Gujarat High Court
State Of Gujarat vs Kantilal Karshanbhai Harijan on 6 June, 2025
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R/CR.A/320/2000 JUDGMENT DATED: 06/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 320 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KANTILAL KARSHANBHAI HARIJAN
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Appearance:
PUBLIC PROSECUTOR for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MS SHUBHA B TRIPATHI(5597) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 06/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The State has preferred the present Appeal under the
provisions of Section 378(1) (3) of the Criminal Procedure
Code, 1973 (for short the 'Cr.P.C') against the judgment and
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order of acquittal dated 04.02.2000 passed by the learned
Additional Sessions Judge, Rajkot in Sessions Case No.
143/1999.
2. The facts which lead to the present Appeal are as follows:-
2.1 That on 15.04.1999 at about 7 pm, the Complainant -
Babubhai Shambhubhai could not find his daughter i.e.,
prosecutrix in her bedroom and subsequently, learned that his
daughter was kidnapped by Kantibhai Karshanbhai Harijan
under the pretext of marrying with his daughter. That the
prosecutrix was raped by the accused more than once and
thus, the FIR being CR No. 89/1999 was registered with
Jasdhan Police Station.
2.2 That the aforesaid FIR culminated into Sessions Case no.
143/1999 and vide Exh. 1 charges are framed against the
accused on 13.08.1999 which came to be denied and the
accused prayed for trial.
2.3 In order to bring home the guilt, the prosecution has
examined four witnesses and also produced documentary
evidences. Thereafter, on completion of trial further statement
of accused under the provision of Section 313 of the CRPC
came to be recorded on 31.01.2000 vide judgment dated
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04.02.2000, the accused was given the benefits of doubut for
the offences puonishable under Section 363 and in the
alternative Sections 366 and 376 of the IPC and hence, the
present Appeal.
3. Heard learned APP Ms. Chetna M Shah for the State.
Learned Advocate Ms. Chetna Shah has contended that despite
the deposition of the victim at Exh. 35, wherein, the Victim
has categorically stated that she was raped by the present
Accused namely Kantibhai Karshanbhai Harijan despite her
resistance, the said aspect has not been considered properly by
the learned Sessions Judge while passing the impugned
judgment. That the Accused had administered threat to the
prosecutrix and hence, she did not inform anyone, however,
she had written a letter to her parents which is exhibited at
Exh.11 which is not properly considered by the Trial Court.
That the learned Sessions Judge has committed error in
holding that there are contradictions in the evidence of the
prosecutrix and has further committed error in holding that the
Accused enjoyed sexual intercourse with the consent of the
prosecutrix. It is also argued that the learned Judge has
committed a serious error by only relying on the evidence of
the school register at Exh. 38 and not relying on the
ossification test carried out by Doctor Khimjibhai Dudhabhai
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Makwana for which a certificate was also duly proved at Exh.
32. Thus, it is argued to allow the present Appeal and convict
the accused under the provisions of Sections 363, 366 and 376
of IPC.
4. At this stage, it would be fruitful to refer to the decision
of the Honourable Apex Court in the case of Constable 907
Surendra Singh and another Vs State of Uttarakhand,
reported in (2025) 2 SCR 239 wherein the Honourable Apex
Court in paragraphs 11 and 12 has observed thus :
"11. Recently, in the case of Babu Sahebagouda
Rudragoudar and others V. State of Karnataka, a Bench
of this Court to which one of us was a Member ( B. R.
Gavai, J.) had an occasion to consider the legal position
with regard to the scope of interference in an appeal
against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the
principles laid down by this Court governing the
scope of interference by the High Court in an
appeal filed by the State for challenging acquittal
of the accused recorded by the trial court.
39. This Court in Rajesh Prasad V. State of Bihar
[ Rajesh Prasad V. State of Bihar (2022) 3 SCC 471
: (2022) 2 SCC (Cri) 31] encapsulated the legal
position covering the field after considering various
earlier judgments and held as below : ( SCC pp.
482-83, para 29)
"29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court while
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dealing with an appeal against an order of
acquittal in the following words: [ Chandrappa V.
State of Karnataka, (2007) 4 SCC 415 : (2007) 2
SCC (Cri) 325 ], SCC p. 432, para 42)
'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 appeal 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
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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 conclusion 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 H.D. Sundra V. State of
Karnataka [ H. D. Sundra V. State of Karnataka
(2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748 ] this
Court summarised the principles governing the
exercise of appellate jurisdiction while dealing with
an appeal against acquittal under Section 378
CrPC as follows : ( SCC p. 584, para 8 )
"8. ... 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
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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."
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 form
patent perversity;
41.2. That the same is based on a
misreading/omission to consider material evidence
on record; and
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."
12. It could thus be seen that it is a settled legal
position that the interference with the finding of
acquittal recorded by the learned trial judge would be
warranted by the High Court only if the judgment of
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acquittal suffers from patent perversity; that the same is
based on a misreading/omission to consider material
evidence on record; and 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."
5. Thus, on the aforestated legal prepositions, this Court has to
test on the anvil of the evidence on the record as to whether
the acquittal suffers from any patent perversity or that the
same is based on misreading or on an omission to consider
material evidence on record and that no two reasonable views
are possible and only view consistent with the guilt of the
accused is possible on the evidence on record.
