Gujarat High Court
Kiranbhai Vasantbhai Vasava vs State Of Gujarat on 31 January, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 747 of 2014
With
R/CRIMINAL APPEAL NO. 648 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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KIRANBHAI VASANTBHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PH BUCH(1018) for the Appellant(s) No. 1
MR. L.B. DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. Criminal Appeal No. 747 of 2014 has been filed by the
appellant - original accused no. 1 - Sandip @ Rahul Vinod
Chauhan and Criminal Appeal No. 648 of 2015 has been
filed by the appellant - original accused no. 2 - Kiranbhai
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Vasantbhai Vasava under Section 374(2) of the Code of
Criminal Procedure against the judgement and order dated
07.10.2013 passed by the learned Sessions Judge, Bharuch
(hereinafter referred to as the "learned Trial Court") in
Sessions Case No. 11 of 2013. The appellants were put on
trial for the offence punishable under Sections 376(g) and
506(2) of the Indian Penal Code and were convicted and
sentenced to life imprisonment and fine of Rs 20,000/-
(Rupees Twenty Thousand only) each and in default, to
simple imprisonment for six months for the offence under
Section 376(g) of the IPC and to rigorous imprisonment for
seven years and fine of Rs. 5000/- (Rupees Five Thousand
only) and in default, simple imprisonment for one month for
the offence under Sections 506(2) of the IPC. Both the
accused were further ordered to pay compensation Rs.
50,000/- (Rupees Fifty Thousand only) to the victim and the
learned Trial Court was pleased to further order both the
sentences to run concurrently and the period of detention to
be given as a set off against the sentence.
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1.1 The appellants are referred to as the accused as they
stood in the rank and file in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The complainant - victim was residing in the Nari
Suraksha Kendra, Bharuch as she was the only child of her
parents and her mother had expired in the year 2004 and
her father in the year 2008. That she was residing with her
paternal aunt at Sayan and was studying in class nine and
she could not adjust to her paternal aunt and went to her
grandfather's house at Mandva. Her uncle - Shaileshbhai
Becharbhai Prajapati scolded her for talking to boys and she
felt hurt and went to one known aunt's house at Surat and
resided there for 15 days and was doing the house work.
Her uncle came to know and came to Surat to take her and
she went straight to Ankleshwar Police Station as her
grandfather had given a missing person's report. At the
Ankleshwar Police Station, she refused to go to the house of
any of her relatives and she was sent to Nari Suraksha
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Kendra, Bharuch on 25.02.2012. That she was friendly with
one Komal Nilkanth Marathe who enticed her to go outside
and on the day of Dhuleti, they tried to flee from the home
but one Bhadraben Prajapati saw them and they did not
leave the home. On 25.03.2012, she and Komal ran away
from the Nari Suraksha Kendra and stayed at the place of
one Rehanaben who was known to Komal. On 26.03.2012,
she and Komal came to the Bharuch Railway Station and
went without ticket to Surat and in the afternoon they were
hungry and as they did not have money, they sold her nose
ring for ₹200/-. They returned to Bharuch at around 03.00
pm and looked for work and met Kiran Vasava - the friend
of Komal, who called Ravi @ Babubhai with a rickshaw and
they went to Gayatri Temple for worship. That after the
darshan they came to the rickshaw and Komal, Kiran and
Ravi sat in the rickshaw and she walked towards the river
when Kiran came behind her, caught her and threw her on
the ground and forcibly had sexual intercourse with her.
That she was afraid and she did not tell anyone about the
same and they came back to Bharuch Railway Station
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where Babubhai dropped them from the rickshaw and she,
Komal and Kiran met Sandip Chauhan and they decided to
go for a movie to Relief Talkies. During the interval, they
came for dinner at Jambusar Bypass and at around 11.45
pm - 12.00 midnight they went in the rickshaw behind
Navjeevan High School and all four of them were walking
when Komal went to answer nature's call and she, Kiran
and Rahul @ Sandip went through a narrow lane into an
open room where there was a bed and a lamp burning.
Kiran shut the door and caught her hands and mouth and
Rahul @ Sandip removed all her clothes and raped her.
Thereafter, Rahul caught her hands and mouth and Kiran
raped her and both of them threatened to kill her if she told
anyone about the incident. That she was afraid and wore
her clothes and came out and met Komal but she did not
tell Komal about the incident. That she and Komal walked
to the railway station and Komal left her and went away
with someone else and told her to go back to the Nari
Suraksha Kendra but she met a boy named Mukesh who
was selling pouches of water and she told him to keep her
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with him for some days. That she remained with him for a
few days and on 15.04.2012, Mukesh took her to the house
of his aunt at Naldhari, Valiya where they kept her for two
days and brought her back to the Nari Suraksha Kendra,
Bharuch. She informed them about the incident and she
was taken for a medical checkup, and she had filed the
complaint on 17.04.2012 at Bharuch 'C' Division Police
Station Camp at Civil Hospital, Bharuch which was
registered at I - C. R. No. 48 of 2012 under Sections 376(g)
and 506(2) of the IPC.
