Gujarat High Court
The State Of Gujarat vs Kana Naran Koli on 2 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2218 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
KANA NARAN KOLI & ORS.
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Appearance:
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR RC KAKKAD(389) for the Opponent(s)/Respondent(s) No. 1,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The State has assailed the order of acquittal
passed by the Ld. Additional Sessions Judge, 2 nd Fast
Track Judge, Veraval dated 09.04.2004 in Sessions
Case No. 98/1999, whereby, the Org. Accused
persons came to be acquitted for the offence
punishable under Section 363, 366, 376 and 114 of
the Indian Penal Code.
2. At the outset, it is required to be noted that the
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Accused No. 3 - Respondent No. 3 herein namely
Veera Haja Ahir has expired on 15.12.2021 and the
report to that effect is submitted by the Ld. Advocate
for the Respondent - Org. Accused. Hence, Appeal qua
Respondent No. 3 has been abated.
3. Facts in the nutshell to decide the Appeal are as
follows:-
3.1 That the Complaint came to be filed by Naranbhai
Gavaliya who is the uncle of victim interaila
contending that victim was residing with her parents
at Gorakhmadi Village. That on the night of the
incident, i.e. on 13.11.1991 at about 8:00 p.m., the
present accused no.1 kidnapped the victim from the
lawful guardianship of the father of the victim. The
accused no.1 took victim by coxing and cajoling her
and also compelled her to marry with him. It is further
alleged that the accused no. 1 also had forcible
physical relation with the victim under the pretext of
marriage and against her will and wish. It is further
alleged that the accused no. 1 took the victim in the
car of accused no.2 who made arrangement for
residing there. Thus, the accused Nos. 2 and 3 are
facing the trial for abetting the offence. The
complainant came to be registered with Sutrapada
Police bearing CR - I - 93/1991 and after investigation,
charge sheet was presented before the concerned
Judicial Magistrate, Veraval which was registered
bearing Criminal Case No.863 of 1992. Since, the case
of Sessions triable, the Ld. Magistrate, Veraval
committed the said case to the Sessions Court. Ld.
Sessions Judge, vide Exh. 1 framed charges against
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the Accused on 21.01.2004. Plea came to be recorded
vide Exh. 2 to 4 respectively qua Respondent No. 1 to
3 who denied the charges and prayed for trial.
To bring home charges, the prosecution relied
upon the following witnesses and documentary
evidences.
Sr Particulars Exh.
No.
8 Panchnama regarding physical condition of victim 24
9 Pachanama of mudamal which is in the box sent 14
by the medical officer Veraval.
10 Panchnama regarding detention of Accused No. 1 26
11 Panchnama regarding detention of Accused No. 1 27
and 3
13 Medical Officer's Letter (Note) dated 15.11.1991 29
forwarded to the PSI, Sutrapada with regard to
forwarding eight piece mudamal.
15 Receipt forwarded by the FSL, Junagadh to PSI 31
Sutrapada
16 Letter of Municipal Hospital regarding medical 32
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17 Report forwarded by the FSL, Junagadh to PSI 33,34
Sutrapada
18 Result of Sirology testing of FSL, Junagadh 35
3.2 The prosecution vide Exh. 46 tendered purisish
closing their evidence. Thereafter, further statement
of the Accused under Section 313 of the CRPC came to
be recorded. After hearing the Ld. Advocate for the
respective parties, the Ld. Sessions Court has passed
the impugned judgment acquitting the accused of the
charges. Hence, the present Appeal.
4. Ld. Additional Public Prosecutor Ms. Monali Bhatt,
would contend that the Trial Judge has committed
serious error in not believing the deposition of the
victim, more particularly, the factum of accused No. 1
and victim having brought at Village Gorakhmadhi by
the Complainant Narayanbhai under such
circumstances, coupled with the fact that they were
about to get marry and were caught near the Court.
The Court has committed grave error in not convicting
the present Accused. That the Trial Court has given
much weightage to the birth certificate vide Exh. 42,
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where some scoring is found and hence, despite the
deposition fo the mother of the victim and victim
herself which proves that on the date of incident, she
was minor, the Trial Court ought not to have acquitted
the accused under Section 363 and 366 of the IPC.
Lastly, it is argued that the Trial Court has not
appreciated oral as well as documentary evidence in
its true perspective and hence, argued to allow the
Appeal.
5. At the outset, it would be profitable to refer the
judgment of the Hon'ble Supreme Court in the case of
Constable 907 Surendra Singh vs State Of Uttarakhand
reported in (2025) 2 SCR 239 wherein it is held that:-
"11. Recently, in the case of Babu Sahebagouda Rudragoudar and
others v. State of Karnataka, a Bench of this Court to which one of
us was a Member (B.R. Gavai, J.) had an occasion to consider the
legal position with regard to the scope of interference in an appeal
against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down
by this Court governing the scope of interference by the High Court
in an appeal filed by the State for challenging acquittal of the
accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v.
