Gujarat High Court
State Of Gujarat vs Rajesh Alias Raju Mahendrabhai Shah on 6 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1155 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RAJESH ALIAS RAJU MAHENDRABHAI SHAH & ANR.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
MR MANRAJ A BAROT(6224) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 06/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is filed by the State of Gujarat against judgment and order of acquittal dated 13.05.2013 passed by the Additional Sessions Judge, City Civil and Sessions Court No.10, Ahmedabad in Sessions Case No.274 of 2010. By the said judgment, the Sessions Court acquitted the respondents-accused for offences under Sections 376, 506(2) and 114 of the Indian Penal Code.
2. It is a case where the complainant has alleged that 15 days prior to the date of incident, her cousin brother-Mukeshbhai- Page 1 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025
NEUTRAL CITATION R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025 undefined accused No.2 had told the complainant that she is required to do household work and also cooking at the home of one Raju Jain- accused No.1 and for that, she would get Rs.2,000/-. However, she refused for that. Thereafter, the both left the place. After that, at about 8.00 pm, accused No.1-Raju Jain had come again and asked the complainant to come to his home, but the complainant told that she would come in the morning. On the next day morning, the complainant went to Raju Jain's home and come back. On Monday, the complainant was having holiday in factory and therefore, she was sitting at the home of one Madhulal and at about 04;00 pm, Raju Jain had come there and asked the complainant to come to his home, but she refused to come. However, he forcibly took the complainant to his home and kept her there for one week. During that period, the complainant was sleeping on the terrace and Raju was sleeping in the home. Thereafter, on 17.06.2009, in the night hours, when the complainant was sleeping in the home, at about 12;00, Raju had come there and slept with her and asked her to take divorce from her husband and that he would marry her, but the complainant refused to do that, upon which Raju forced himself upon her, but the complainant had refused to that. Still, however, Raju forcibly had intercourse with her two times in the night and told her that if she informs about this incident to anybody, she would be killed and it would be very difficult for her to stay in Ahmedabad. Due to fear, she stayed at Raju's home and thereafter, Page 2 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025 NEUTRAL CITATION R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025 undefined on 28.06.2009, at 04;00 pm, she left the house of Raju and filed complaint.
3. Learned APP for the appellant-State submitted that to prove the case against the respondents-accused, the prosecution had examined 8 witnesses and produced 14 documentary evidences. However, the Sessions Court has not properly appreciated the same in its true perspective. 3.1 It is submitted that in the present case, the victim- complainant has fully supported the case of prosecution and narrated how the incident had taken place. However, the Sessions Court has totally discarded and disbelieved the evidence of the victim-complainant and come to conclusion that the prosecution has failed to prove the case beyond reasonable doubt. 3.2 It is submitted that the prosecution has proved evidences like panchnama of scene of offence, Exh.12, panchnama of clothes of victim, Exh.14, FSL serological report, Exh.36, etc. to prove the case against the respondents-accused, which are not properly appreciated by the Sessions Court. 3.3 It is submitted that the offence was committed against the consent of the victim-complainant and that there is no reason for her to falsely implicate the accused. However, the Sessions Court has disbelieved the case of the prosecution by giving undue Page 3 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025 NEUTRAL CITATION R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025 undefined importance to some infirmities and contradictions. 3.4 It is submitted that the Investigation Officers have fully supported the case of the prosecution however, the Sessions Court has discarded the evidence of these witnesses. 3.5. It is submitted that the testimony of the medical officers support the case of the prosecution and it is coming out that the rape was committed by accused No.1 and the accused caused injuries to the victim. However, the Sessions Court has not considered the said evidences.
4. As against this, learned Advocate for the respondents- accused supported the impugned judgment and order of acquittal and submitted that though the incident is alleged to have happened on 17.06.2009, the complaint was filed on 28.06.2009. It is submitted that it is the say of complainant herself that after the alleged incident also, she stayed at the home of accused No.1-Raju Jain for a week. This itself speaks about the unnatural conduct of the victim-complainant.
4.1 It is submitted that moreover, though time and again summons were issued to the complainant and served upon her, she has not turned up to depose before the Sessions Court and therefore ultimately, she was not examined and therefore, APP gave pursis Exh.14, declaring closing of his evidence. Page 4 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025
NEUTRAL CITATION R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025 undefined 4.2 It is submitted that in the medical evidence also, it is clearly coming out that no rape was committed on the complainant as there are no stains or injury marks found on the vaginal. Therefore, it casts doubt on the complaint itself.