2.2 The Investigating Officer collected the evidence drew
the necessary panchnamas, recorded the statements of the
connected witnesses and as the involvement of the accused
was found in the offence, the accused were arrested and a
charge-sheet came to be filed before the Court of the
Judicial Magistrate First Class, Bharuch. As the case was
exclusively triable by the Session Court, Bharuch, a
committal order under Section 209 of the Code of Criminal
Procedure was passed, and the case was registered as
Sessions Case No. 11 of 2013.
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2.3 The accused appeared before the learned Trial Court
and it was verified whether the provisions of Section 207 of
the Code of Criminal Procedure was complied with and a
charge was framed against the accused at Exh. 9 and the
statements of the accused were recorded at Exh. 10 and
Exh. 11 respectively. The accused denied all the contents of
the charge and the evidence of the prosecution was taken
on record. The prosecution examined 19 witnesses and
produced 25 documentary evidences in support of their case
and after the learned APP filed the closing pursis at Exh. 77,
the statement of the accused under Section 313 of the Code
of Criminal Procedure was recorded wherein the accused
denied all the evidence of the prosecution produced on
record. The accused refused to step into the witness box or
lead evidence and examine witnesses and after the
arguments of the learned APP as well as the learned
Advocate for the accused were heard, the learned Trial
Court was pleased to find both the accused guilty for the
offence under Sections 376(g) and 506(2) of the IPC and
sentenced them as mentioned above.
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3. Being aggrieved and dissatisfied with the judgement
and order of conviction, the appellants have filed the
present appeals mainly stating that the learned Trial Court
has failed to appreciate that the prosecution has not proved
the case beyond reasonable doubts and the learned Trial
Court ought to have appreciated that the appellants herein
have been caught and arrested after about twenty one days
from the date of unpleasant incident and there is no
involvement of the appellants. There is no eye witness, no
independent witness, not only this but the admitted fact is
that the victim herself has chosen to not to tell about the
incident that has taken place with her for a pretty long time
of about 21 days. That she did not tell about the unpleasant
incident to her friend Komal who was accompanying her at
the time of happening of the incident. It is apparent that the
victim is a consenting party and materially important and
independent witnesses have not been examined. There are
material contradictions and omissions in the deposition of
the victim and her complaint. The complaint clearly appears
on the face of it as an afterthought to save the victim herself
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as well as her friend Mukesh. There is no medical evidence
supporting the story and no official report supporting or
corroborating the evidence of the prosecution. That the
prosecution witnesses who have been examined, have no
personal knowledge to support the case of prosecution and
the complaint admittedly is lodged after a delay of twenty
one days. The learned Trial Court has not appreciated the
evidence in proper perspective and the allegations are not
believable by any ordinary and prudent person and hence,
the impugned judgement and order is bad in law and is
required to be quashed and set aside.
4. We have heard learned Advocate Mr. P. H. Buch for the
appellant of Criminal Appeal No. 747 of 2014, learned
Advocate Mr. Pratik Barot for the appellant of Criminal
Appeal No. 648 of 2015 and learned APP Mr. L. B. Dabhi
for the respondent state. We have also perused the
impugned judgement and order and the evidence produced
by the prosecution before the learned Trial Court
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5. Learned advocates for the appellants have submitted
that the learned Trial Court has not appreciated the
evidence properly and has not taken into consideration the
defence of the appellants. The medical evidence does not
support the say of the victim that any offence had taken
place and the evidence of the victim is not credible to inspire
confidence of the Court. The learned Trial Court has not
considered the defence of the appellants that they are falsely
implicated in a serious offence and the prosecution has not
produced any legal, reliable and unimpeachable evidence to
support the original genesis of occurrence that the incident
in question has taken place. The learned Trial has drawn
inferences against the defense and in favor of the
prosecution and the learned Trial Court has failed to
appreciate that the prosecution has failed to prove the
various panchnamas. The learned Trial Court has grossly
erred and misread and misconstrued the intention of the
appellants and has not seen the facts of the case and there
was no evidence of the said offences. Learned advocates
further submit that most of the witnesses have turned
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hostile and the impugned judgement and order is
erroneous, bad in law and is required to be quashed and set
aside.
6. Learned APP Mr. L. B. Dabhi has taken this court
through the entire evidence of the prosecution on record
and has submitted that the learned Trial Court has
appreciated each and every evidence on record and from the
evidence the prosecution has proved the case beyond
reasonable doubt. The say of the victim has been believed
by the learned Trial Court and the victim was a minor on
the date of the incident and she has stated that she was
afraid and as she was threatened by the appellants, she did
not inform any one about the incident. There is no reason to
disbelieve the evidence of the victim and their presence at
the place of incident at the time of the offence is clearly
proved by the prosecution. Learned APP has urged this
Court to reject the appeals of the appellants.
