Gujarat High Court
State Of Gujarat vs Virendrasinh Ajitsinh Makwana on 2 July, 2025
NEUTRAL CITATION
R/CR.A/25/2013 JUDGMENT DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 25 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
VIRENDRASINH AJITSINH MAKWANA
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
SHRIKAR H BHATT(2573) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 02/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY)
1. The respondent herein is the sole accused in Sessions
Case No.41 of 2009 on the file of 4 th Additional Sessions
Judge, Bharuch. He was prosecuted for the offences
punishable under Sections 376 and 506(2) of the Indian Penal
Code and under Section 67 of the Information Technology Act.
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Eventually after trial, the respondent was acquitted of the said
charges as he was found not guilty for the said offences.
2. Aggrieved by the said judgment of acquittal, the State
has preferred the instant appeal questioning the legality and
validity of the impugned judgment of acquittal.
3. When the appeal came up for hearing, we have heard
learned APP Mr. Bhargav Pandya and learned advocate
Mr.Nirmal C. Shekhavat appearing on behalf of learned
advocate Mr. Shrikar H. Bhatt for the respondent-accused.
4. We have perused the record and the evidence and
considered the same.
5. Briefly stated, it is the case of the prosecution that the
victim girl is aged about 20 years. The accused is aged about
21 years. Both of them are residents of the same locality and
living in the same vicinity. It is stated that in the month of
October, 2008, on an unknown date, at about 9:30 a.m. in the
morning, the accused has taken the victim on to the terrace of
Mayka Institute of Millennium Complex market which is
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opposite to MK College and on the terrace, he had forcible
sexual intercourse with her against her consent and thereby
raped her. He has stripped off her clothes and has taken her
nude video in his mobile and thereafter he has threatened the
victim girl with a dire consequences if she discloses about the
incident to anyone and also threatened to make the said video
viral.
6. Thereafter she did not inform about the incident to
anyone including her parents. But she lodged a report with
the police after three months from the date of incident on
09/01/2009. The police registered a case for the offences
punishable under Sections 376 and 506(2) of the Indian Penal
Code and under Section 67 of the Information Technology Act.
The case was investigated. The victim was sent for medical
examination. Initially she was examined in the hospital at
Bharuch and thereafter she was referred to SSG Hospital,
Vadodara for an expert examination to find out whether there
is any rape on her or not. The doctors who examined her
found that her hymen was torn and one or two fingers are
admitting into her vagina. They did not find that there are
any signs or evidence of forcible sexual intercourse or rape in
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their examination as can be seen from the medical certificate
issued to that effect.
7. After completion of the investigation, the police filed
charge sheet against the accused for the aforesaid offences.
The committal court has committed the said case to the court
of sessions division. Thereafter, it was made over to learned
4th Additional Sessions Judge, Bharuch for trial and charges
for the offences punishable under Section 376 and 506(2) and
under Section 67 of the Information Technology Act were
framed. He denied the said charges and claimed to be tried.
8. During the course of trial, PW-1 to PW-18 witnesses
were examined and 23 exhibits were marked to prove the case
of the prosecution against the accused.
9. At the end of the trial, after considering the oral and
documentary evidences and on appreciation of the same, the
trial court found the accused not guilty of the said charges
and acquitted the accused.
10. Feeling aggrieved by the said judgment of acquittal, the
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State has preferred the present appeal assailing the legality
and validity of the impugned judgment of trial court.
11. The defense that was taken by the accused is that there
was a love affair between him and the victim girl and she has
voluntarily participated in the sexual intercourse that was
taken between both of them with her consent and that it was
not a case of rape. He has also produced about 36
photographs showing the intimacy between him and the
victim girl examined as PW-14 to prove that there was a love
affair between both of them and intimacy between both of
them.
12. Admittedly, the victim girl is a major girl aged about 20
years at the time of incident which allegedly took place in the
month of October, 2008. As per the version of the
prosecution, the offence took place in a broad day light during
day time at about 9:30 a.m. on the terrace of Mayka Institue
of Millennium Complex market opposite to MK College. It is
the version of the victim that the accused has taken her on to
the top of terrace of the said Millennium Complex market and
committed rape on her on the terrace. Though is stated by
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her in her examination-in-chief that she was taken by the
accused to the terrace, it is significant to note that in the
cross examination she stated that the accused did not take her
to the terrace. Thus, she has prevaricated from her statement
given in her examination-in-chief in her cross examination.
