Gujarat High Court
Kantibhai Arjanbhai Bharvad vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 438 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
✔
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KANTIBHAI ARJANBHAI BHARVAD
Versus
STATE OF GUJARAT
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Appearance:
MR. KIRTAN MISTRY for the Appellant(s) No. 1
MR. HARSHRAJSINH S VAGHELA(8538) for the Appellant(s) No. 1
MR. HEMANG S BHARWAD(8288) for the Appellant(s) No. 1
MR. CHIRAG B UPADHYAY(6735) for the Appellant(s) No. 1
MR. TIRTHRAJ PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 17/07/2025
ORAL JUDGMENT
1. The present appeal has been preferred by the appellant - convict (i.e. the original accused) under Section 374 of the Code of Criminal Procedure, 1973, and is directed against the judgment and order of conviction and sentence dated 01.02.2020 passed by the learned Special (POCSO) Judge, Aravalli at Modasa, in Special (POCSO) Case No.28 of 2018. Page 1 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025
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2. By the aforesaid judgment and order of conviction, the present appellant-accused has been held guilty and convicted for the offence punishable under Section 376 of the Indian Penal Code, and consequently, he has been sentenced to undergo rigorous imprisonment for ten years along along with a fine of Rs.10,000=00, and in making default of payment of fine, to undergo further simple imprisonment for six months. The trial court, however, acquitted the present appellant-accused from the charge for the offences punishable under Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act.
The prosecution version, in a nut-shell, is as follows :
3. The case of the prosecution, in a nutshell, is that on 21.03.2018 at around 12:30 in the afternoon, the appellant-
convict, an occultist ('Bhuva' - Trantrik), known to the prosecutrix and her in-laws, took the prosecutrix (PW-15) and her husband (PW-11) to the Vatrak river near Malpur village under the pretext of performing rituals for the betterment of their family. The appellant-convict then told the husband of the Page 2 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined prosecutrix to go to Modasa for offering the holy water of Vatrak river into Majun river in Modasa. It is alleged that taking disadvantage of the loneliness of the prosecutrix, the appellant- convict took her to the ravine (i.e. a secluded place near a river), and under the pretext of making her to take an oath, he tied the hands of the prosecutrix with her sari, cover her mouth by his hand and by forcibly pushing her on the ground, he committed rape on the prosecutrix against her will and then fled away.
4. On the statement of the prosecutrix, a complaint in this regard came to be filed against the appellant-convict on the very same day, i.e. on 21.03.2016, which was registered as I-CR No.17 of 2018 before the Malpur Police Station, District Aravalli, for the offences punishable under Sections 4, 8, 12 of the POCSO Act as well as under Section 376 of the Indian Penal Code.
5. After the registration of the FIR, the Investigating Officer carried out the investigation, and during the investigation, the statements of the relevant witnesses conversant with the alleged offence were recorded, necessary panchnamas were drawn, Page 3 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined several documentary evidence were collected, and after having found adequate evidence against the present appellant-convict, he was arrested and a charge-sheet came to be filed against him, which was registered on 14.06.2017.
6. The Charge was framed on 03.11.2018 vide Exh.12 against the appellant-convict for the offences punishable under Sections 4, 8, 12 of the POCSO Act as well as under Section 376 of the Indian Penal Code, whereupon the accused pleaded not guilty and claimed to be tried.
7. To bring home the charge, the prosecution had examined 18 witnesses and adduced 27 documentary evidence in support of its case, which are as follow :
WITNESSES WITNESS NAME EXH.
