[Cites 8, Cited by 0]
Gujarat High Court
The State Of Gujarat vs Thakor Shaileshkumar Chanduji on 4 December, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/1610/2004 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1610 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
THAKOR SHAILESHKUMAR CHANDUJI
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
MR. MAHITOSH U SINGH(7015) for the Opponent(s)/Respondent(s) No. 1
MR. MH SHEKHAWAT(7194) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 04/12/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of
acquittal dated 23.04.2004 passed by the learned Sessions Judge,
Mehsana in Sessions Case No. 185 of 2003 whereby the respondent-
accused has been acquitted of the offences punishable under Sections
363, 366 and 376 of the Indian Penal Code, the appellant - State has
preferred the present appeal under Section 378 of the Code of Criminal
Procedure, 1973 ("the Code" for short).
2. The brief facts leading to the filing of the present appeal are as
under:
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2.1. The prosecution case is that on 07.07.2003 at about 5-00 p.m. the
prosecutrix, a minor girl aged about 13 years (date of birth 01.06.1990),
was throwing cow-dung near the road at village Anandpura, Taluka Kadi,
District Mehsana. At that time the respondent-accused, who is also from
the same village, caught hold of her hand, forcibly put her in a jeep and
took her away towards Dangarva. Some village boys and the father of the
prosecutrix saw the incident and raised shouts. The mother of the
prosecutrix (PW-1 Ramilaben) and others immediately searched for her
but could not trace her. After 2-3 days the prosecutrix returned from her
mama's house. It is the further case of the prosecution that after taking
her away the accused committed rape upon her at different places against
her will and without her consent.
2.2. On these facts, a complaint was lodged at Kadi Police Station
which was registered as C.R. No. I-108 of 2003. After investigation,
chargesheet was filed before the learned Judicial Magistrate First Class,
Kadi. Since the offence under Section 376 IPC was exclusively triable by
the Court of Sessions, the case was committed to the learned Sessions
Court, Mehsana and was registered as Sessions Case No. 185 of 2003.
After recording evidence and hearing both sides, the learned Sessions
Judge acquitted the accused by the impugned judgment. Hence, this
appeal by the State.
3. We have heard learned advocates for the respective parties and
minutely examined oral and documentary evidence adduced before the
learned Sessions Court. During the course of trial, the prosecution
examined following witnesses. The details of the aforesaid evidence led
by the prosecution are reproduced in tabular form as under:
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~:: Oral Evidence ::~
Sr. Particular Exh.
No.
~:: Documentary Evidence ::~
Sr. Particular Exh.
No.
2 School Leaving Certificate of the prosecutrix 14
4 Station Diary entry for registration of offence 18
7 Yadi for medical examination of prosecutrix 21
10 Yadi for medical examination of the accused 26
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12 Forwarding note for sending muddamal to FSL 30
14 FSL reports 32 &
4. Learned APP has submitted that the impugned judgment is
contrary to law and evidence on record. It is submitted that the
prosecutrix was a minor girl aged about 13 years on the date of incident
and the accused knowing fully well that she was minor, enticed and
kidnapped her with intent to have illicit intercourse and thereafter
committed rape upon her. It is submitted that the evidence of the
prosecutrix, even if she has turned hostile in the later part of her
deposition, clearly establishes the act of kidnapping and rape in the initial
part of her testimony. The medical evidence also shows recent sexual
intercourse. Therefore, the learned Sessions Judge has committed a grave
error in acquitting the accused.
5. On the other hand, the learned advocates appearing for the
respondent-accused have supported the impugned judgment. It is
submitted that the prosecutrix herself has turned hostile and has
categorically stated that she had gone with the accused of her own free
will, that nothing had happened against her wish and that a compromise
has been arrived at between the families. All material prosecution
witnesses including the mother, father and eye-witnesses have turned
hostile. There is no corroborative evidence worth the name to prove the
charges beyond reasonable doubt. Therefore, the learned Sessions Judge
has rightly acquitted the accused and no interference is called for.
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6. We have heard the learned advocates for the respective parties and
have minutely re-appreciated the entire evidence on record.
