. Fine, if any, paid by the appellants be refunded.
14. Registry is directed to send the R & P back to the learned Trial Court and maintain the copy of this judgement in Criminal Appeal No. 648 of 2015.
(ILESH J. VORA,J) (S. V. PINTO,J) VASIM S. SAIYED Page 44 of 44 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Sat Feb 01 2025 Downloaded on : Mon Feb 03 22:09:10 IST 2025