[Cites 9, Cited by 0]
Gujarat High Court
State Of Gujarat vs Babubhai Kalidas Rathod on 5 December, 2025
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R/CR.A/990/2000 JUDGMENT DATED: 05/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 990 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BABUBHAI KALIDAS RATHOD
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 05/12/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)
1. The present appeal is filed by the State under Section 378 of the
Criminal Procedure Code, 1978, assailing the judgment and order dated
17.08.2000 passed by the Learned Additional Sessions Judge, Valsad, in
Sessions Case No. 168 of 1997 (hereinafter referred to as the "Trial
Court"), whereby the respondent-accused was acquitted of the charges
punishable under Sections 302, 376, and 201 of the Indian Penal Code
("IPC").
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2. The brief facts of the prosecution case are as under:
2.1 The complainant, Surendra Singh Rajput, is a resident of Village
Vada (Karoli), Taluka Navsari, District Valsad, and has three children-
two sons and one daughter, Darshnaben, aged about 13 years.
Darshnaben was studying in the 8th standard at Maroli Vasi High School.
When she did not return home from school on 12.07.1987, her father, the
complainant, searched for her. He was eventually informed by one of the
villagers, Dilipbhai Gulabsinh, that the body of Darshnaben had been
found in an open area near the outskirts of their village, Karoli, and that
the body was in a naked condition.
3. Upon receiving this information and reaching the spot, he found
the dead body of his daughter, Darshnaben, in the said condition. He
informed his relatives and ultimately reported the incident to the nearest
police station. The officials of Jalalpur Police Station reached the spot,
and thereafter a formal complaint was registered by Surendra Singh, the
father of the victim, as C.R. No. (I)-103/1997.
4. After registering the complaint and conducting the investigation,
the police found that the accused was involved in the crime. He was
arrested, charge-sheeted, and as the offence was triable by the Sessions
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Court, the case was committed to the Trial Court for trial under Sections
302, 376, and 201 of the IPC.
5. The prosecution produced oral and documentary evidence to prove
the charges against the accused, as follows:
Sr. No. Witness No. Name Exhibit
1. 2. 3. 4.
Pratapsinh
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6. Furthermore, the prosecution has relied upon the following
documentary evidence:
Sr. No. Description of the Document and Exhibit
1. Original Complaint, Exhibit-10
2. Inquest Panchnama, Exhibit-34
3. Panchnama of the crime scene, Exhibit-12
4. Panchnama regarding the accused showed the place of offence,
Exhibit-21
5. Panchnama regarding identification of the steel box found from
the place of offence, Exhibit-25
6. Panchnama regarding identification of the similar steel boxes by
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the witness, Exhibit-26
7. Panchnama regarding seizure of the steel box from the home of
the witness, Dayalajibhai, Exhibit-29
8. Panchnama of the clothes wearing by the accused at the time of
incident, Exhibit-61
9. Panchnama regarding identification of the sleepar wearing by
the accused, Exhibit-33
10. P. M. Report, Exhibit-36
11. Caused of Death Certificate, Exhibit-37
12. Report of the F. S. L., Exhibit-65
13. Certificate of age and sex of the deceased, Darshanabahen,
Exhibit-52
14. Map of the place of offence, Exhibit-47
7. Thereafter, considering the submissions made by both sides and
upon appreciation of the aforesaid evidence led before the Trial Court, the
Court found that there was no clinching evidence against the accused by
which he could be proven guilty of committing the crime. Accordingly,
the Trial Court acquitted him of the charges levelled against him vide the
judgment and order.
Submissions of appellant:-
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8. Learned APP, Mr. Bhargav Pandya, has taken us through the
voluminous oral and documentary evidence led by the prosecution before
the Trial Court and has also read the impugned judgment, thereby trying
to substantiate the prosecution's case that the accused was wrongly
acquitted by the Trial Court.