5. Having heard learned Advocates for the parties and having perused documents on record, it appears that it is a case where the alleged incident, though had taken place on 17.06.2009, the complaint was filed on 28.06.2009. It also appears that though time and again summons were issued to the complainant, she did not turn up to give her version and therefore, she was not examined at all. Moreover, in the cross-examination of the officer who recorded the complaint, Rameshbhai Ramabhai Rathva, PW No. 8, Exh. 37, he has stated that no reason was given by the victim-complainant for the delay in filing the complaint.
6. During trial, the prosecution examined following witnesses:-
Sr. Name of the witness PW Exh.
No. No. No.
1 Mangilala Jogaji Desai 1 11
2 Rampal Bhikhubhai Yadav 2 13
3 Dinesh Ratansinh Thakor 3 19
4 Dr. Kinjal Hasmukhrai Doshi 4 25
5 Dr. Jayant N. Solanki 5 27
6 Jashvantsing Babaji Rana 6 30
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NEUTRAL CITATION
R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025
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7 Merubha Sursing Singha 7 31
8 Rameshbhai Ramabhai Rathva 8 37
6.1 Through the aforesaid witnesses, the prosecution
brought on record the following documentary evidence:-
Sr. Particulars Exh.
No. No.
1 Charge 7
2 Panchnama of place 12
3 Panchnama of clothes of victim 14
4 Panchnama of clothes of accused 20
5 FSL serological report 36
6 Complaint 38
7 Judgment 42
7. Dr.Jayant N.Solanki, PW No.5, Exh.27 was the Medical Officer, who examined the victim-complainant on 01.07.2009. He has deposed that there were no injury marks, stains or sperm on the internal part of body of the victim or on her clothes. Therefore, at the first instance, it appears to the Court that any rape was committed on the complainant.
8. Dr.Kinjal Hasmukhrai Doshi, PW No.4, Exh.25 was the Medical Officer, who examined accused No.1. She has also deposed that there were no injury marks, stains or sperm on the body or clothes of the accused.
9. Mangilala Jogaji Desai, PW No.1, Exh.11 is the panch Page 6 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025 NEUTRAL CITATION R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025 undefined witness of the panchnama of place of incident. However, he has not supported the case of prosecution. In the cross-examination also, he has not supported the case of prosecution.
10. Rampal Bhikhubhai Yadav, PW No.2, Exh.13 is the panch witness of the panchmana of clothes of the victim and Dinesh Ratansinh Thakor, PW No. 3, Exh. 19 is the panch witness of the panchnama of clothes of the accused. Both these witnesses have not supported the case of the prosecution. In the cross- examination also, both these witnesses have not supported the case of the prosecution.
11. Though the argument on behalf of the State would be to base conviction on certain scientific evidences which are available like serological report from the FSL, etc., it is trite that the conviction cannot be based on the evidence which is meant for corroboration in absence of substantive piece of evidence.
12. In case of Bhaskarrao & Ors. Vs. State of Maharashtra, reported in 2018 (6) SCC 591, the Apex Court In case of Bhaskar Rao and Another (supra), in para-23, the Apex Court has observed as under:-
"23. Before we proceed to analysis of the case, we must first focus on the aspect concerning the standard the High Court has to apply, while hearing a case Page 7 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025 NEUTRAL CITATION R/CR.A/1155/2013 JUDGMENT DATED: 06/05/2025 undefined against an acquittal order of the trial court. In the case on hand, the trial court, followed by a full-edged trial, comes to the conclusion and by cogent reasoning acquits the accused. In such a case the appellate Court is further burdened with the task of rearming the innocence of the accused. In such cases, the appellate Court is expected to be very cautious and its interference with the order of acquittal is called for only when there are compelling reasons and substantial grounds. In other words, the High Court has full power to review the evidence upon which an order of acquittal is founded, yet the presumption of innocence of the accused being further reinforced by his acquittal by the trial Court, the findings of that Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons [refer Surajpal Singh & Ors. v. The State, 1952 CriLJ 331]."
13. In view of the aforesaid discussion, the Court is not inclined to interfere with the impugned judgment and order. The appeal therefore deserves to be and is hereby dismissed.
14. Bail bonds stand cancelled. R & P to be sent back to the concerned trial Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SHITOLE Page 8 of 8 Uploaded by SHITOLE MANISH P.(HC00188) on Mon May 12 2025 Downloaded on : Mon May 12 21:53:56 IST 2025