Gujarat High Court
Narendra Dhirajlal Godiya ... vs State Of Gujarat on 13 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/786/2002 JUDGMENT DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 786 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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NARENDRA DHIRAJLAL GODIYA PATEL(ABATED) & ANR.
Versus
STATE OF GUJARAT
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Appearance:
ABATED for the Appellant(s) No. 1
MS HETVI H SANCHETI(5618) for the Appellant(s) No. 2
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/08/2025
ORAL JUDGMENT
1. This Appeal had been filed by two of the accused who
came to be convicted by the judgment and order dated
13.09.2002 passed by the learned Sessions Judge,
Navsari in Sessions Case No.218 of 1998 under
Sections 376 read with Section 114 of the Indian Penal
Code (IPC). Both the accused were ordered to undergo
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seven years of rigorous imprisonment and pay a fine of
Rs.1,000/- and in default of payment of fine, to further
undergo one year of simple imprisonment.
2. During course of the present Appeal, the appellant
No.1-Narendra Dhirajlal Godiya Patel died on
13.02.2017. By an order dated 25.02.2020, the
Appeal against him stood abated. Thus, the Appeal is
now confined to the appellant No.2 - Umeshbhai
Kantibhai Maholla.
3. Learned advocate for the appellant/s Ms. Hetvi H.
Sancheti submitted that the conviction would be bad
in law without examination of the victim herself. The
learned trial Court Judge has erred to consider the
history recorded before the Doctor as an extra-judicial
confession and has also failed to examine that all the
accused were brought before the Doctor in police
custody. Referring to the medical evidence, learned
advocate Ms. Hetvi Sancheti submitted that no sperms
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were found from the vagina of the female girl and she
was found to be menstruating when she was examined
by the Doctor. The serological report of the clothes of
the female girl as well as the vaginal swab and saliva
swab and the samples of the accused shows the blood
group as AB. It is further submitted that all the 23
samples show the blood group as AB, and this itself
leads to the conclusion of the sample being doubtful.
It is further submitted that the deposition of Dr.
Subhodh Kishorebhai Patel notices the physical
condition of the girl as normal but the record also
states that no live or dead sperms were found in the
vagina of the victim girl and the Doctor on the X-Ray
examination has stated that the age would be not
considered less than 15 years and not more than 17
years and if the rape has committed then there would
be every possibility of external injury. It is also
submitted that the history before the Doctor of the
female girl itself shows that she had undergone an
abortion a year back and hence, the observation of the
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recent vaginal tear would not be believable. It is
further submitted that if the statement of the victim by
the history given to the Doctor is to be believed, then
the same reveals that the female girl was used to
sexual intercourse repeatedly. It is also submitted that
if the statement of the Doctor is to be believed, then
there was no case of Section 376 of IPC and the theory
of rape can be ruled out, since no case of physical
force was proved.
4. Learned advocate Ms. Hetvi Sancheti referring to the
evidence of Dr. Vrajlal Khanjibhai has submitted that
the Doctor has not found any injury on the body of the
girl including thigh or the private part; there was
bleeding on account of menstruation which has been
admitted by the Doctor and the Doctor has confirmed
the suggestion that if there would have been rape, then
extensive external injuries would be found. It is
further submitted that with regard to the physical
condition of the female girl, she was found to be
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normal and no injury was found on the genital organ
of the accused and the examination was done prior to
a bath. Hence, there ought to have been presence of
sperms, but no such thing was found nor the
menstrual discharged blood of the female girl was
found on the private parts of the accused. It is further
submitted that the so-called extra judicial confession
before the Doctor could not be believed. Nothing has
come on record of any volition since the accused were
in police custody. It is further submitted that the
complainant and the other witnesses have also turned
hostile. The learned Judge has erred by relying on the
medical evidence where actually the deposition of the
Doctors had not supported the case of rape and
therefore, urged that this Court may exercise its
discretion in favour of the appellant.
