Gujarat High Court
Sahista D/O Harun Chand Kalvani vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.A/1304/2023 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1304 of 2023
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SAHISTA D/O HARUN CHAND KALVANI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HITESH S PADHYA(3877) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Opponent(s)/Respondent(s) No.
2,3,4,5,6,7
MR BHARGAV PANDYA, APP 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 : 03/07/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. Respondent nos.2 to 7 are accused nos.1 to 6 in Sessions
Case No.10 of 2021 on the file of learned Second Additional
Sessions Judge, Gir Somnath at Veraval. They were prosecuted
for the offences punishable under Sections 365, 376 (2) (N),
504, 506 (2) and 114 of the Indian Penal Code. Eventually,
after the trial of the case, they were all acquitted of the said
charges by the impugned judgment of acquittal.
2. Aggrieved by the said judgment of acquittal, the
prosecutrix filed this appeal questioning the said judgment of
acquittal. The State did not prefer any appeal against the said
judgment of acquittal.
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3. Initially, coordinate Bench of this Court issued notice to
respondent nos.2 to 7 before admission. Pursuant to receipt of
the said notice, learned advocate Mr.Chintan Popat made his
appearance on behalf of respondent nos.2 to 7.
4. Heard Mr.Hitesh Padhya, learned counsel for the
appellant, Mr.Bhargav Pandya, learned Additional Public
Prosecutor for the first respondent-State and Mr.Divyang Joshi
for Mr.Chintan Popat, learned counsel for respondent nos.2 to
5. The main allegation against the accused no.1 is that he
had kidnapped the prosecutrix, who is a major girl aged about
20 years, from her lawful guardianship and, thereafter had
forcible sexual intercourse with her and, thereby committed
rape on her and thereafter threatened her with dire
consequences. The accused nos.2 to 6 are all relatives and
friends of accused no.1. So, it is stated that they abetted
accused no.1 to commit the said offences. In essence, it is the
substance of the accusation made by the prosecution against
the accused.
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6. To substantiate the case of the prosecution, although
about 41 witnesses were cited in the charge-sheet, ultimately,
only six witnesses were examined during the course of trial.
Two of them are official witnesses, one is investigating officer
and the other is the PSO, who registered the FIR. The other
four witnesses are prosecutrix, her father and their relatives.
7. The defence of the accused is total denial of the case of
the prosecution and the allegations ascribed against him
relating to the alleged kidnap and rape of the prosecutrix. It is
his specific case that accused no.1 and prosecutrix were in
love with each other and they both together eloped and lived
together and, that thereafter they married each other. It is the
further contention of the accused, as per the defence taken by
him that initially when there was a quarrel between the
accused and the family members of the prosecutrix i.e. with
her father and others, that a report was lodged by the accused
no.1 with police and a case under Section 323 of IPC and other
sections was registered against them and that thereafter the
present case was foisted against the accused, as a
counterblast to the said case registered at the instance of the
accused no.1.
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8. The trial Court, after considering the evidence on record
and on appreciation of the same, found that there was a love
affair between both the accused no.1 and the prosecutrix and
there was no offence of kidnap committed by accused no.1 and
no offence of rape was also committed by accused no.1 on the
prosecutrix. The trial Court also found that there was a
marriage subsequently between accused no.1 and the
prosecutrix and, thereby the trial Court completely dis-believed
the case of the prosecution and acquitted all the accused of
the said charges.
9. Now, learned counsel for the appellant strenuously
contended before this Court that the alleged marriage between
the accused no.1 and the prosecutrix was performed by force
at the instance of accused no.1 and the prosecutrix was made
to sign in the Nikahnama by force and it is not a valid
marriage. He would also submit that divorce case was also
filed by her in the competent Civil Court and it is pending.
10. As can be seen from the cross-examination of the
prosecutrix examined as PW-1, she categorically admitted that
there was love affair between her and accused no.1.
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Admittedly, she is major aged about 20 years. Therefore, when
there is a love affair between the prosecutrix and the accused
no.1, the allegations ascribed against accused no.1 by the
prosecution that he has kidnapped the prosecutrix and
thereafter committed rape on her cannot be believed. If at all
they both had any sexual intercourse, since she is a major, it is
a consensual sexual intercourse that took place between them,
with her consent and not by force. The doctor, who has
examined her, was not examined in this case to prove that
forcible sexual intercourse was performed on her. Although
learned counsel for the appellant relied on a judgment of the
Apex Court rendered in the case of State of Madhya
Pradesh v. Dayal Sahu, 2005 (0) GLHEL-SC 35789,
wherein it is held that non-examination of the doctor is not
fatal in a case under Section 376 of IPC, when the solitary
testimony of the prosecutrix is trustworthy and believable, the
said judgment has no application to the facts of the present
case. The facts of the case in the said reported judgment are
distinguishable when compared to the facts of the present
case. So, it is of no avail to the case of the appellant.
11. When a major girl aged about 20 years, who had a love
affair with accused no.1 moved voluntarily with him and if she
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had any voluntary sexual intercourse with him, as rightly held
by the trial Court, no case under Section 365 or 376 of IPC is
made out from the facts of the case. For the same reasons, no
case under Section 504, 506 (2) and 114 of IPC is also made
out from the facts of the case.
12. The trial Court after considering the evidence on record
and proper appreciation of the same arrived at a right
conclusion and acquitted the accused. Upon considering the
said evidence on record and on reappraisal of the same, we
are also of the considered view that no case is made out for
any of the charges that are levelled against them.
13. It is settled law that when the judgment of the trial Court
in acquitting the accused is based on proper appreciation of
evidence on record and when the findings recorded by the trial
Court are not perverse, the appellate Court would be slow in
interfering with the said judgment of acquittal, and unless the
findings are perverse based on erroneous appreciation of
evidence, the appellate Court will not interfere with the said
judgment of acquittal. Upon considering the facts and
circumstances of the case and the evidence on record, we
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absolutely find no valid legal ground to entertain this appeal,
even to admit the same for hearing. Therefore, the appeal fails
and same is liable to be rejected.
14. Resultantly, the appeal is dismissed at admission stage.
15. Before parting with the matter, we would like to make it
clear that we are not going into the disputed question of fact
relating to the forceful marriage, alleged to have taken place
between the accused no.1 and the prosecutrix, as contended
by learned counsel for the appellant. A divorce case is pending
in the Civil Court. Therefore, we are not going into the merits
of the said contention relating to validity of the said marriage.
It is left open for the parties to pursue their remedy in the
competent Civil Court relating to validity of the said marriage.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J)
Sd/-
(D. M. VYAS, J)
R.S. MALEK