7. Before we proceed to decide the appeal, it would be
appropriate to reproduce the observations of the Apex Court
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in the case of Lal Mandi V. State of West Bengal reported in
1995 Cri LJ 2659 regarding the duty of the appellate Courts
in hearing of appeals in conviction matters which is as
under:
5. In an appeal against conviction, the Appellate
Court has the duty to itself appreciate the evidence on
the record and if two views are possible on the
appraisal of the evidence, the benefit of reasonable
doubt has to be given to an accused. It is not correct to
suggest that the "Appellate Court cannot legally
interfere with" the order of conviction where the trial
court has found the evidence as reliable and that it
cannot substitute the findings of the Sessions Judge
by its own, if it arrives at a different conclusion on
reassessment of the evidence. The observation made in
Tota Singh's case, which was an appeal against
acquittal, have been misunderstood and mechanically
applied. Though, the powers of an appellate court,
while dealing with an appeal against acquittal and an
appeal against conviction are equally wide but the
considerations which weigh with it while dealing with
an appeal against an order of acquittal and in an
appeal against conviction are distinct and separate.
The presumption of innocence of accused which gets
strengthened on his acquittal is not available on his
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conviction. An appellate court may give every
reasonable weight to the conclusions arrived at by the
trial court but it must be remembered that an
appellate court is duty bound, in the same way as the
trial court, to test the evidence extrinsically as well as
intrinsically and to consider as thoroughly as the trial
court, all the circumstances available on the record so
as to arrive at an independent finding regarding guilt
or innocence of the convict. An Appellate Court fails in
the discharge of one of its essential duties, if it fails to
itself appreciate the evidence on the record and arrive
at an independent finding based on the appraisal of
such evidence......
7.1 In RE: Right to Privacy of Adolescents Suo Moto Writ
Petition (C) No. 3/2023 with Criminal Appeal No.
1451/2024 decided on 20.08.2024, the Apex Court in para
13 has observed as under:
13. When a Court deals with an appeal against an
order of conviction, the judgment must contain (i) a
concise statement of the facts of the case, (ii) the
nature of the evidence adduced by the prosecution and
the defence, if any, (iii) the submissions made by the
parties, (iv) the analysis based on the reappreciation of
evidence, and (v) the reasons for either confirming the
guilt of the accused or for acquitting the accused. The
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appellate court must scan through the evidence, both
oral and documentary, and reappreciate it. After
reappreciating the evidence, the appellate court must
record reasons for either accepting the evidence of the
prosecution or for disbelieving the evidence of the
prosecution. The Court must record reasons for
deciding whether the charges against the accused have
been proved. In a given case, if the conviction is
confirmed, the Court will have to deal with the legality
and adequacy of the sentence. In such a case, there
must be a finding recorded on the legality and
adequacy of the sentence with reasons. The ultimate
object of writing a judgment is to ensure that the
parties before the Court know why the case is decided
in their favour or against them. Therefore, judgment
must be in a simple language. The conclusions
recorded by the Court in the judgment on legal or
factual issues must be supported by cogent reasons.
8. In light of the above settled principles of law, at this
juncture it would be appropriate to refer to the evidence led
by the prosecution on record of the case.
8.1 The prosecution has examined PW1 - the victim -
complainant at Exh. 14 and the witness has stated that her
parents had expired and she was residing with her uncle
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and aunt at Sayan and from there she had gone to reside
with her grandfather. Her uncle used to scold her and she
went away to Surat to live with a person who was known to
her and her grandfather had given a missing person's
complaint in the Police Station. When she was brought
before the police, she refused to go to anyone's house and
she was sent to the Nari Suraksha Kendra at Bharuch,
where she became friendly with a girl named Komal and
they made a plan to escape. On 25.03.2012, at around
07.00 am, she and Komal went to Munnibai, a person
known to Komal and they stayed at the place of Rehana -
the daughter of Munnibai. The next morning they went to
Surat by train and they sold her nose ring for ₹200/- and
returned to Bharuch, where they met Kiran and went with
Babu in his rickshaw where Kiran removed her clothes and
raped her. Komal told them that they did not have a place to
stay and Kiran took them to a room. Kiran called Rahul and
they were taken to the bypass. They went to Relief Talkies to
see a movie but left the movie midway and went to the room
where Komal went to answer nature's call. There was no
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light in the room and Rahul and Kiran came into the room
and raped her and left the room after threatening to kill her
if she told anyone about the incident. She informed Komal
about the incident and Komal told her that she would go to
Surat in the morning. She met Komal's friend Mukesh and
informed him about the incident and asked him to let her
stay with him for some days. Kiran and Rahul came to know
that she was with Mukesh and they telephoned him and
told him to handover her custody to them and hence, she
and Mukhes went towards Vadodara but they kept on
threatening them. That she returned to the Nari Suraksha
Kendra on the 17th and informed them about incident and
she was sent for a medical checkup and she told the doctor
about the incident and filed the complaint which is
produced at Exh. 16. That she was studying in standard
nine and her date of birth is 20.09.1998 and she has
produced her birth certificate at Exh. 17.
During the cross-examination by the learned advocate
for the accused, the witness has stated that she has no one
in her family and she stayed with her aunt for eight years.