1. Dr.Mehul Devkaranbhai Patel, Medical Officer 14
2. Amrutbhai Sukhabhai Kotwal, Panch Witness 19
3. Arvindgiri Surajgiri Goswami, Panch Witness 26
4. Dr.Pratikshaben Kantilal Damor, Medical Officer 36
5. Vishnugiri Sukhlalgiri Goswami, Panch Witness 45
6. Ajitsinh Jagatsinh Rathod, Panch Witness 47
7. Himmatsinh Arjunsinh Chauhan, Panch Witness 49 Page 4 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined
8. Jigneshbhai Natubhai Parmar, Panch Witness 51 9. Rajeshbhai Rameshbhai Bharwad, Panch 53 Witness 10. Hanumansinh Jashwantsinh 54 11. Yuvrajsinh Natwarsinh Chitroda 55 12. Jawansinh Jashwantsinh Rathod 56 13. Bharatsinh Jashwantsinh Rathod 57 14. Bhavnaben Natwarsinh Chitroda 58 15. Victim/Complainant 59 16. Jayantibhai Kodarbhai, P.S.O. 62 17. Ketanbhai Dilipbhai Brahmbhatt, I.O. 65 18. Maheshkumar Bachudan Gadhvi, I.O. 72 DOCUMENTARY EVIDENCE WITNESS NAME EXH.1. Original Refer Chit 15 2. Original Case-Papers of the Victim 16
3. Certificate of Medical Examination of the Victim 17 4. H.I.V. and U.P.T. Report of the Victim 18
5. Seizure Panchnama of the clothes of the Victim 20 6. Panchnama of the scene of offence 27
7. Police Yadi for Medical Examination of the 37 Accused 8. Original Case-Papers of the Accused 38
9. Yadi regarding the sample of the Accused sent to 39 the F.S.L.
10. Certificate regarding the Medical Examination of 40 the Accused
11. Police Yadi for the Medical Examination of the 41 Victim 12. Original Case-Papers of the Victim 42 Page 5 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined
13. Yadi regarding the sample of the Victim sent to 43 the F.S.L.
14. Certificate regarding the Medical Examination of 44 the Victim.15. Panchnama of the person of the Accused 48
16. Panchnama of the Scene of Offence shown by the 50 Accused
17. Seizure Panchnama of the Bolero Jeep used in 52 the commission of the Offence 18. Original Complaint of the Offence. 60
19. Statement of the Accused u/s.164(5) of the 61 Cr.P.C.
20. True copy of the Police Station Diary 6321. Original List 64 22. F.S.L. Report 66
23. Birth Certificate from the School of the Victim 67 24. Outward Form of the Muddamal 68 69
25. Original Receipt of the Muddamal by the F.S.L. 70 71 26. Forwarding Letter of the F.S.L. 73 27. Serological Report from the F.S.L. 74
8. After completion of the evidence, the further statement of the appellant-convict was recorded under Section 313 of the Code of Criminal Procedure and the appellant-convict had explained the incriminating circumstances that he had lent some amount of money to the husband of the prosecutrix and he was not repaying the same. Therefore, to avoid repayment of the said amount, they have falsely implicated him in the alleged offence. Page 6 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025
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9. On completion of the trial, the trial court found the appellant-convict guilty of the charge for the offence punishable under Section 376 of the Indian Penal Code, and consequently, sentenced him to suffer rigorous imprisonment for ten years vide judgment and order dated 01.02.2020 passed in Special (POCSO) Case No.28 of 2018.
10. While holding the appellant-convict guilty for the alleged offence, the trial court observed that the prosecution has proved the case against the appellant-convict beyond reasonable doubt through cogent and convincing evidence of the victim (PW-15), which is in corroboration with the medical evidence, forensic evidence as well as documentary and ocular evidence of the other witnesses.
11. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence, the appellant-convict has preferred the present appeal before this Court. SUBMISSION ON BEHALF OF THE APPELLANT-ACCUSED:
12. Learned advocate Mr.Kirtan Mistry appearing with learned Page 7 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined advocate Mr.Hemang Bharwad appearing for the appellant- convict has vehemently and fervently contended that the entire case of the prosecution is false and fabricated. It is submitted that since the prosecution failed to establish the age of the victim, the appellant-convict was acquitted from the charged for the offences punishable under the POCSO Act. It is further submitted that the entire case of the prosecution is based upon the evidence of the prosecutrix, which is not at all reliable and trustworthy, and the same cannot be said to be of sterling quality since it suffers from material contradictions and is doubtful. Therefore, the same could not have been relied upon by the trial court. It is also submitted that the evidence of the prosecutrix cannot be said to be in corroboration with the medical evidence as she was already married. Further, there is no evidence of any slightest injury on the person of the prosecutrix. Mr.Mistry has vociferously submitted that, admittedly, the blood/semen samples of the husband of the prosecutrix were not collected and sent to the FSL for examination and matching with the biological samples of the prosecutrix as well as the accused and, therefore, the scientific evidence, more particularly, the serological evidence cannot give Page 8 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined any headway to the case of the prosecution. It is submitted that even from the FSL and serological report, no incriminating evidence has come forth against the appellant-convict, which clearly suggests that the group of the blood/semen samples of the appellant-accused could not be detected. Learned advocate has further submitted that it reflects from the evidence including the panch-witnesses of various panchnamas that all other witnesses are the relatives of the maternal uncle of the husband of the prosecutrix and, therefore, they being interested witnesses, their evidence could not have been relied upon by the trial court.