8.1 Learned APP Mr. Bhargav Pandya would submit that the trial
Court has failed to appreciate the fact that, one minor girl- aged above 13
years, was not only raped but also murdered by the accused, and that
there is ample evidence to prove his involvement in the crime, which was
completely ignored by the Trial Court, while passing the impugned
judgment and order. It is submitted that from the spot, tiffin box and
sleeper of the accused recovered by the police and as per evidence on the
record, it involved the accused.
8.2 Learned APP would further submit that the medical evidence led
by the prosecution and the post mortem report available on record would
indicate that the victim was subjected to rape. Furthermore,
when the accused himself declared before the Medical Officer, namely,
Jayantilal (Exh. 57), that he had committed rape and the same was
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recorded in his medical history, it was sufficient in itself to prove the
accused guilty of such a heinous crime.
8.3 Learned APP would further submit that even though witness
Bachubhai (Exh-48) turned hostile and did not support the case
of the prosecution, in his cross-examination it has come on record that he
saw the accused near the spot where the crime happened, and the timing
which was narrated by him also matched with the case
of the complainant.
8.4 Making the above submissions, learned APP would request this
Court to allow this Appeal by setting aside the impugned judgment and
order passed by the Trial Court.
9. Though served, none appears for the respondent-accused.
10. Before adverting to the issue germane in the
appeal, the scope of interference in the appeal by this Court, that too
in an acquittal appeal filed by the State under Section 378 of CrPC, needs
to be taken note of.
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10.1 In a case of Babu Sahebagouda Rudragoudar and Others vs. State
of Karnataka, reported in (2024) 8 SCC 149, wherein the Honourable
Apex Court taking note of its previous decisions, held thus:
"39. This Court in the case of Rajesh Prasadv. 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 of acquittal in the
following words: (Chandrappa case [ Chandrappa v. State of Karnataka,
(2007) 4 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
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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."
40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9
SCC 581 this Court summarized the principles governing the exercise of
appellate jurisdiction while dealing with an 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 re-
appreciating 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
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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 misreading/omission to evidence on record; is based
on a consider material.
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.
42. The appellate Court, in order to interfere with the judgment of
acquittal would have to record pertinent findings on the above factors if it
is inclined to reverse the judgment of acquittal rendered by the Trial
Court."
11. Now, adverting to the facts of the case, even after appreciating the
submissions of learned APP Mr. Bhargav Pandya and upon re-
appreciation of the entire evidence led by the prosecution before the Trial
Court, we are of the view that there is no error committed by the Trial
Court in acquitting the accused, for the following reasons.
11.1 The case of the prosecution is entirely based upon circumstantial
evidence. In that view of the matter, a heavy burden was cast upon the
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prosecution to prove the case beyond all reasonable doubt to bring home
the charge against the accused.
11.2 True, the crime was a heinous one, but at the same time, the
accused cannot be held guilty on conjectures and surmises. Rather, in
such types of cases, it is the duty of the prosecution to lead appropriate
evidence on record to complete chain of event so that no innocent person
is punished, while at the same time ensuring the guilty do not go
unpunished.
11.3 The Trial Court, in Para-17 of its impugned judgment and order,
has noticed the circumstantial evidence led by the prosecution, which we
would not like to reiterate as we do not wish to burden our judgment. It
can only be observed that there is no direct evidence led by the
prosecution against the accused whereby it can be confirmed beyond
doubt that only the accused committed such a heinous crime.
11.4 The prosecution appears to have relied upon testimony of so many
witnesses but more emphasised upon two material witnesses, namely,
Bachubhai Somabhai (PW-19, Exh-48) and Revaben Motibhai (PW-20,
Exh-49) and so also recovered Muddamal i.e. tiffin box and one sleeper.