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She did not like staying with her aunt and uncle as they
would beat her and not give her food and she had left their
house of her own free will and had gone to her grandfather's
house where she lived for two to three days. That she left
her grandfather's house of her own free will as they shouted
at her. That when she left the house of aunt and uncle, she
had ₹500/- to ₹600/- with her and she went in a rickshaw
to Palanpur Patia, where her aunt lived. The name of her
aunt is Minaben Natubhai Patel and her Uncle is doing
carpentry work. That her aunt came to know her
whereabouts and took her to the Ankleshwar Police Station
from where she was sent to Nari Suraksha Kendra. That she
did not know the accused prior to the incident and in her
complaint, she has not stated that the accused put a cloth
in her mouth so that she could not shout and she has not
stated that the accused had threatened to kill her.
8.2 The prosecution has examined PW2 - Behcharbhai
Dahyabhai Prajapati at Exh. 19 and the witness is the
grandfather of the victim who has stated that he had filed a
missing person's report in the Ankleshwar Police Station
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and the police had brought the victim and taken her to the
Nari Suraksha Kendra. During the cross-examination, the
witness stated that he has no personal knowledge about the
incident and the victim had left his house without informing
them and had returned ten days after they had filed the
missing person's report in Ankleshwar Police Station. That
the victim had refused to come to his house and had run
away from the Nari Suraksha Kendra on 25.03.2012. That
in his statement before the police he had stated that on
17.05.2012, he had received a phone call from Nari
Suraksha Kendra, Bharuch that the victim was found and
he had thereafter gone to meet the victim.
8.3 The prosecution has examined PW3 - Chhayaben
Bachubhai Bhatia at Exh. 20 and the witness was working
as the In-charge Superintendent of Nari Suraksha Kendra,
Bharuch. On 25.03.2012, the victim and Komal Nilkanth
Marathe ran away from the institution and the 'A' Division
Police Station was informed and they searched for both the
girls. Komal returned to the institute on 30 th but the victim
did not return till 17.04.2012 and two ladies came to drop
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her at the institution. As she was out for a long time, the
Chairman of the Child Welfare Committee instructed her to
get her medical checkup done and she was taken to Civil
Hospital Bharuch, where she informed about the incident
and the 'C' Division Police Station was informed. When the
victim came to the institution, she told them about the
incident.
During the cross-examination, the witness has stated
that in her statement before the police, she has stated that
the behaviour of Komal was different from the other girls
and the victim was residing in the same room with Komal
and they were keeping a strict watch on Komal, but not on
the victim. That Komal had returned on 30.03.2012 but the
victim remained outside for 24 days and did not come on
her own but Kantaben - the mother of Mukesh and one
Ambaben brought her back to the institution. The victim
had told her that she was living in the train and garden with
Mukesh for many days. That Komal did not tell them
anything about the incident and an information was sent by
the doctor and the complaint was filed.
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8.4 The prosecution has examined PW4 - Pushpaben
Sakarlal Vasava at Exh. 21 and the witness was working as
a peon in Nari Suraksha Kendra at Bharuch. The witness
has stated that Komal and the victim ran away and after
sometime, Komal returned to the institution on her own but
the victim returned with Kantaben and Ambaben on
17.04.2012. That she had gone for the medical checkup
with the victim and the victim had told the doctor about the
incident.
8.5 The prosecution has examined PW5 - Bhupatbhai
Gumanbhai Patanwadia at Exh. 22 and PW8 - Naveenbhai
Rathorebhai Vasava at Exh.36. Both the witnesses are the
panch witnesses by which the clothes of the victim were
seized by the investigating officer. The witnesses have not
supported the case of the prosecution and they have stated
that they were called to the Jhadeshwar Chowki and asked
to affix their signatures on some papers but they do not
know on what papers they had affixed their signatures and
have merely identified their signatures on the panchnama
produced at Exh. 23.
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8.6 The prosecution has examined PW6 - Deepakbhai
Gopalbhai Thakkar at Exh. 32 and the witness is the
Medical Officer who was on duty on 20.04.2012 at General
Hospital, Bharuch and the victim was examined by him. In
the history, the witness has stated that the victim, in the
history, had stated that on 25.02.2012, her grandfather had
kept her at Nari Suraksha Kendra and on 25.03.2012, she
and Komal Nilkanth Marathe ran away from the Nari
Kendra. That they had gone to Munniben's house and
stayed with her daughter - Rehena at Bharuch and on the
next day i.e. 26.03.2012, they met Kiran and went to the
river bank and Kiran, raped her and thereafter, they went to
the railway station in rickshaw and met Rahul @ Sandip
and they went for dinner and to see a movie. Thereafter, she
was taken to a small hut and threatened and raped and on
27.03.2012, she separated from Komal and stayed for 15
days at Vadodara and returned to the Nari Gruh on
17.04.2012. On examination, there were no injuries and as
per the opinion of the witness, there was no probability of
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intercourse in the last 72 hours and she had undergone
repeated intercourse in the past.
