Gujarat High Court
Sahista D/O Harun Chand Kalvani vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.A/1304/2023 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1304 of 2023
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SAHISTA D/O HARUN CHAND KALVANI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HITESH S PADHYA(3877) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Opponent(s)/Respondent(s) No.
2,3,4,5,6,7
MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 03/07/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. Respondent nos.2 to 7 are accused nos.1 to 6 in Sessions Case No.10 of 2021 on the file of learned Second Additional Sessions Judge, Gir Somnath at Veraval. They were prosecuted for the offences punishable under Sections 365, 376 (2) (N), 504, 506 (2) and 114 of the Indian Penal Code. Eventually, after the trial of the case, they were all acquitted of the said charges by the impugned judgment of acquittal.
2. Aggrieved by the said judgment of acquittal, the prosecutrix filed this appeal questioning the said judgment of acquittal. The State did not prefer any appeal against the said judgment of acquittal.
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3. Initially, coordinate Bench of this Court issued notice to respondent nos.2 to 7 before admission. Pursuant to receipt of the said notice, learned advocate Mr.Chintan Popat made his appearance on behalf of respondent nos.2 to 7.
4. Heard Mr.Hitesh Padhya, learned counsel for the appellant, Mr.Bhargav Pandya, learned Additional Public Prosecutor for the first respondent-State and Mr.Divyang Joshi for Mr.Chintan Popat, learned counsel for respondent nos.2 to 7.
5. The main allegation against the accused no.1 is that he had kidnapped the prosecutrix, who is a major girl aged about 20 years, from her lawful guardianship and, thereafter had forcible sexual intercourse with her and, thereby committed rape on her and thereafter threatened her with dire consequences. The accused nos.2 to 6 are all relatives and friends of accused no.1. So, it is stated that they abetted accused no.1 to commit the said offences. In essence, it is the substance of the accusation made by the prosecution against the accused.
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6. To substantiate the case of the prosecution, although about 41 witnesses were cited in the charge-sheet, ultimately, only six witnesses were examined during the course of trial. Two of them are official witnesses, one is investigating officer and the other is the PSO, who registered the FIR. The other four witnesses are prosecutrix, her father and their relatives.
7. The defence of the accused is total denial of the case of the prosecution and the allegations ascribed against him relating to the alleged kidnap and rape of the prosecutrix. It is his specific case that accused no.1 and prosecutrix were in love with each other and they both together eloped and lived together and, that thereafter they married each other. It is the further contention of the accused, as per the defence taken by him that initially when there was a quarrel between the accused and the family members of the prosecutrix i.e. with her father and others, that a report was lodged by the accused no.1 with police and a case under Section 323 of IPC and other sections was registered against them and that thereafter the present case was foisted against the accused, as a counterblast to the said case registered at the instance of the accused no.1.
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8. The trial Court, after considering the evidence on record and on appreciation of the same, found that there was a love affair between both the accused no.1 and the prosecutrix and there was no offence of kidnap committed by accused no.1 and no offence of rape was also committed by accused no.1 on the prosecutrix. The trial Court also found that there was a marriage subsequently between accused no.1 and the prosecutrix and, thereby the trial Court completely dis-believed the case of the prosecution and acquitted all the accused of the said charges.
9. Now, learned counsel for the appellant strenuously contended before this Court that the alleged marriage between the accused no.1 and the prosecutrix was performed by force at the instance of accused no.1 and the prosecutrix was made to sign in the Nikahnama by force and it is not a valid marriage. He would also submit that divorce case was also filed by her in the competent Civil Court and it is pending.
10. As can be seen from the cross-examination of the prosecutrix examined as PW-1, she categorically admitted that there was love affair between her and accused no.1. Page 4 of 7 Uploaded by R.S. MALEK(HC00180) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:59:05 IST 2025
NEUTRAL CITATION R/CR.A/1304/2023 ORDER DATED: 03/07/2025 undefined Admittedly, she is major aged about 20 years. Therefore, when there is a love affair between the prosecutrix and the accused no.1, the allegations ascribed against accused no.1 by the prosecution that he has kidnapped the prosecutrix and thereafter committed rape on her cannot be believed. If at all they both had any sexual intercourse, since she is a major, it is a consensual sexual intercourse that took place between them, with her consent and not by force. The doctor, who has examined her, was not examined in this case to prove that forcible sexual intercourse was performed on her. Although learned counsel for the appellant relied on a judgment of the Apex Court rendered in the case of State of Madhya Pradesh v. Dayal Sahu, 2005 (0) GLHEL-SC 35789, wherein it is held that non-examination of the doctor is not fatal in a case under Section 376 of IPC, when the solitary testimony of the prosecutrix is trustworthy and believable, the said judgment has no application to the facts of the present case. The facts of the case in the said reported judgment are distinguishable when compared to the facts of the present case. So, it is of no avail to the case of the appellant.
11. When a major girl aged about 20 years, who had a love affair with accused no.1 moved voluntarily with him and if she Page 5 of 7 Uploaded by R.S. MALEK(HC00180) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:59:05 IST 2025 NEUTRAL CITATION R/CR.A/1304/2023 ORDER DATED: 03/07/2025 undefined had any voluntary sexual intercourse with him, as rightly held by the trial Court, no case under Section 365 or 376 of IPC is made out from the facts of the case. For the same reasons, no case under Section 504, 506 (2) and 114 of IPC is also made out from the facts of the case.
12. The trial Court after considering the evidence on record and proper appreciation of the same arrived at a right conclusion and acquitted the accused. Upon considering the said evidence on record and on reappraisal of the same, we are also of the considered view that no case is made out for any of the charges that are levelled against them.
13. It is settled law that when the judgment of the trial Court in acquitting the accused is based on proper appreciation of evidence on record and when the findings recorded by the trial Court are not perverse, the appellate Court would be slow in interfering with the said judgment of acquittal, and unless the findings are perverse based on erroneous appreciation of evidence, the appellate Court will not interfere with the said judgment of acquittal. Upon considering the facts and circumstances of the case and the evidence on record, we Page 6 of 7 Uploaded by R.S. MALEK(HC00180) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:59:05 IST 2025 NEUTRAL CITATION R/CR.A/1304/2023 ORDER DATED: 03/07/2025 undefined absolutely find no valid legal ground to entertain this appeal, even to admit the same for hearing. Therefore, the appeal fails and same is liable to be rejected.
14. Resultantly, the appeal is dismissed at admission stage.
15. Before parting with the matter, we would like to make it clear that we are not going into the disputed question of fact relating to the forceful marriage, alleged to have taken place between the accused no.1 and the prosecutrix, as contended by learned counsel for the appellant. A divorce case is pending in the Civil Court. Therefore, we are not going into the merits of the said contention relating to validity of the said marriage. It is left open for the parties to pursue their remedy in the competent Civil Court relating to validity of the said marriage.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J) Sd/-
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