Gujarat High Court
State Of Gujarat vs Jitendrabhai @ Jitu Goklabhai ... on 7 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 298 of 2025
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
JITENDRABHAI @ JITU GOKLABHAI CHAUDHARI
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Appearance:
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
BHISHMA A. RAWAL(12270) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 07/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The State has preferred the present appeal under Section 419(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the judgment and order dated 25.07.2024 passed by the Special Judge (POCSO Case) and 2nd Additional Sessions Judge, Surat in Special (POCSO) Case No. 79 of 2022. By the impugned judgment and order, the accused person was acquitted from the offense under Sections 344, 354(d), 363, 366, 376, 376(2)(j)(n) and 506(2) of the Indian Penal Code and under Sections 3(a)(c), 4, 5(l), 6, 7, 8, 11(4) and 12 of the POCSO Act.
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2. The case of the prosecution is that despite the accused having knowledge that the victim's daughter, aged 17 years and 3 months at the time of the incident, was a minor and legally incapable of giving valid consent, he intentionally seduced her, lured her into a purported marriage, and engaged in conversations with her. It is further alleged that the accused expressed his intent to marry the victim and threatened her stating that he would kill himself if she refused to marry him and thereby, the accused compelled the victim to run away with him. It is alleged that between 00:15 hrs and 02:00 hrs on 22.02.2022, the accused deceitfully induced the victim under the pretext of marriage and against the legal guardianship of the complainant, with the intention of committing rape. The accused is stated to have forcibly raped the victim on three occasions and thereby repeatedly subjected the victim to rape. Furthermore, the accused is alleged to have wrongfully confined the victim for a period of ten days and during such period, committed aggravated penetrative sexual assault, penetrative sexual assault, sexual assault, and sexual harassment upon the victim. In light of the foregoing, the accused has thereby committed offences punishable under Sections 344, 354(d), 363, 366, 376, 376(2)(j)(n), and 506(2) of the Indian Penal Code, as well as Sections 3(a), 3(c), 4, 5(1), 6, 7, 8, 11(iv), and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The case has been registered at Chowkbazar Police Station under i-C.R.No.11210012220227/2022.
3. Upon due investigation, the respondent accused person was arrested and chargesheeted and upon completion of necessary Page 2 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined procedure of providing with the documents of charge sheet under Section 207 of the Code of Criminal Procedure, the case came to be tried by Principal District and Sessions Judge, Surat.
4. Learned Additional Public Prosecutor submitted that the prosecution has submitted oral evidence of 14 witnesses who have been examined by the prosecution and has produced 42 documentary evidences. However, the trial Court has not appreciated these oral as well as documentary evidences which were supporting the case of prosecution.
4.1 It is submitted that the father of the victim PW-3, who is examined at Exh.29 has fully supported the case of the prosecution and has clearly narrated how the incident took place. Moreover, his evidence is also fully supported by the evidence of other prosecution witnesses. However, the trial Court has disbelieved and discarded this evidence. 4.2 Learned APP has submitted that the offense was committed against the consent of the victim by the accused person and that there is no reason for her to falsely implicate the accused person however, the trial Court has disbelieved the same by giving undue importance to some infirmities and contradictions.
4.3 Learned APP submitted that the school leaving certificate of the victim has been produced at Exh.35 which states the birth date of the victim as 25.11.2004 and the present incident occurred on 22.02.2022. Therefore, it transpires that on the date of incident, the age of the victim was about 17 years 2 months and 28 days which shows that the victim Page 3 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined was a minor at the time of incident. However, the trial Court has disbelieved and discarded this evidence.
4.4 Learned APP submitted that the testimony of the victim PW-6 examined at Exh.54 wherein she has fully supported the case of the prosecution and has clearly narrated how the incident took place. Moreover, her evidence is also fully supported by the evidence of other prosecution witness. However, the trial Court has disbelieved and discarded this evidence.
5. As against this, learned advocate for the respondent-accused submitted that as per the evidence adduced by the prosecution, a total of 14 witnesses have been examined by the prosecution. Out of these, 2 are panch witnesses, one of whom has been declared hostile by the prosecution, and the other is an acquaintance of the complainant. There are 5 police officials, 3 doctors, and one birth and death registrar. Three witnesses are the complainant, his wife, and the victim. Out of these, the mother of the victim has been declared hostile by the prosecution. Thus, the three main witnesses examined by the prosecution may be termed as interested witnesses. Despite the availability of independent witnesses in the matter, the prosecution has not examined any independent witnesses. Hence, in the present case, the prosecution has not led the evidence of any independent witnesses. The prosecution has relied solely on the testimony of relatives and acquaintances of the complainant, whose depositions also reflect multiple inconsistencies, rendering their testimony unworthy of credence and unreliable.