8.7 The prosecution has examined PW - Dr. Sheetal
Sunderlal Ehari at Exh. 34 and the witness is the Medical
Officer at Civil Hospital, Bharuch who had examined the
victim and as per the say of the witness, the victim had
narrated the same facts as stated before PW6. As per the
opinion of the witness, there were no injuries found on the
body of the victim and she was sent for age verification to
SSG Hospital, Vadodara and the victim was habitual to
intercourse in the past. The witness has produced the
medical certificate at Exh. 33.
8.8 The prosecution has examined PW9 - Kishorebhai
Bhikhabhai Patanvadiya at Exh. 37 and the witness is the
panch witness of the panchnama of the place of offence
produced that Exh. 38. The witness has stated that on
18.04.2012, he was on the highway at Jhadeshwar doing
his business of peanuts and at that time, the police came
and asked him to affix his signature on the panchnama. He
had not gone anywhere with the police. The witness has not
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supported the case of the prosecution and has been
declared hostile and he has denied that in his presence, a
mattress was seized by the Investigating Officer.
8.9 The prosecution has examined PW10 - Dr. Vijaykumar
Motiram Bavishkar at Exh. 40 and the witness is the
Medical Officer who has examined the accused and has
produced the medical certificates at Exh. 42 and 43
respectively. The witness has stated that no injury marks
were found on the bodies of both the accused and from the
examination, there was nothing to suggest that the accused
were incapable of performing sexual intercourse.
8.10 The prosecution has examined PW11 - Arvindbhai
Kalidas Parmar at Exh. 44 and PW13 - Jagdishbhai
Bhikhabhai Parmar at Exh. 52. Both the witness are the
panch witness of the panchnama produced at Exh. 45,
whereby, the mother of the accused no. 1 - Meenakshiben
widow of Govindbhai Chauhan produced the clothes worn
by the accused no. 1 at the time of the incident and the
panchnama produced at Exh. 46, whereby, the accused no.
2 was arrested. The witnesses have not supported the case
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of the prosecution and have submitted that they were called
to the police station and they have merely affixed their
signatures on the panchnamas and the panch slips. During
the cross-examination by the learned APP, nothing to
support the case of the prosecution has come on record.
8.11 The prosecution has examined PW14 - Himmatbhai
Madhavbhai Parmar at Exh. 53 and PW15 - Ashokbhai
Bhogilal Rana at Exh. 58. Both the witnesses are the panch
witnesses of the panchanama produced at Exh. 54,
whereby, the Investigating Officer seized the clothes of the
accused no. 2 from the custody of Unarmed Head Constable
- Dawoodbhai Noorbha Bhatti who had brought the clothes
from Sub Jail, Bharuch. Both the witnesses have not
supported the case of the prosecution and have stated that
on 20.04.2012, while they were standing at Jhadeshwar
Crossroads, the police had asked them to affix their
signatures on panchnamas which were prepared and they
had merely affixed their signatures. No clothes were seized
in their presence and both the witnesses have been declared
hostile and during the cross-examination by the learned
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APP, nothing to support the case of the prosecution has
come on record.
8.12 The prosecution has examined PW16 - Kantibhai
Haribhai Patel at Exh. 61 and the witness is the Talati Cum
Mantri of Kharach, Taluka Hasot, District Bharuch and he
has produced the extract of the Birth and Death Register at
Exh. 62. The witness has stated that at serial no. 37, the
birth of the victim is registered on 02.10.1998, wherein, the
date of birth of the victim is 20.09.1998 and the entry was
made on the basis of the information provided by
Kushalbhai Madhavbhai Prajapati.
During the cross-examination, the witness has
admitted that he was deposing on the basis of the record
and generally the birth is noted after the information is
received from the hospital. That if a birth is directly
registered, they inquire about the same and he does not
know on what basis is the birth of the victim entered in the
record.
8.13 The prosecution has examined PW17 - Bhagwanbhai
Govindbhai Chauhan at Exh. 64 and the witness was the
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PSO of Bharuch City 'C' Division Police Station on
18.04.2012 and he had registered the complaint of the
victim at C. R. No. 48 of 2012 under section 376(g) and
506(2) of the IPC. The witness has produced the extract of
the Station diary at Exh. 65.
8.14 The prosecution has examined PW18 - Abhijitsinh
Madhavsinh Parmar at Exh. 69 and the witness is the
Investigating Officer who has narrated in detail the
procedure that he had undertaken during investigation. The
witness stated that he had sent the muddamaal to the FSL
along with the certificate and the report from the FSL was
received which is produced at Exh. 74. During the cross-
examination by the learned advocate for the accused, the
witness has stated that during investigation, it was found
that the victim had voluntarily left the house of her uncle
and aunt and grandparents, and her parents had expired.
That she had gone on her own volition to the Naari
Suraksha Kendra and at the time of the incident, she had
ran away from the Nari Suraksha Kendra with Komal.
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8.15 The prosecution has examined PW19 - Babulal
Amathalal Sharma at Exh. 76 and the witness was working
as the Police Inspector, 'C' Division Police Station, Bharuch
and he had filed the charge-sheet against the accused.
