Gujarat High Court
State Of Gujarat vs Solanki Krunal @ Vikki Jayesh-Bhai @ ... on 2 August, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.A/358/2005 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 358 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SOLANKI KRUNAL @ VIKKI JAYESH-BHAI @ JESANGBHAI
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Appearance:
Ms. Asmita Patel APP for the Appellant(s) No. 1
MR.DIVYESH G NIMAVAT(3757) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal dated 22.4.2004 passed by the learned
Additional Sessions Judge, Fast Track Court No.13, Ahmedabad
(Rural) at Gandhinagar in Sessions Case No.45 of 2003,
whereby the respondent accused came to be acquitted for the
offences under Sections 363, 366, 376 of Indian Penal Code,
the appellant - State has preferred present appeal under
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section 378 of the Code of Criminal Procedure, 1973 ("the
Code" for short).
2. Brief facts of the case are as under;
2.1. An FIR was registered by Kasturbhai Jivanbhai Makwana
on 2nd January 2003. He has two sons and a daughter. The
victim, who has one elder brother and one younger brother,
had failed standard 12 and was studying from home. On 20th
December 2002, Kasturi Makwana and his wife were at their
jobs, and both sons were at school. The victim remained at
home with Kastur Makwana's father. Upon returning home
around 6:30 PM, Kasturbhai asked his family about the
whereabouts of his daughter. They replied that she had left
home around 11:00 AM and had not returned. Similarly, on
the previous day, 19th December 2002, the complainant's
daughter had also been away from home from morning until
evening.
2.2 Upon inquiry, she informed that she had gone out with
Vicky Jesngbhai, also known as Solanki Krunal alias Vicky
Jayeshbhai alias Jesangbhai, who is the present respondent
and original accused. Upon further inquiry, the complainant
discovered that Vicky Jesangbhai was also missing from his
residence and also came to the know that he residing at Surat.
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When inquiries were made in Surat, the complainant was
informed that his daughter was seen with the accused.
Ultimately, it was discovered that both the accused and the
victim were at Shirdi, and an assurance was given that as soon
as they returned, she would be sent back home. However,
even after that, the complainant's daughter was not found.
Consequently, an FIR was lodged against the accused, alleging
that the victim had taken ornaments from the residence and
withdrawn Rs.10,000 from her bank account. That is why the
FIR was registered under Sections 376, 363, and 366 of the
IPC
3. In pursuance of the complaint lodged by the complainant
with the Adalaj Police Station for the offence under sections
363, 366 and 376 of the IPC, the investigating agency recorded
statements of the witnesses, drawn panchnama of scene of
offence, discovery and recovery of weapons and obtained FSL
report for the purpose of proving the offence. After having
found sufficient material against the respondent accused,
charge-sheet came to be filed in the Court of learned JMFC,
04.03.2024. As said Court lacks jurisdiction to try the offence,
it committed the case to the Sessions Court, on 13.03.2003 as
provided under section 209 of the Code.
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3.1 After the charge sheet was filed, the accused filed an
application for discharge in Sessions Case No. 45/2003. The
learned Sessions Judge passed an order stating that the offence
under Section 376 of the IPC could not be said to have been
committed, and therefore charges should be framed only under
Sections 363 and 366 of the IPC.
4. Upon committal of the case to the Sessions Court,
Additional Sessions Judge Fast track Court No.13, Gandhinagar,
Ahmedabad (Rural) , learned Sessions Judge framed charge at
Exh.5 on dated 26.02.2004 against the respondent accused for
the offences under Sections 363 and 366 of the IPC. The
respondent accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has
examined 5 witnesses and also produced various documentary
evidence before the learned trial Court, more particularly
described in para 5 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution,
the trial Court put various incriminating circumstances
appearing in the evidence to the respondent accused so as to
obtain explanation/answer as provided u/s 313 of the Code. In
the further statement, the respondent accused denied all
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incriminating circumstances appearing against him as false and
further stated that he is innocent and false case has been filed
against him.
7. We have heard learned APP Ms.Asmita Patel for the
appellant - State and minutely examined oral and documentary
evidence adduced before the learned Trial Court.
8. The learned APP submitted that the offense under Section
376 IPC was registered at the time of filing the charge sheet
when the accused had applied for discharge. However, the
learned Fast Track Judge passed an order stating that an
offense under Section 376 could not be established.
Consequently, charges were framed only under Sections 363
and 366 of IPC and not under Section 376. Considering that
the age of the victim girl at the relevant time was above 17
but below 18 years, and therefore a minor, the charge under
Section 376 IPC should also have been framed. It is an
admitted position that the victim girl was less than 18 years
old when the alleged offense under Section 376 occurred.
8.1. The learned APP further submitted that the learned judge
did not properly appreciate the oral and documentary evidence
on record and thereby erred in acquitting the respondent of
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the alleged offenses under Sections 363 and 366 of the IPC.