5. Countering the above arguments, learned Additional
Public Prosecutor Mr. Rohankumar Raval submitted
that the case under Section 376 of IPC has been totally
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proved. It is submitted that it is not necessary that
the victim female girl is always required to be
examined where the medical evidence itself proves the
rape. It is further submitted that the history of both
the accused before the Doctor is of rape committed by
them on the victim girl. It is also submitted that in
absence of any conclusive proof of age, the details
given by the victim herself regarding her age is
required to be believed. Alternatively, it is submitted
that it is a case of rape by two persons, which becomes
a serious offence and thus, urged to remand back the
matter exclusively for examining the deposition of the
girl child.
6. On a perusal of the impugned judgment and order, it
appears that the victim girl has not been examined.
The witnesses who have been examined are PW1-
Rajubhai Kantilal Soni, PW2-Rakeshbhai
Prafulchandra Shah, PW3-Subhodh Kishorebhai Patel,
PW4-Dr. Vrajlal Khanjibhai, PW5-Natubhai Dahyabhai
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and PW6-Devsinhbhai Daulatsinh Chauhan. The
documentary evidence relied upon are the panchnama
of the place of offence, panchnama of the clothes,
panchnama of the physical condition of the accused,
complaint at Exhibit 14, Police Yadi, X-Ray Report, the
medical certificate of the victim, Yadi by the Police
Sub-Inspector, Chikli, CHC Case Papers of the victim
and two accused, the medical certificate of CHC of
victim and accused No.1 and 2, the Yadi for
registration of the complaint, the panchnama of the
cycle, panchnama of seizure of cycle, FSL Report, Yadi
written to the Medical Officer, Chikli and Yadi sent to
the Medical Officer, Navsari.
7. Both the accused had denied the evidence against
them in the statement under Section 313 of the
Criminal Procedure Code, 1973 (hereinafter referred to
in short as 'Cr.PC') and have denied of any rape. The
case of the prosecution is that the accused committed
the offence of rape on 02.02.1998 at about 21.00
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hours in Chikli Lions Garden. It was the case that both
the accused in abetment had forcibly brought the
victim girl aged about 14 years on a cycle and without
her consent, both the accused committed the offence of
rape.
8. A complaint was filed by Rajubhai Kantilal Soni who
was examined as PW1. The witness was Deputy
Sarpanch. At Chikli Government Hospital in the year
1998 he was having the management of Lion's
Garden, which was in the Chikli Gram Panchayat. As
per the witness, the garden was having a compound
wall on four sides, the work of compound wall was
given to Contractor-Nattubhai about 10 days prior to
the incident. On date of the incident at about 9.00-
9.30 pm, PW1-Rajubhai Kantilal Soni and the
Contractor-Nattubhai were visiting the garden to see
the progress of the work and when they were in the
garden, they heard the sound of crying of a girl and
when they reached there, they did not see anyone
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alongwith the girl, they found that the girl was aged 15
years. They enquired about the condition of the girl.
There was a cycle outside the garden, they took the girl
to the police station. The witness stated that they had
not taken any two persons alongwith the girl to the
police station. Witness did not identify accused in
the Court. The witness identified his signature at
Exhibit 14. The witness was declared hostile and
when he was confronted with the complaint, he denied
the same.
9. Since PW1-Rajubhai Kantilal Soni (the complainant)
has not supported the complaint, the genuineness of
the complaint becomes doubtful. The PW1 has not
identified the accused, the PW1 has even denied of
taking the accused alongwith the female girl to the
police station and he had not even seen the accused
alongwith the girl.
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10. PW2-Rakeshbhai Prafulchandra Shah was the person
accompanying PW1-Rajubhai Kantilal Soni while
visiting the garden with the Contractor. On hearing
the voice of the girl, they had gone near the girl. The
witness also said that the girl appeared to be 15 years
old. He has also denied of apprehending any persons
from the place. The witness has not supported the
prosecution case and was also declared hostile.