9. With regard to the facts in the present case, it would
be fit to refer to the observations made the Apex Court in
The State of Punjab vs Gurmit Singh & Ors reported in
1996 2 SCC 384 has observed in para 8 as under:
"8.......The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just
to make a humiliating statement against her honour
such as is involved in the commission of rape on her.
In cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepencies
in the statement of the prosecutrix should not, unless
the discrepencies are such which are of fatal nature,
be allowed to throw out an otherwise reliable
prosecution case. The inherent bashfulness of the
females and the tendency to conceal outrage of sexual
aggression are factors which the Courts should not
overlook. the testimony of the victim in such cases in
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vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement,
the courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to convict
an accused where her testimony inspires confidence
and is found to be reliable. Seeking corroboration of
her statement before relying upon the same, as a rule,
in such cases amounts to adding insult to injury. Why
should the evidence of a girl or a woman who
complains of rape or sexual molestation, be viewed
with doubt, disbelief or suspicion ? The Court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in
the outcome of the charge levelled by her, but there is
no requirement of law to insist upon corroboration of
her statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost at
par with the evidence of an injured witness and to an
extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not
found to be self inflicted, is considered to be a good
witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence
is entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every
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case of rape. Corroboration as a condition for judicial
reliace on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under
given circumstances. It must not be overlooked that a
woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another
person s lust and it is improper and undesirable to test
her evidence with a certain amount of suspicion,
treating her as if she were an accomplice. Inferences
have to be draw from a given set of facts and
circumstances with realistic diversity and not dead
unifomity test that type of rigidity in the shape of rule
of law is introduced through a new form of testimony
tyranny making justice a casualty. Courts cannot cling
to a fossil formula and insist upon corroboration even
if, taken as a whole, the case spoken of by the victim of
sex crime strikes the judicial mind as probable.......
9.1 The Apex Court in Sadashiv Ranarohadbe V. State of
Maharashtra & Anr. reported in 2006 10 SCC 92 has
observed in Para 9 as under:
"9. It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it
is capable of inspiring confidence in the mind of the
court. If the version given by the prosecutrix is
unsupported by any medical evidence or the whole
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surrounding circumstances are highly improbable and
belie the case set up by the prosecutrix, the court shall
not act on the solitary evidence of the prosecutrix. The
courts shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case is
improbable and unlikely to happen.
9.2 The Apex Court in The State of Himachal Pradesh V.
Manga Singh reported in 2019 16 SCC 759 has observed in
Para 11 and 12 as under:
11. The conviction can be sustained on the sole
testimony of the prosecutrix, if it inspires confidence.
The conviction can be based solely on the solitary
evidence of the prosecutrix and no corroboration be
required unless there are compelling reasons which
necessitate the courts to insist for corroboration of her
statement. Corroboration of the testimony of the
prosecutrix is not a requirement of law; but a guidance
of prudence under the given facts and circumstances.
Minor contractions or small discrepancies should not
be a ground for throwing the evidence of the
prosecutrix.
12. It is well settled by a catena of decisions of the
Supreme Court that corroboration is not a sine qua
non for conviction in a rape case. If the evidence of the
victim does not suffer from any basic infirmity and the
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'probabilities factor' does not render it unworthy of
credence. As a general rule, there is no reason to insist
on corroboration except from medical evidence.
However, having regard to the circumstances of the
case, medical evidence may not be available. In such
cases, solitary testimony of the prosecutrix would be
sufficient to base the conviction, if it inspires the
confidence of the court.
9.3 With regard to the quality of evidence of the witness,
the Apex Court in Rai Sandeep @ Deepu & Anr. V. State of
NCT of Delhi reported in 2012 8 SCC 21 has observed in
Para 15 as under:
15. In our considered opinion, the 'sterling witness'
should be of a very high quality and caliber whose
version should, therefore, be unassailable. The Court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from
the starting point till the end, namely, at the time
when the witness makes the initial statement and
ultimately before the Court. It should be natural and
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consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the
version of such a witness. The witness should be in a
position to withstand the cross-examination of any
length and strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as, the sequence of it. Such a version should have co-
relation with each and everyone of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty
of the offence alleged against him. Only if the version
of such a witness qualifies the above test as well as all
other similar such tests to be applied, it can be held
that such a witness can be called as a 'sterling witness'
whose version can be accepted by the Court without
any corroboration and based on which the guilty can
be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
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match the said version in material particulars in order
to enable the Court trying the offence to rely on the
core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.