13. In support of his submissions, learned advocate Mr.Mistry has relied upon the following case-laws :
(i) Santosh Prasad @ Santosh Kumar vs. State of Bihar, reported in (2020) 3 SCC 443; and
(ii) Lilia @ Ram Swaroop vs. State of Rajasthan, reported in (2014) 16 SCC 303.
14. Considering the aforesaid, learned advocate Mr.Mistry has urged that the judgment of the trial court is required to be interfered with and has implored the court to allow the present appeal, set-aside the impugned judgment and direct the Page 9 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined acquittal of the appellant-convict from the charges levelled against him.
SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE :
15. Vehemently opposing the present appeal and the submissions advanced by learned advocate Mr.Kirtan Mistry for the appellant-convict, learned APP Mr.Tirthraj Pandya appearing for the respondent-State has submitted that the conviction and sentence imposed by the trial court do not call for any interference by this Court since the trial court, after appreciating the evidence; both, ocular as well as documentary, has convicted the present appellant for the charges levelled against him. Mr.Pandya has submitted that the prosecution has proved all the essential elements of the alleged offence through cogent and convincing evidence.
16. Learned APP Mr.Pandya has submitted that ordinarily the evidence of the prosecutrix should not be doubted and should be believed, and if the evidence is reliable, no corroboration is necessary. He has submitted that in the case on hand, the evidence of the prosecutrix is quite reliable and trustworthy and, Page 10 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined therefore, the same has rightly been relied upon by the trial court. It is submitted that the medical evidence, forensic evidence as well as the evidence of all other witnesses are in corroboration with the evidence of the prosecutrix. Thus, it is urged that the conviction and sentence recorded by the trial court do not warrant interference by this Court and, therefore, the appeal is required to be dismissed.
ANALYSIS AND FINDINGS :
17. Before adverting to the facts and circumstances of the case, it would be apt to refer to the following case-laws, wherein the Supreme Court has set-out the powers of the appellate court :
(i) In Jogi and others vs. State of M.P., reported in (2021) 4 CriCC 524, it has been held by the Supreme Court that while exercising appellate jurisdiction, the High Court is required to evaluate the evidence on record independently and to arrive at its own findings as regards the culpability or otherwise of the accused on the basis of the evidentiary materials.Page 11 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025
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(ii) In Padam Singh vs. State of Uttar Pradesh, reported in AIR 2000 SC 361 = (2000) 1 SCC 621, it has been held by the Supreme Court that it is the duty of the appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not, and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court like the trial court has to be satisfied affirmatively that the prosecution case is substantially true and guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. The judicial approach in dealing with the case where an accused is charged of murder under Section 302 has to be cautions, Page 12 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all relevant and material circumstances, before upholding conviction.
(iii) In Amar Sardar vs. State of West Bengal, reported in 2024 INSC 1040, it has been held by the Supreme Court that while hearing the appeals under Section 374(2) of the Code of Criminal Procedure, 1973, the High Court is exercising its appellate jurisdiction. There shall be independent application of mind in deciding the criminal appeal against conviction. It is the duty of an appellate court to independently evaluate the evidence presented and determine whether such evidence is credible. Even if the evidence is deemed reliable, the High Court must further assess whether the prosecution has established its case beyond reasonable doubt. The High Court though being an appellate Court is akin to a trial court, must be convinced beyond all reasonable doubt that the prosecution's case is substantially true and that the guilt of the accused has been conclusively proven while considering an appeal against a conviction.
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NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined The necessity of this exercise arises from the fact that a conviction curtails the personal liberty of the accused in the incessant future. Hence, the High Court must provide clear reasons for accepting the evidence on record. Mere concurrence with the findings of the trial court is insufficient unless supported by a well-reasoned independent justification. As the first appellate court, the High Court is expected to evaluate the evidence including the medical evidence, statement of the victim, statements of the witnesses and the defence's version with due care.