Additionally, the learned APP pointed out that, according to
the evidence of Dr. H.G. Panchal, it was clear that the victim
and the accused had intimate relations five times, even though
with the victim's consent, given that she was a minor at the
relevant time. Therefore, the respondent should have been
convicted under Section 376 IPC. Considering these submissions
and the medical and other evidence indicating intimate
relations between the respondent and the minor victim, the
offense under Section 376 IPC is clearly established. Hence, the
respondent ought to have been convicted under Section 376
IPC. Regarding offenses under Sections 363 and 366 IPC, the
learned APP argued that the learned judge failed to appreciate
the evidence in line with the available material on record, thus
committing a significant error.
9. I have heard the learned advocates for the parties and
perused the records. The record indicates that the victim girl
was examined as prosecution witness number three (PW3),
Exhibit 15, wherein she categorically did not support the
prosecution's version. She clearly stated that she and the
accused (the present respondent) had mutually decided on the
previous day, 19th December, to leave together on 20th
December. Accordingly, on 20th December, she left her
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residence at around 11:00 am of her own volition. She further
explicitly stated that she and the accused stayed for
approximately five days at the residence of the accused's
parents. Additionally, she confirmed that she refused to return
to her parental home and was subsequently sent to Nari
Sanrakshan Gruh.
9.1. The aforesaid deposition of the victim was considered by
the learned Sessions Judge, who noted specifically that the
victim girl was staying in a rented house with the present
accused, from where they were caught. During the cross-
examination of the victim, the learned Judge also took note of
the fact that the victim had, of her own volition, refused to
return to her parents, which resulted in her being sent to Nari
Sanrakshan Gruh. However, in her cross-examination, the
victim mentioned for the first time that this decision was made
under threat, an assertion recorded by the learned Judge in
the judgment as emerging only at that stage. Additionally, the
learned Judge noted that the victim herself had withdrawn Rs.
10,000 from her bank account, and from 20th December 2002
to 3rd January 2003, she and the respondent (original accused)
traveled together from place to place using public transport.
After an overall appreciation of the evidence, the learned
Judge concluded that no offense under Sections 363 and 366
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IPC was established.
10. After examining the evidence on record, particularly the
testimony of the victim, I find no reason to differ from the
conclusion reached by the learned judge upon appreciation of
the evidence.
11. It is a cardinal principle of criminal jurisprudence that in
an acquittal appeal if other view is possible, then also, the
appellate Court cannot substitute its own view by reversing the
acquittal into conviction, unless the findings of the trial Court
are perverse, contrary to the material on record, palpably
wrong, manifestly erroneous or demonstrably unsustainable.
(Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225).
In the instant case, the learned APP for the applicant has not
been able to point out to us as to how the findings recorded
by the learned trial Court are perverse, contrary to material on
record, palpably wrong, manifestly erroneous or demonstrably
unsustainable.
12. In the case of Ram Kumar v. State of Haryana, reported
in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order
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of acquittal to reassess the evidence and reach its own
conclusions under Sections 378 and 379, Cr.P.C. are as
extensive as in any appeal against the order of
conviction. But as a rule of prudence, it is desirable that
the High Court should give proper weight and
consideration to the view of the Trial Court with regard
to the credibility of the witness, the presumption of
innocence in favour of the accused, the right of the
accused to the benefit of any doubt and the slowness of
appellate Court in justifying a finding of fact arrived at
by a Judge who had the advantage of seeing the witness.
It is settled law that if the main grounds on which the
lower Court has based its order acquitting the accused
are reasonable and plausible, and the same cannot
entirely and effectively be dislodged or demolished, the
High Court should not disturb the order of acquittal."
13. As observed by the Hon'ble Supreme Court in the case of
Rajesh Singh & Others vs. State of Uttar Pradesh reported in
(2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias
Jardar Khan and Another vs. State of Madhya Pradesh reported
in (2011) 6 SCC 394, while dealing with the judgment of
acquittal, unless reasoning by the learned trial Court is found
to be perverse, the acquittal cannot be upset. It is further
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observed that High Court's interference in such appeal in
somewhat circumscribed and if the view taken by the learned
trial Court is possible on the evidence, the High Court should
stay its hands and not interfere in the matter in the belief that
if it had been the trial Court, it might have taken a different
view.
14. Considering the aforesaid facts and circumstances of the
case and law laid down by the Hon'ble Supreme Court while
considering the scope of appeal under Section 378 of the Code
of Criminal Procedure, no case is made out to interfere with
the impugned judgment and order of acquittal.
15. In view of the above and for the reasons stated above,
present Criminal Appeal deserves to be dismissed and is
accordingly dismissed.
(NIRZAR S. DESAI,J)
(SANJEEV J.THAKER,J)
BHAVIN MEHTA