9.4 Similarly, the Apex Court in Krishan Kumar Malik V.
State of Haryana reported in 2011 7 SCC 130 has observed
in Para 31 as under:
31. No doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary
evidence of prosecutrix is sufficient provided the same
inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling
quality. But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, have already
been projected hereinabove, would go to show that her
evidence does not fall in that category and cannot be
relied upon to hold the Appellant guilty of the said
offences. Indeed there are several significant variations
in material facts in her Section 164 statement, Section
161 statement (Code of Criminal Procedure), FIR and
deposition in Court. "
9.5 The Apex Court in Rajoo & Ors. V. State of M.P. & Anr.
reported in 2008 15 SCC 133 has observed in Para 9 as
under:
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9. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspect and should be believed, the
more so as her statement has to be evaluated at par
with that of an injured witness and if the evidence is
reliable, no corroboration is necessary. Undoubtedly,
the aforesaid observations must carry the greatest
weight and we respectfully agree with them, but at the
same time they cannot be universally and
mechanically applied to the facts of every case of
sexual assault which comes before the Court. It cannot
be lost sight of that rape causes the greatest distress
and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The
accused must also be protected against the possibility
of false implication, particularly where a large number
of accused are involved. It must, further, be borne in
mind that the broad principle is that an injured
witness was present at the time when the incident
happened and that ordinarily such a witness would
not tell a lie as to the actual assailants, but there is no
presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration. Reference
has been made in Gurmit Singh's case to the
amendments in 1983 to Sections 375 and 376 of the
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India Penal Code making the penal provisions relating
to rape more stringent, and also to Section 114A of the
Evidence Act with respect to a presumption to be
raised with regard to allegations of consensual sex in a
case of alleged rape. It is however significant that
Sections 113A and 113B too were inserted in the
Evidence Act by the same amendment by which
certain presumptions in cases of abetment of suicide
and dowry death have been raised against the
accused. These two Sections, thus, raise a clear
presumption in favour of the prosecution but no
similar presumption with respect to rape is visualized
as the presumption under Section 114A is extremely
restricted in its applicability. This clearly shows that in
so far as allegations of rape are concerned, the
evidence of a prosecutrix must be examined as that of
an injured witness whose presence at the spot is
probable but it can never be presumed that her
statement should, without exception, be taken as the
gospel truth. Additionally her statement can, at best,
be adjudged on the principle that ordinarily no injured
witness would tell a lie or implicate a person falsely.
We believe that it is under these principles that this
case, and others such as this one, need to be
examined.
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9.6 With regard to the facts in the present case regarding
proof of date of birth of the victim, it would be fit to refer to
the observations made the Apex Court in Satpal Singh V.
State of Haryana reported in 2010 8 SCC 714 in para 27
which reads as under:
"27. Thus, the law on the issue can be summerised
that the entry made in the official record by an official
or person authorised in performance of an official duty
is admissible under Section 35 of the Evidence Act but
the party may still ask the Court/Authority to examine
its probative value. The authenticity of the entry would
depend as on whose instruction/information such
entry stood recorded and what was his source of
information. Thus, entry in school register/certificate
requires to be proved in accordance with law. Standard
of proof for the same remains as in any other civil and
criminal case."
9.7 The Apex Court in Kalpana Mehta & Ors. V. Union of
India & Ors. reported in 2018 7 SCC 1 has observed in Para
69 as under:
"69. According to Section 74 documents forming the
acts, or records of the acts of Legislature of any part of
India is a public document. We have noticed above
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that Parliament has already adopted report of privilege
committee that for those documents which are public
documents within the meaning of Indian Evidence Act,
there is no requirement of any permission of Speaker
of Lok Sabha for producing such documents as
evidence in Court. We may, however, hasten to add
that mere fact that a document is admissible in
evidence whether a public or private document does
not lead to draw any presumption that the contents of
the documents also are true and correct."
10. Having heard learned advocates appearing for the
respective parties and having gone through the materials on
record the only question that arises for determination in
this appeal is whether in the facts and circumstances of the
present case, the learned Trial Court was justified in
passing the order of conviction under Sections 376(g) and
506(2) of the IPC solely relying on the deposition of the
victim as a sterling witness and whether the learned Trial
Court has rightly relied upon the birth certificate of the
victim produced at Exh. 17?
11. It is the case of the prosecution that the victim was a
minor on the date of the incident and her birth certificate is
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produced at Exh. 17. We find that the birth certificate of the
victim has been produced in her own deposition where she
has stated that her date of birth is 20.09.1998 and she has
produced her birth certificate at Exh. 17. The prosecution
has examined PW16 - Kantibhai Haribhai Patel, Talati cum
Mantri, Kharach, Taluka Hansot, District Bharuch and he
has produced the extract of the Births and Deaths Register
at Exh. 62, wherein, at serial no. 37, the name of the victim
has been entered in the record on the basis of the
information given by Kushalbhai Madhavbhai Prajapati. The
witness has stated that generally the birth is registered as
per the information given from the hospital but sometimes
the birth is directly registered but he does not know under
what circumstances the birth of the victim has been
registered. The prosecution has not examined Kushalbhai
Madhavbhai Prajapati and there is no evidence on what
basis, the birth of the victim has been registered. It is
settled principle of law that the authenticity of the entry in
the register would depend upon the source of information
and it is required to be approved in accordance with law but
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the prosecution has not proved the contents of the
document produced at Exh. 17 beyond reasonable doubts
and on mere production of the document, it cannot be
presumed that the contents of the document are correct.