11.5 The oral evidence of Revaben Motibhai confirmed that on the
fateful day, i.e., 12.09.1997, she saw the accused with a tiffin box having
taken his lunch near her house. However, that is not sufficient in itself to
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prove the involvement of the accused in the crime, inasmuch as the mere
recovery of a tiffin box near the dead body of the victim, Darshnaben,
would not, ipso facto, be self-sufficient evidence to involve the accused
in the crime. Furthermore, during her cross-examination, PW-49 Revaben
confirmed that the tiffin box from which the accused took his lunch was
smaller in size than the tiffin box shown to her at trial, collected by the
police as Muddamal. The names of two different persons were found on
the lid of the tiffin box and on the box itself; on the lid, the name
'Sumitaben Dayalji' was written, and on the box, the name 'Bhikhubhai
Khapabhai' was written. Upon further investigation, nothing turned out
against the accused whereby it could be proved that the tiffin box
collected near the spot belonged to him.
11.6 It also requires to be noted that the Trial Court has correctly
observed in its impugned judgment that when the accused was made to
wear the slipper in the presence of panchas-which was collected from the
spot by the police-it did not fit his feet. This fact is confirmed by one of
the Panch witnesses in his deposition. This was also one of the factors
weighed in favor of the accused; thereby, it can be said that the
prosecution failed to prove the complete chain of events to bring home
the charge against the accused.
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11.7 Likewise, PW-19 Bachubhai Somabhai turned hostile and did not
support the case of the prosecution. It requires to be noted that based on
the statement of the aforesaid witness, the accused was implicated in the
commission of the crime in question. Even if we take his evidence at its
face value, there is nothing to prove that the accused committed the
crime.
11.8 It is undisputed on record that PW-19 Bachubhai Somabhai never
saw the accused committing the crime in question. Rather, on his
assumption, having seen the accused passing near the canal at the relevant
point of time, he presumed that the accused might be involved in the
crime. Thus, his evidence does not carry the case of the prosecution any
further.
11.9 So far as the parents of the victim, namely Surendrabhai
(complainant) and Sarojben (mother), are concerned, though examined by
the prosecution, they are of no help to the case of the prosecution. Rather,
Sarojben, the mother of the victim, deposed in her evidence that two other
girls accompanied the victim Darshnaben to school. Unfortunately, the
prosecution has not examined those two girls, namely Aasha and Karma,
who might have studied with the victim Darshnaben and could have
thrown some light on how the victim proceeded after school.
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11.10 It is true that the Medical Officer (PW-57) confirmed in his
deposition that the accused admitted before him that he had committed
rape. However, on appreciation of his evidence, it does not reveal that
such a confessional statement by the accused was in relation to the
subject crime. In the absence of any other corroborative evidence, it is
highly unsafe to disturb the acquittal.
11.11 Lastly, it is very unfortunate that the prosecution did not send any
sample from the accused to the FSL, a fact observed by the Trial Court in
Para-29 of its impugned judgment. If such evidence had been brought on
record by the prosecution, there might have been a possibility to link the
accused with the commission of the crime in question.
11.12 Even otherwise, when the prosecution failed to prove the
complete chain of events, the view taken by the Trial Court cannot be
said to be either erroneous or patently perverse, and thus, does not require
any interference by this Court.
12. All the above factors would clearly suggest that there are
weaknesses and shortcomings in the case of the prosecution, and the
evidence led by the prosecution has not inspired any confidence, at least
in us, whereby we can overturn the decision of the learned Trial Court
acquitting the respondent-accused.
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13. Thus, in view of the above-referred flaws in the evidence of the
prosecution and after going through the reasons assigned by the learned
Trial Court, we are in complete agreement with the reasons and the view
taken by the learned Trial Court in acquitting the respondent-accused.
14. Considering this evidence on record and in light of the decision of
the Hon'ble Supreme Court as referred to hereinabove, we are of the
opinion that no error has been committed by the learned Additional
Sessions Judge, Valsad, in Sessions Case No. 168 of 1997 (Trial Court)
while acquitting the respondent-accused.
15. In view of the aforesaid, this appeal is found to be meritless and is
accordingly dismissed. Resultantly, the impugned judgment and order of
the Trial Court is hereby confirmed. The bail bond, if any, shall stand
cancelled. Record and proceedings be sent back to the concerned Trial
Court forthwith.
(MAULIK J.SHELAT,J)
(P. M. RAVAL, J)
MOHD SAIF ULLAH