18. Bearing in mind the aforesaid settled legal position, the evidence of the instant case are required to be appreciated. Further, considering the gravamen and severity of the offence, the court has carefully scaled the entire evidence on record. The only worthwhile evidence which has been produced by the prosecution is the deposition of the prosecutrix herself. It is noteworthy that the victim, who herself is the complainant, in her complaint dated 21.03.2018 (Exh.60) has specifically stated that she got married with her husband (PW-11) on 16.05.2017 (i.e. almost one year prior to the alleged incident). As noted Page 14 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined earlier, since the prosecution had failed to establish through cogent and convincing evidence that the victim was minor at the time of the alleged incident, the trial court acquitted the appellant-convict from the charge for the offences punishable under Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act.
19. The prosecutrix (PW-15), in her evidence at Exh.59 has stuck to the fact that on the fateful day of the incident (i.e. on 21.03.2018 at around 12:30 in the afternoon), the appellant- convict, a 'tantrik' (an occultist), who was known to the prosecutrix and her in-laws, took the prosecutrix (PW-15) and her husband (PW-11) to the Vatrak river near Malpur village under the pretext of performing rituals for the betterment of their family. The appellant-convict then told the husband of the prosecutrix to go to Modasa for offering the holy water of Vatrak river into Majun river in Modasa. It is alleged that taking disadvantage of the loneliness of the prosecutrix, the appellant- convict took her to the ravine (i.e. a secluded place near a river), and under the pretext of making her to take an oath, he tied the hands of the prosecutrix with her sari, cover her mouth by his Page 15 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined hand and by forcibly pushing her on the ground, he committed rape on the prosecutrix against her will and then fled away. The prosecutrix further stated that after she managed to untie and free herself, she went towards the road, where she found the appellant-convict waiting near the Malpur Police Station with his vehicle and then he made her sit in the vehicle. Later on, when her husband arrived at the place, he gave Rs.500=00 to the appellant-convict for the rituals, out of which, the appellant- convict gave Rs.100=00 to the prosecutrix and then left away. Subsequently, the prosecutrix informed her husband about the entire incident, after which, the husband of the prosecutrix contacted his maternal uncles (PW-10) Hanumansinh Jashwantsinh Rathod and (PW-12) Jawansinh Jashwantsinh Rathod. Thereafter, after due deliberations, the complaint was filed at the Malpur Police Station regarding the alleged incident. The evidence reveals that on the very day of the incident, the FIR was registered at the Malpur Police Station at around 21:30 hours and the prosecutrix was examined by the Medical Officer (PW-1) Dr.Mehul Devkaranbhai Patel on 22.03.2018 at around 1:00 p.m. The medical examination reveals that the prosecutrix had sustained no injuries and no marks of any injury was Page 16 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined detected on her person, though it was stated in the medical report that her hymen was torn. The Medical Officer Dr.Mehul Devkaranbhai Patel, in his evidence at Exh.14 during his cross- examination, has specifically elicited that if a woman's hands are tied and she is forcibly subjected to intercourse, injuries are likely to be seen on her elbows, hips, shoulder, back and legs. The evidence further reveals that the prosecutrix was also examined by the Medical Officer (PW-4) Dr.Pratikshaben Kantilal Damor. The medical examination of the prosecutrix by this witness also reveals that no mark of any external or internal injury was found on the person of the prosecutrix. This witness has also elicited in her cross-examination that if a woman is forcibly subjected to intercourse, and if she resisted, there are all chances of her receiving injuries. Thus, the evidence of both the Medical Officers clearly reveals that not a slightest injury or even an abrasion was noticed on the person of the prosecutrix.
20. It is also noteworthy that as per the evidence of the prosecutrix, after the alleged incident, when she approached towards the road, she found the appellant-convict with his vehicle waiting for her near the Malpur Police Station and he Page 17 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined made her sit in the vehicle till her husband arrived at the place. However, she had not made any hue and cry nor she approached the police though the Police Station was just opposite the road. It is also to be noted that even after she informed her husband about the incident, instead of immediately filing the complaint at the Malpur Police Station, they went to village Aniyor and thereafter at Dhansura and in the late evening at around 9:30 p.m., they had filed the complaint at the Malpur Police Station. The testimony of the prosecutrix and the medical evidence on record if read in juxtaposition with the conduct of the prosecutrix and her husband, the version of the prosecution seems to be improbable and doubtful.