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5.1. It is submitted that the prosecution has not been able to prove beyond reasonable doubt that the accused had threatened the victim or that the victim had accompanied the accused due to fear. Furthermore, upon perusal of the entire evidence, the prosecution has also failed to prove beyond reasonable doubt that the victim was found at Indore Palda village. Additionally, the police witnesses and the investigating officer have not submitted any documentary evidence such as panchnama, entry in the local police station, or transit remand, etc., showing that the accused was apprehended from Indore Palda village. The defence, while cross-examining the police witnesses on this aspect, appears to have elicited satisfactory explanations. It is, therefore, evident that the victim did not accompany the accused against her will. 5.2 Learned advocate submitted that the prosecution has not been able to prove beyond reasonable doubt that the accused had sexual intercourse with the victim against her will. The medical evidence and documentary evidence from the FSL clearly established that no forcible physical relations were made with the victim against her will. Upon examining the evidence in the present case, it can be inferred that, if the victim accompanied the accused, it might have been of her own volition. The victim made no attempts to resist accompanying the accused. Moreover, the defence has established that there existed a love relationship between the accused and the victim. Further, in her cross- examination, the victim has admitted to having sent a letter written by her to the accused, which has been proved as per the provisions of the Indian Evidence Act. Upon reading the said letter into evidence, it Page 5 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined becomes clear that the victim's mother had become aware of the love relationship between the accused and the victim and that the victim had pressurised the accused to take her away with him, which is clearly proved. In this regard, the Biology Report submitted by the FSL Department from page 76 has also not supported the case of the prosecution.
5.3 Learned advocate lastly submitted that no semen of the accused was found on the clothes of the victim or in the samples collected from her. The prosecution has failed to demonstrate before the court, through cogent and convincing evidence, that the present accused has committed the alleged offence. The accused has no prior criminal history and has not been involved in any previous crime. The accused is currently of young age. The conduct of the accused during trial must also be taken into account. Considering the above submissions and the evidence on record, the prosecution has entirely failed to prove its case beyond reasonable doubt. According to the principles of law, however strong a suspicion may be, it cannot take the place of proof, and even the slightest doubt in the prosecution's case entitles the accused to an acquittal. Therefore, taking into consideration the above arguments and the evidence on record, in the alleged offence, the accused is not proved beyond reasonable doubt.
6. During the course of trial, the prosecution has examined the following witnesses:-
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NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined Sr Name of Witness PW Exh.
No No. No. 1. Rinkalben Kalubhai Bhalala 1 16 2. Sahdevbhai Ghanshyambhai Rathod 2 23 3. Father of the victim 3 29 4. Dr. Sonalben Rajan Valvi 4 39 5. Dr.Hirenbhai Dineshchandra Jadawala 5 45 6. Victim 6 54 7. Dr. Srushti Mayur Parmar 7 62 8. Mother of the victim 8 67 9. Nareshbhai Ghemarbhai Chaudhary 9 72 10. Arvindbhai Champakbhai Rathod 10 80 11. Mayurkumar Karnidan Gadhvi 11 84 12. Bakuleshbhai Vestabhai Gamit 12 96 13. Mehulkumar Valjibhai Kekani 13 98 14. Harshadbhai Mangalubyhai Sindhav 14 99
7. During the course of trial, the prosecution brought on record the following documentary evidences :-
Sr.No Particulars Exh.
. No.
1. Panchnama of seizure of clothes of the victim 17
2. Inquest panchnama and panchnama of clothes of the 18
accused
3. Panchnama of scene of offense 25
4. Complaint 30
5. School Leaving Certificate 35
6. FSL Report 76
7. Birth Certificate of the victim 82
8. FIR 94
8. The Court has heard learned advocates for the parties and perused the impugned judgment and order so also the documents on record. It appears, upon instructions obtained as on date by the learned Page 7 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined advocate for the respondent, that the respondent is unmarried. This specific observation is made in view of the version given by the presecutrix in her history given before the Medical Officer that after the respondent went back to his native and returned, at that time had had given an indication that he has now got engaged.
9. The Court has perused the evidence of the prosecutrix as PW-6 vide Exh.54, which is indicative of factum of affair which had taken place because of they were living in the neighbhourhood and such relationship being found out by the parents of the prosecutrix, was objected upon. Particular attention be paid to cross-examination of the prosecutrix, wherein relevant questions were put with regard to her version given in the examination in chief, which is an improvement of her version which otherwise came on record during the investigation in the form of her statement given to the Investigating Officer and statement recorded under Section 164 of the Code of Criminal Procedure. The relevant extracts of the cross-examination of the prosecutrix are as under:-
12. It is true that I have not stated in my police statement recorded in person that: "Jitu used to say, 'Come with me, or else I will circulate all your private photos among your friends and show them to your parents.'"
The witness voluntarily states that the police did not ask anything to that effect, hence it was not stated.