7. At the outset, it is necessary to scrutinise the testimony of PW-1
Ramilaben (mother), examined at Exh.9. She deposed that on 07.07.2003
at about 5-00 p.m. her daughter was throwing cow-dung near the road
when some village boys came running and informed that a boy had taken
her away in a jeep towards Dangarva. She rushed to the spot and learnt
from Yogeshbhai and Kathabhai that it was the accused Shailesh who had
taken her. However, in the very same deposition and more particularly in
cross-examination, she categorically admitted that after 2-4 days her
daughter returned on her own from her mama's house. She has not
uttered a single word about the accused having committed rape or even
about the girl having been kept in wrongful confinement. The learned
Sessions Court has rightly observed that the mother has not supported the
prosecution case beyond the initial information of the girl having gone in
a jeep. This material improvement and subsequent complete silence on
the gravamen of the charge renders her testimony wholly unreliable for
proving either abduction or rape.
8. The testimony of PW-2 the prosecutrix (Exh.11) is the sheet-
anchor of the prosecution case. In her initial examination-in-chief
recorded on 09.02.2004 she supported the prosecution by stating that the
accused caught her hand, forcibly put her in the jeep and, after taking her
to the fields on a rainy night, committed rape upon her. She continued to
depose that on 15.03.2004 she made a complete somersault and
categorically stated that she had gone on her own to her masi's house,
that villagers had spread false rumours, that a false case was filed because
of village talk, that nothing had happened against her wish, that she and
the accused belonged to the same village and that a compromise had
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already been arrived at between the two families. She expressly denied
that the accused had committed rape upon her. The prosecution declared
her hostile. Thus, the learned Sessions Court has rightly held that when
the prosecutrix herself resiles and gives a version diametrically opposite
to the prosecution story, it is unsafe to place reliance on the initial portion
of her statement alone, more so when the subsequent portion is coherent,
consistent and supported by the conduct of returning from mama's house
within a few days.
9. PW-3 Ranachhodbhai (father), examined at Exh.13, has completely
turned hostile and has not supported the prosecution case at all. No useful
purpose is served by his testimony.
10. PW-4 Kamabhai Nathabhai Rabari (Exh.15), cited as an eye-
witness to the jeep incident, merely stated that he saw the girl going in a
jeep but failed to identify the accused as the person accompanying her.
He has been declared hostile and nothing incriminating survives from his
evidence.
11. PW-5 Gafurbhai Shankarbhai (Exh.16), the field watchman,
admitted that the accused and the girl had come to his field but refused to
support the prosecution version of any forcible act or rape. He too has
been declared hostile.
12. PW-6 Dr. Sureshkumar Kantilal Zaveri (Exh.24) medically
examined the prosecutrix on 09.07.2003. He opined that the prosecutrix
had indulged in sexual intercourse in the recent past and that the accused
was capable of performing the act. Significantly, in cross-examination the
doctor admitted that the prosecutrix herself gave a clear history before
him that she had consensual physical relations with the accused 5-6
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times. No injury was found on her private parts and the hymen was old
torn. The learned Sessions Court has rightly held that when the
prosecutrix herself admits consensual intercourse before the doctor and
later in court, the medical evidence, far from supporting the charge of
rape, actually demolishes the allegation of forcible intercourse.
13. PW-7 Mahadevbhai Jakshibhai Desai (Exh.29), the Investigating
Officer, has merely proved routine investigation. In cross-examination
several omissions and contradictions in the statements of prosecution
witnesses were brought on record which further weaken the prosecution
case.
14. The school leaving certificate (Exh.14) proves that the prosecutrix
was born on 01.06.1990 and was about 13 years and one month old on the
date of incident. This fact is not disputed even by the defence.
15. Thus, the only unassailable fact which has been proved by the
prosecution beyond doubt is that the prosecutrix was a minor girl below
16 years of age on the date of incident. So far as the charges under
Sections 363 and 366 IPC are concerned, the question of consent is
wholly irrelevant because a girl below 16 years is incapable of giving
consent for being taken out of the lawful guardianship. However, even
this charge completely fails because the prosecutrix herself has
categorically stated in the second part of her deposition that she had gone
on her own to her masi's house and not with the accused. The mother
(PW-1) has also admitted that her daughter returned from mama's house
after a few days. No independent witness has supported the prosecution
case that the accused took away the prosecutrix in a jeep. All eye-
witnesses have turned hostile. Therefore, the prosecution has miserably
failed to prove the factum of kidnapping or abduction beyond reasonable
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doubt.