11. PW3-Dr. Subhodh Kishorebhai Patel was the Medical
Officer at Civil Hospital, Navsari on 03.12.1998. The
victim was brought before him with a police yadi. The
victim was sent by the Medical Officer for gynecologist
and radiologist opinion. The history given by the
victim was stated by PW3, where she told the Doctor
that two persons on 02.12.1998 in the evening had
committed rape on her. The Doctor had also opined
about the Report of the Gynecologist- Dr. Niranjan
Shah. The fact was was noted that the victim girl was
menstruating during the examination. Her physical
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condition was found developed. The Doctor had found
one ulcer in the vagina and one ulcer below the labia
minor and another ulcer at perineum area.
12. Exhibit 19 the history suggests that the patient was
well oriented. The victim girl had stated that she was
used to sexual intercourse repeatedly and one abortion
had taken place a year ago. The urethra and vaginal
swab were taken for sperm examination and it has
been noted in Exhibit 19 that no sperms were found.
The opinion of the radiologist was noted and the
conclusion was that the age of the female is more than
15 years and less than 17 years. The PW3-Dr.
Subhodh Kishorebhai Patel in the cross examination
said that without the consent of the female girl, there
would be a possibility of internal and external injury
and if rape has been committed, on the girl, then the
possibility of injury would be there. Rather this
witness had not observed any sperms on the female
girl.
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13. The case papers of the female girl noted that no
sperms were seen. It has been recorded that no
opinion can be given about rape.
14. Dr. Vrajlal Khanjibhai was examined as PW4. It was
before him, the victim as well as the accused were
brought for physical examination. It appears that in
the case papers history was recorded by the Doctor
and much reliance has been placed on the history
before this Doctor of the accused. Further, in the
same deposition, it could be noted that examination
done was under a police yadi and certainly, the
accused would have been brought before this PW4
under police custody. The examination of the Doctor
of the victim girl noticed no injury on her physical self.
The Doctor has also observed about the menstrual
discharge from the vagina and has not found any
injury on the thigh or the vagina area. The Doctor has
noted of pain in the vagina and it was on the lower
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part of the vagina found a tear.. The history of the
victim before the Doctor was of rape being committed
on her on 02.12.1998 at about 9.00 pm in the Garden
at Chikli. Both the accused were examined by the
Doctor. The history given though was of rape by the
accused before the Doctor but on examination of
genital organ of the accused, nothing objectionable
was found. No blood stains or the presence of sperms
was noted nor any injury were found on the body of
the accused. The Doctor admitted that the blood in
the vagina of the victim was because of the menstrual
discharge.
15. On analysis of the medical evidence which has come
on record, it is clear that the female girl was
menstruating at the time of her examination. Though
vaginal swabs and saliva swabs were taken for
examination, no injury marks of any forcible sexual
intercourse were observed on any parts of the body of
the female girl nor on the accused. The serological
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report also does not clarify the examination of the
sample that was taken with regard to the blood,
urethera swab, vaginal swab as well as the clothes of
the victim and that of the accused. The blood group of
all the samples was noted as AB.
16. Under these circumstances, when the medical
evidence becomes weak the evidence of the victim girl
would become very important. The complainant does
not support his own complaint. The other witnesses
who were alongwith the complainant do not
corroborate the narration given in the complaint and
the victim herself has not been examined. The
radiological report refers to the age of the girl as above
15 years and less than 17 years. In absence of
evidence of the victim girl herself, the conviction of the
appellant is not well founded with the evidence on
record. The medical evidence also does not correlate
with the offence of rape. The witnesses have turned
hostile. The victim girl has not been examined. The
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forcible sexual act has not been proved on record by
way of medical evidence. The history before the Doctor
as found to be extra-judicial confession cannot be
believed since the accused were in police custody when
they were examined by the Doctor. The conviction is
perverse and is contrary to the evidence on record.
17. As a consequence, the appeal qua the appellant No.2-
Umeshbhai Kantibhai Rathod is allowed. The appeal of
the appellant No.1-Narendra Dhirajlal Godiya Patel
stood abated. The judgment of conviction and
sentence dated 13.09.2002 by the learned Additional
Sessions Judge, Navsari in Sessions Case No.218 of
1998 is quashed and set aside. The appellant No.2 is
acquitted of all the charges levelled against him. Bail
and bail bond stands discharged. Record and
proceedings be sent to the concerned Trial Court
forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE / DB # 6