13. It is true that I have not stated in my police statement recorded in person that: "Jitu had not stopped the vehicle anywhere; I kept telling him that I needed to go home, to which Jitu responded that 'your mother will beat you and get angry.'" Page 8 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025
NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined The witness voluntarily states that no such question was asked, hence it was not conveyed to the police.
14. It is true that I have not stated in my police statement recorded in person that: "I kept telling Jitu that I needed to go home, but he would not allow me to leave. There was no phone or anything of the sort, hence I could not make any call." The witness voluntarily states that she had answered only to the extent asked.
15. It is true that I have not stated in my police statement recorded in person that: "Jitu used to make me do household work. There was no money or anything of the sort.
The witness voluntarily states that the police had not asked anything to that effect, and therefore it was not stated.
10. This improvement is proved by the relevant questions put to the Investigating Officer PW-11-Mayurkumar Karnidan Gadhvi, where such improvements have been proved and therefore, the version of the prosecutrix was not a wholly reliable version. Therefore, the Court will necessarily have to look into the corroboration and therefore, the report of the FSL appears to be a proper evidence which can act as a corroboration in the facts of the present case. The Court has therefore, perused the FSL report at Exh.76, final conclusion given by the FSL with regard to the analysis report on the clothes of the victim, where no presence of semen or blood stain has been found. Therefore, there does not appear to be any scientific evidence available to corroborate the version given by the prosecutrix.
11. The factum of love affair is undeniable as even from the evidence of the prosecutrix herself, where she was questioned with regard to the Page 9 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined notings made on the Aadhar Card, which she has deposed in her cross- examination to have given to the accused person before eloping which contained noting in her own handwriting indicating that her parents were not agreeable to their relationship and therefore, she was hiding such relationship from her parents. She has also indicated that in such noting she has called upon the accused person to help her to elope and if the relationship is known to the parents, she will have no way, but to kill her.
12. The victim in her deposition has given an exaggerated version and the statements before the police were contradicted. The said exagerrated statements were proved in the evidence of the Investigating Officer at Exhibit - 84.
13. In view of such finding, the trial Court was justified in considering the victim as not a witness, who can be wholly reliable and therefore, further corroborations were essential to bring home the charge.
14. The Court has perused the evidence of the medical officer PW - 7, Dr. Shrushti Mayur Parmar, wherein also in the history given by the victim herself, which is recorded as under:-
"The victim stated the history in Gujarati and the witness also recorded the history in Gujarati. It was stated therein that the victim was acquainted with accused Jitendra since last six months. The accused and victim were residing in the same building on upper and lower floor. They were in love with each other. On 22/02/2022 at half past one o'clock at night, both of them willingly went to Paldha village of Madyapradesh on motorbike and stayed over there by renting a room with the support of a friend of the accused. Both of them willingly got married in a temple on 24/02/2022. Thereafter, the accused and the victim, with consent of each other, had frequent sexual intercourse using condom. They had last sexual Page 10 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined intercourse using condom on 07/03/2022. The accused and the victim stayed at Paldha for fifteen days. As the parents of the victim registered a complaint in the Police Station, the Police detained them from Paldha at 8.00 pm on 09/03/2022 and produced them in Chowkbajar Police Station at 08.00 am on 10/03/2022. The following marks were found during physical examination of the victim. Her vital parameters were normal. No injury marks of any kind were found on her body. She was in fully conscious state and she was aware about the time and place. Her secondary sexual characteristics were developed. No injury marks were found during examination of genital organs of the victim and her hymen was ruptured. Urine pregnancy test of the victim was negative. The following samples were collected from the body of the victim for analysis. Vaginal swab and urethral swab were collected. These samples were seal packed and handed over to WLR Anitaben for analysis. As per her opinion, on the basis of the history as well as the medical examination, no evidence was found of recent forceful vaginal penetration committed on the victim, but it cannot be denied that sexual intercourse was indulged into."
15. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. vs. State of Karnataka reported in (2007) 4 SCC 415, the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon Page 11 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025 NEUTRAL CITATION R/CR.A/298/2025 JUDGMENT DATED: 07/05/2025 undefined securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court.
16. The Court has perused the reasonings recorded by the learned Special Judge. The Court finds no reason to interfere with the same.
17. In the result, the appeal fails and is dismissed. The judgment and order of acquittal dated 25.07.2024 passed by the Special Judge (POCSO Case) and 2nd Additional Sessions Judge, Surat in Special (POCSO) Case No. 79 of 2022 stands confirmed. Bail and bail-bonds of the accused, if any, stand discharged. Records and proceedings be sent back to the concerned trial Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SIDDHARTH Page 12 of 12 Uploaded by SIDDHARTH(HC01065) on Fri May 09 2025 Downloaded on : Sat May 10 15:59:42 IST 2025