16. So far as the charge of rape (Section 376 IPC) is concerned, the
entire case rests upon the testimony of the prosecutrix. In her examination
she made an effort to support the prosecution and stated that rape was
committed upon her. However, thereafter she completely resiled and
stated that nothing happened against her wish and that a compromise had
been arrived at. Even the medical evidence shows that the prosecutrix
gave history of consensual intercourse 5-6 times before the doctor. No
injury was found on her private parts. In view of the prosecutrix turning
hostile and giving a completely contradictory version, it is not safe to rely
upon the first part of her deposition alone to hold that rape was
committed upon her without her consent. When the prosecutrix herself
says in court that the act was consensual and a compromise has been
arrived at, it is not permissible in law to convict the accused only on the
basis of her earlier contradictory statement.
17. In addition to the factual findings, the acquittal recorded by the
learned Sessions Judge is legally sound for several independent reasons.
In an appeal against acquittal, the High Court does not function as an
ordinary court of appeal. The presumption of innocence in favour of the
accused stands considerably strengthened by the learned Sessions Court's
verdict of not guilty. Interference is warranted only when the findings are
shown to be wholly perverse, impossible, or when the learned Sessions
Court has ignored admitted evidence, or when its conclusions are such
that no reasonable person could have arrived at them on the same
material. Nothing of that kind exists in the present case.
18. The entire edifice of the prosecution case rests upon the sole
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testimony of the prosecutrix. When the prosecutrix herself, after the
passage of time and upon regaining composure, categorically states on
oath that she had gone voluntarily, that nothing occurred against her will,
that the entire case arose out of village rumours, and that a settlement had
already been reached between the two families, it is legally impermissible
to discard this sworn and coherent testimony and to convict the accused
merely by relying on the initial portion of her statement given on a day
when she was visibly under pressure and emotionally disturbed. The
testimony of a witness must be read and appreciated as an integral whole,
and not dissected into convenient fragments.
19. The medical evidence in this case, far from supporting the
allegation of forcible intercourse, in fact demolishes it. The doctor found
no injuries whatsoever on the private parts; the hymen was old torn; and,
most significantly, the prosecutrix herself gave a clear history before the
doctor of having had consensual physical relations with the accused on 5
to 6 occasions. When medical evidence corroborates repeated consensual
intercourse and the prosecutrix reiterates the same fact in court, no court
can legally sustain a conviction for rape by holding that the intercourse
was without consent.
20. When the parents of the prosecutrix as well as all independent eye-
witnesses have turned hostile, when the prosecutrix returned home on her
own within a few days, and when she admits a compromise and a
voluntary association with the accused, and when there is not an iota of
independent corroborative evidence remaining on record, the standard of
proof beyond reasonable doubt remains wholly unsatisfied. In such
circumstances, the accused is entitled to acquittal not merely on the basis
of benefit of doubt, but because the prosecution case stands completely
disproved by the very witnesses it chose to examine.
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21. For all these reasons, both factual and legal, the view taken by the
learned Sessions Judge is the only possible and correct view on the
evidence placed before the court. No interference is warranted in this
appeal against acquittal.
22. It is settled legal position that in an appeal against acquittal the
High Court would be slow to interfere with the findings of fact recorded
by the learned Sessions Court unless the findings are shown to be
perverse or impossible. In the present case the learned Sessions Judge has
given cogent and convincing reasons for not placing reliance upon the
prosecution witnesses who turned hostile and for holding that the
prosecution failed to prove the charges beyond reasonable doubt. We find
no perversity or illegality in the impugned judgment warranting
interference.
23. Thus, the evidence of the victim lady produced by the prosecution
before the Court appears to be doubtful. From the evidence emerging
from the record, the prosecution has failed to prove the charge against the
accused beyond all reasonable doubt and therefore, and the learned
Sessions Court has rightly recorded the findings recording acquittal of the
respondents - accused.
24. At this stage, this Court may refer to the decision of the Hon'ble
Apex Court in the case of Rajesh Prasad v. State of Bihar and Another
[(2022) 3 SCC 471] encapsulated the legal position covering the field
after considering various earlier judgments and held as below: -
"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 acquittal in the following
words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4
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SCC 415]
"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, reappreciate 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."
25. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023)
9 SCC 581] the Hon'ble Apex Court has summarized the principles
governing the exercise of appellate jurisdiction while dealing with an
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appeal against acquittal under Section 378 of CrPC as follows: -
"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."
26. In light of the above legal position and for the reasons recorded in
the foregoing paragraphs, coupled with the fact that the case of the
prosecution does not get support from the evidence recorded by the
learned Sessions Court, the present appeal fails and is accordingly
dismissed. Records and Proceedings, if any, be remitted to the Court
concerned forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
MVP