State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31]
encapsulated the legal position covering the field after considering
various earlier judgments and held as below : (SCC pp.482-83, para
29) 6 (2024) 8 SCC 149
29. After referring to a catena of judgments, this Court culled out
the following general principles regarding the powers of the
appellate court while dealing with an appeal against an order of
acquittal in the following words :(Chandrappa case [Chandrappa v.
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State of Karnataka, (2007) 4 SCC 415 :(2007) 2 SCC (Cri) 325] ,
SCC p.432, para 42)
42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re appreciate and
reconsider the evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both
on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling
reasons", "good and sufficient grounds", "very strong
circumstances", "distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of an appellate court in
an appeal against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
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"40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara
v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748]
this Court summarised the principles governing the exercise of
appellate jurisdiction while dealing with an appeal against acquittal
under Section 378CrPC as follows : (SCC p. 584, para 8)
"8. ... 8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal,
is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal,
after reappreciating the evidence, is required to consider whether
the view taken by the trial court is a possible view which could
have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with the order of acquittal
only if it comes to a finding that the only conclusion which can be
recorded on the basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable doubt and no other
conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate court for reversing the judgment of
acquittal recorded by the trial court in favour of the accused has to
be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider
material evidence on record; and
41.3. That no two reasonable views are possible and only the view
consistent with the guilt of the accused is possible from the
evidence available on record.
12. It could thus be seen that it is a settled legal position that the
interference with the finding of acquittal recorded by the Ld. Trial
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Judge would be warranted by the High Court only if the judgment
of acquittal suffers from patent perversity; that the same is based
on a misreading / omission to consider material evidence on record
and that no two reasonable views are possible and only the view
consistent with the guilt of the accused is possible from the
evidence available on record."
6. In view of the afore-stated principles, this Court
now on the anvil of the documentary as well as oral
evidence has to decide whether the case is made out
for allowing the appeal or not?
7. Heard Ld. Additional Public Prosecutor for the
State. We have also gone through the impugned
judgment and order of acquittal and we have also
taken into consideration to the oral evidence of
Narayanbhai Dahyabhai Gavadiya PW 1 at Exh. 16,
Victim at Exh. 18, Bhimabhai Kadabhai Kamadiya at
Exh. 19, Kadviben Ramabhai Dahyabhai at Exh. 20,
Rupaiben Ramabhai Dahyabhai at Exh. 21 and
Sejuben Bhimabhai Gavadiya at Exh. 22 and that
Gajananbhai Lakshmanbhai Pathak at Exh. 37 and
Investigating Officer Mr. Vajsibhai Ramshibhai
Kandoriya at Exh. 41.
8 If the entire testimony of the victim at Exhibit 18
is taken into consideration, she herself in Examination-
in-Chief stated that she was 18 years of age when the
incident took place and has stick to her version, which
is contrary to the statement given to the investigating
officer under Section 161 of the CRPC, which would be
evident from the cross-examination of the victim at
para 3 at Exh 18. To prove the material contradiction,
learned Advocate for the accused before the trial court
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has also cross-examined Mr. Vajsibhai Ramshibhai
Kandoriya at Exh. 41, whereby, material contradiction
with regards to the love relationship between the
accused no.1 and the victim and consensual
relationship is coming on record. Thus, having found
that the deposition of the victim is not of sterling
quality, coupled with the fact that the trial court has
given a detailed reasoning in not believing Exhibit 42
birth certificate and the Birth Register, wherein, there
is scoring without any counter-signature, which
creates serious doubt with regard to the age of the
victim at the time of incident. Assuming for the
moment and considering Exhibit 42 Birth Certificate as
it is, the age of victim at the time of incident would be
17, under such circumstances, the law then it was,
that any consensual relationship below the age of 16
would amount to rape would not be attracted in the
facts of the present case. More particularly, when
there are consensual relationships after the breaking
of relationship with the sister of the victim, and they
voluntarily had traveled to Junagadh to get their
marriage registered, however, they came to be caught
by the complainant and hence, the present case
against the accused.
9. it is also a settled legal position that in aquittal
appeals, the Appellate Court is not required to rewrite
the judgment or to give fresh reasonings, when the
reasons assigned by the Court below are found to be
just and proper. Such principle is laid down by the
Apex Court in the case of the State of Karnataka Vs.
Hemareddy, AIR 1981, SC 1417, wherein it is held as
under:-
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"...This Court has observed in Girija Nandini Devi V. Bigendra
Nandini Chaudhary (1967) 1 SCR 93 : (AIR 1967 SC 1124) that
it is not the duty fo the Appellate Court on the evidence to
repeat the narration of the evidence or to reiterate the reasons
given by the Trial Court expression of general agreement with
the reasons given by the Court the decision of which is under
appeal, will ordinarily suffice."
10. Under such circumstances, we do not find a fit
case to exercise power under Section 378 of the CRPC
to allow this appeal, since the Trial Code has given a
well-reasoned order and to which we are in
concurrence. Hence, the appeal of the State is hereby
rejected. The judgment of acquittal passed by the Ld.
Session Judge is upheld. Bail bond of the accused are
canceled. R&P to be sent to the concerned Court
forthwith.
(GITA GOPI,J)
(P. M. RAVAL, J)
MMP