21. It is settled that in the case of rape, the testimony of the victim is very crucial piece of evidence to prove the case against the accused, and if the evidence of the victim is found to be of sterling quality, then there is no requirement under law to insist for further corroboration. However, the court is not required to accept the testimony of the victim if the same is improbable and doubtful. It cannot be taken as a gospel truth in all circumstances and with no exception. It is submitted that if the Page 18 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined evidence of the victim woman on its face value appears to be doubtful, the court has to look for the corroboration, and if two views are possible on the evidence adduced by the prosecution, the view which is favourable to the accused should be adopted. (See Rajoo and others vs. State of Madhya Pradesh, reported in AIR 2009 SC 858 and Kali Ram vs. State of Himachal Pradesh, reported in AIR 1973 SC 2773 as well as of this Court in the case of State of Gujarat vs. Farukhbhai Ahmedbhai Shaikh, reported in (1997) 2 GLR 1400)
22. Similar ratio has been laid down by the Supreme Court in the case of State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384, wherein the Supreme Court observed thus :
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
23. This was reiterated by the Supreme Court in the case of Sadashiv Ramrao Hadbe vs. State of Maharashtra and Page 19 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined another, reported in (2006) 10 SCC 92, as under :
"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 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."
24. In the case of Tameezuddin alias Tammu Versus State (Government of NCT of Delhi), reported in (2009)15 SCC 566, the Supreme Court has held as under :
"It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
25. Having scaled the entire evidence in light of the aforesaid guiding principles, this Court is of the considered opinion that the version put forth by the prosecutrix is highly doubtful, inconsistent, full of contradictions and not corroborated by the Page 20 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined medical as well as forensic evidence. If the statement made by the prosecutrix and the evidence of both the Medical Officers (PW-1) Dr.Mehul Devkaranbhai Patel and (PW-4) Dr.Pratiksha Kantilal Damor are read in juxtaposition with the forensic evidence, they pose a serious doubt about the correctness and truthfulness of the story narrated by the prosecution.
26. As discussed herein above, the Supreme Court, in the above referred judgments, has made it clear that in case of rape, the conviction can be made on the sole testimony of the prosecutrix as her evidence is in the nature of an injured witness, which is given a very high value by the court, but, nevertheless, when a person can be convicted on the testimony of a single witness, the courts are bound to be very careful in examining such a witness and, thus, the evidence of the prosecutrix must be of sterling quality.
27. The Supreme Court, in the case of Rai Sandeep @ Deepu vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, has held that sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The court Page 21 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined 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. The relevant paragraph is reproduced herein below :
"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 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 Page 22 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined 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 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."
33. In the instant case, the evidence of the prosecutrix, if read as a whole, along with the medical evidence and also considering the conduct of the prosecutrix as well as her husband, it does not inspire confidence. Further, the manner and method in Page 23 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined which the incident had occurred, the version put forth by the prosecution is not palatable or believable. It is noteworthy that the evidence of other material witnesses cannot be relied upon since all the witnesses, including the panch-witnesses, are the relatives of the maternal uncle of the husband of the prosecutrix and they appear to be interested witnesses. Further, the FSL report also does not reveal any connecting evidence. It appears from the report that during the examination, the presence of blood/semen was noticed on the clothes of the prosecutrix and on the inner-wear of the appellant-accused. However, since the group of the blood/semen samples of the accused could not be detected, the same cannot be considered as a corroborative piece of evidence. It is noteworthy that the prosecutrix is already married and no biological samples of her husband were also collected by the Investigating Officer for the examination through the FSL. It is also noteworthy that the clothes of the appellant- accused were seized after ten days of the incident of his arrest. This also cast a shadow on the version of the prosecution.
34. In view of the above, this Court is of the considered opinion that the solitary version of the prosecutrix cannot be taken as a Page 24 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025 NEUTRAL CITATION R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025 undefined gospel truth on its face value, and in absence of any cogent, convincing and supporting evidence, the conviction cannot be sustained.
35. On the facts and in the circumstances of the case as well as for the reasons stated herein above, the appeal succeeds and the same is hereby allowed. The impugned judgment and order of conviction and sentence dated 01.02.2020 passed by the learned Special (POCSO) Judge, Aravalli at Modasa, in Special (POCSO) Case No.28 of 2018 is hereby quashed and set-aside. The appellant-convict (i.e. the original accused) shall be set at liberty forthwith, if not required in any other case.
36. Bail bonds shall stand cancelled. The amount of fine, if any, paid by the appellant-accused shall be refunded to him.
(VIMAL K. VYAS, J.) /MOINUDDIN Page 25 of 25 Uploaded by M.A. SAIYED(HC00172) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:29 IST 2025