This inconsistency in her evidence regarding the allegation
that she was taken by the accused on to the terrace proves
that the said allegation made by her in the FIR and her
examination-in-chief that the accused took her to the terrace
is absolutely false. A careful perusal of her evidence shows
that she has voluntarily accompanied the accused on to the
terrace. The Mayka Institute of Millenium Complex market is
a public place which is situated opposite to MK College in a
busy locality. It is unbelievable to state that the accused has
forcibly took her on the terrace of said complex which is in a
market place and that too during day time at 9:30 a.m. in the
morning. So, it clearly indicates and proves that she has
voluntarily accompanied the accused on to the terrace of the
said complex during the day time.
13. As can be seen from the medical evidence i.e. from the
medical reports and the evidence of the doctor, no injuries are
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found on her body. We do not find any signs of rape
mentioned in the said medical reports and also in the evidence
of the doctor. The doctor opined that her vagina was torn and
one or two fingers are being admitted into her vagina. When
it stated that her clothes were stripped off by the accused, she
is expected to resist him and in the said resistance or struggle
definitely some injury should be caused to her on her body.
No such injuries are found on her body in the medical
examination. It indicates that there was no resistance from
her even when her clothes were stripped off. This
circumstance clearly and clinchingly proves that she has
voluntarily accompanied the accused and if at all there is any
sexual intercourse between both of them that it was a
consensual sexual intercourse between both of them and it is
a clear case of consent. We have already noticed that she is a
major girl aged about 20 years.
14. The evidence on record shows that both of them are
known to each other as they are residing in the same vicinity.
One glaring fact that is required to be noticed in this case is
that, according the prosecution, the alleged incident took
place in the month of October, 2008 on an unknown date at
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9:30 a.m. in the morning. She did not disclose about the
incident to anyone including to her parents or family
members. Three months thereafter, in the month of January,
i.e. on 09/01/2009, she lodged a report with the police. There
is an inordinate delay in lodging the FIR. Though every delay
in lodging the FIR is not fatal to the case of the prosecution,
the court expects some explanation from the prosecutrix in
lodging the report with such an inordinate delay of three
months. No explanation is forthcoming to explain the said
delay. Therefore, her silence for a period of three months,
absence of injury on her body, absence of resistance from her,
absence of any medical evidence relating to forcible sexual
intercourse or rape clearly proves that there was no offence of
rape committed on the victim PW-14.
15. The photographs which are available on record
absolutely leave no room to entertain any doubt that both of
them had a love affair with each other and they are moving
very closely. The intimate relationship between both of them
is very much apparent and evident from the said photographs.
So, as both of them are in relationship with each other on
account of their love affair and as they are moving together
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closely, it cannot be said under any stretch of reasoning or
imagination that the accused had forcibly took her on to the
top of the terrace and committed rape on her. It is a
deliberate false case filed by her against the accused for the
reasons best known to her subsequently.
16. The trial court after considering the evidence on record
and particularly the medical evidence and the aforesaid
photographs and on appreciation of the said evidence arrived
at a conclusion that there was no offence of rape committed
by the accused and thereby recorded a finding of acquittal in
favour of the accused and against the prosecution.
17. We absolutely do not find any manifest error or patent
illegality in the said judgment of acquittal. Upon considering
said evidence on record and on reappraisal of the same, we
are also of the firm view that both the accused and the victim
had an affair with each other which is evident from the
photographs and if at all there is any sexual intercourse
between both of them that it is consensual sexual intercourse
that took place with a clear consent of the victim and no
offence of any rape or the offence of criminal intimidation was
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committed by the accused. As the video said to have been
recorded by the accused is not seized and available on record,
the offence under Section 67 of the Information and
Technology Act is also not proved. So the impugned judgment
of acquittal of the trial court is perfectly sustainable in law
and it calls for no interference in this appeal.
18. In fine, the appeal is dismissed affirming the impugned
judgment of the trial court. Bail bond of the accused, if any,
shall stand discharged.
19. Record and proceedings be sent back forthwith to the
concerned court.
(CHEEKATI MANAVENDRANATH ROY, J)
(D. M. VYAS, J)
ILA