Hence in light of the judgments of the Apex Court in Satpal
Singh (Supra) and Kalpana Mehta (Supra) we find that the
learned Trial Court was not justified in relying upon the
document produced at Exh. 17.
12. We have minutely dissected the evidence of the victim
to examine whether it can be said that her deposition is of
sterling quality and her say is an assailable version and
whether it can be accepted at its face value without any
corroborating evidence. It is settled law that the evidence of
a victim stands at par with the evidence of an injured
witness and is reliable and can be acted upon even without
corroboration if it is found to be of a sterling quality. As per
the case of the prosecution, the incident has occurred while
the victim fled away from Nari Suraksha Kendra, Bharuch
with Komal on 25.03.2012 and they resided for one night at
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the place of Rehana - the daughter of one Munnibai who
was known to Komal. It is pertinent to note that the
prosecution has not examined Komal who was the friend of
the victim and had fled away from the Nari Suraksha
Kendra along with the victim. At the time of the incident,
Kamal was with the victim and as per the victim, the
incident of rape has occurred twice, once while both of them
were with Kiran and Babu and at that time, Kiran, Babu
and Komal sat in the rickshaw and she started walking and
Kiran came from behind her, removed her clothes and raped
her. This incident is said to have occurred in a public place
but she did not mention about the incident to Komal or
Babu and continued to accompany them to see a movie at
Relief Talkies. That she preferred to be in the company of
Kiran and Babu and thereafter, the four of them left the
movie midway and they asked Kiran and Babu for a place to
stay and while they were going to see the place where they
were to stay for the night, Komal went to answer nature's
call and she, along with both the accused went into the
room where the second incident of rape has occurred and
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both Kiran and Rahul raped her. That she met Komal
immediately after the incident but she did not tell Komal
about the incident and there is nothing on record to show
where the victim and Komal spent the night. As per the say
of the victim, the next morning she met Mukesh and she
stayed with Mukesh for many days till she went back to the
Nari Suraksha Kendra on 15.04.2012 and the complaint
was filed on 17.04.2012. The prosecution has not examined
Mukesh with whom the victim was from 25.03.2012 to
15.04.2012 and even thereafter, as per the victim, Mukesh
took her to the house of his aunt at Naldhari, Valiya where
she resided for two days but she did not inform the aunt of
Mukesh about the incident. If the evidence of the victim is
perused, the deposition does not appear to be natural and
consistent with the case of the prosecution and the acts of
the victim to not reside with her Aunty and Uncle or
Grandfather and thereafter, running away from the Nari
Suraksha Kendra with Komal and both of them joining the
company of Kiran and Rahul without knowing them, does
not appear to be natural. The prosecution has not examined
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Komal, Ravi @ Babubhai, Munnibai, Rehana, Mukesh or his
Aunt to corroborate the say of the victim that in fact she
had met them or that she stayed with them for some time
and except for the say of the victim, there is no iota of
evidence in the case of the prosecution regarding the
whereabouts of the victim from 25.03.2012 to 15.04.2012.
Even if we do not seek for corroboration regarding the
actual sexual assault, the other aspects are required to be
proved by some corroboration at least regarding the
whereabouts of the victim and whether she was at the
places and in the company of persons, as stated by her
during the time period from 25.03.2012 to 15.04.2012. We
find that the deposition of the victim has many
discrepancies and the evidence does not inspire confidence
and cannot be relied upon without some corroboration to
satisfy our judicial conscience. The prosecution has not
examined the Aunty and Uncles of the victim who could
throw some light on the reasons why the victim was at the
Nari Surakhsha Kendra or even her date of birth and who
was Khushalbhai Madhavbhai Prajapati. We find that the
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case of the prosecution, as per the version of the victim,
seems highly improbable and suffers from various lacunae
and the deposition of the victim does not fall in the category
of a "sterling witness" and it would not be in the fitness of
things to solely rely on the evidence of the victim to convict
the accused.
13. In view of the above discussions, we of the considered
opinion that the prosecution has not fully proved the case
beyond reasonable doubt to come to a conclusion about the
guilt and the involvement of the appellants in the offence
and there is no legal evidence on record to sustain the
conviction of the appellants. The learned Trial Court has not
appreciated the evidence in proper perspective and we are of
the considered opinion that the evidence adduced by the
prosecution is not sufficient to come to a finding that the
accused have committed the offence and can be convicted
for the same and consequently, Criminal Appeal No. 648 of
2015 and Criminal Appeal No. 747 of 2014 are allowed. The
conviction of the appellants under Section 376(g) 506(2) of
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the IPC is hereby set aside. The appellants shall be set at
liberty, forthwith if not required to be detained in
connection with any other offences. Fine, if any, paid by the
appellants be refunded.
14. Registry is directed to send the R & P back to the
learned Trial Court and maintain the copy of this judgement
in Criminal Appeal No. 648 of 2015.
(ILESH J. VORA,J)
(S. V. PINTO,J)
VASIM S. SAIYED