6. In the instant case, the learned trial court on the basis of
the testimony of the prosecutrix which is recorded at an
exhibit- 35 has held that she had moved out of his residence
to watch movie and thus, she was well aware and mature to
understand the consequences and was bold enough to move
alone during the night and that too without informing her
parents. It is also recorded by the learned Judge that the
prosecutrix travelled from her village to Ahmedabad which is
long distance which was travelled by train. She also moved
along with the accused to Gondal on a scooter, however, she
did not raise any alarm or brought it to the notice of the
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public in general that she has been kidnapped and raped. The
trial court has also recorded the fact that if it is taken for
granted that she was under threat, however, she admitted in
her cross-examination that they were at village Babra for 45
days. That they were at Ahmedabad for a pretty long 20 days.
They had also moved in Ahmedabad. They have travelled in a
rickshaw. Not only that the accused used to work during the
day. Thus, there was cohabitation for a pretty long 65 days.
7. It also recorded that she came into contact with the accused
while she was engaged in construction work. Thus, there was
no imminent threat or fear when such a long cohabitation was
voluntarily with the accused. It is pertinent to note that victim
has not raised any alarm nor has she informed anyone during
the long co-habilitation with the accused with regard to she
being kidnapped or raped or even have been threaten and
thus, it creates serious doubt about the veracity of her
deposition and thus, it does not repose confidence and lacks
ring of truth and thus, her deposition cannot be said to be
sterling quality on which conviction against the accused can be
recorded.
8. Considering the aforesaid finding, if it is tested on the anvil
of the evidence of the victim, it lacks truth and does not
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conspire confidence. More particularly, the finding by the trial
court considering the cross-examination of the victim clearly
establishes that she had voluntarily accompanied the Accused
and thus, the question of attraction of Sections 363/366 of IPC
does not arise. More particularly, when the prosecution has
failed to establish that the victim was minor on the date of
offence.
9. Considering the oral evidence at Exh. 36 of Karshanbhai
Amthabhai Parmar, it is clearly established in his cross-
examination that there is overwriting at Entry No. 1585 where
Bhikhabhai Babubhai Kuvariya was written which was scored
out and the name of the victim was then reflecting which is
also not countersigned by the then the principal while making
the relevant entry. It is also evident from the entire deposition
of this witness that on what basis the date of birth of the
victim is recorded in the school register, however, the said
witness was re-examined. He admits that there are different
types of writing in the parent Form filled up for registering the
details of the victim - prosecutrix in the school register. Even
in Form No. 56, there is overwriting in the year of birth.
Thus, the age of the victim is not established by the
prosecution beyond reasonable doubt that on the date of the
alleged offence, she was a minor. At this stage, it is required
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to be noted at the relevant point of time, IPC 375 as is stood
the then provided the age of under 16 years if a man had
committed sexual intercourse with or without consent was
treated as rape. Even if the cross-examination of the
investigation officer at Exh. 44 Jitendrabhai Bahadursinh is
considered, it has come on record that the victim has stated
that she does not want to accompany his father to his
residence. Even if the letter at Exh. 11 purportedly to have
been written by the Victim while she was accompanied by the
accused is not to be treated as proof since, the author of the
said letter i.e., the victim has not been shown to the victim
during his examination in chief, however, the said was
exhibited during the examination in chief of the Complainant -
her father, thus, it cannot be said that it was proved beyond
reasonable doubt, however, for the sake of argument, even if
this letter is taken into consideration, it does not take the case
of the prosecution any further. Since it is neither here nor
there and does not prove that the accused had committed rape
with the prosecutrix.
10. It also transpires from the record that the prosecution has
also examined Doctor Khimjibhai Dudhabhai Makwana vide
Exh. 30 for determining the age of the prosecutrix. From the
entire deposition of the said witnesses, the prosecution is
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unable to prove beyond reasonable doubt that she was minor
when the alleged rape was committed by the present Accused.
Since this Medical Officer himself in examination-in-chief
admits that there can be a variation of three years for either
side while determining the age. On such basis, he has opined
that the age of the victim was 15 years and 10 months. Thus,
the prosecution has failed to prove the age of the victim on
the date of the alleged crime either from the school register or
from the ossification test and the Doctor Khimjibhai Dudhabhai
Makwana himself admitted in his cross examination that fusion
can be observed at any time after 18 years which fusion was
found while the Doctor examined the Victim. Under such
circumstances, there is no reliable evidence on record to prove
the minority of prosecutrix.
11. Considering the deposition and documentary evidence on
record, it cannot said that the trial court has committed any
grievous error or patent perversity in recording the acquittal
nor it could be said that the acquittal is based on misreading
and or omission to consider the documentary evidence on
record and when two views are possible and the guilt of the
accused cannot be proved when there is inconsistency in the
oral as well as documentary evidence available on record, it
cannot be said that the Trial Court has committed an error in
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facts and in law by granting benefit of doubt and recording his
acquittal.
12. In view of the aforesaid facts and circumstances and the
reasons recorded hereinabove, the present appeal stands
rejected. The Judgment and order of acquitting Kantibhai
Harijan for the offence punishable under Section 363, 366 and
376 of IPC vide order and judgment dated 04.02.2000 is
confirmed. Muddamal if any be destructed after the appeal
period is over. The original school register is to be returned to
the school after the appeal period is over, if not handed over.
R and P be sent back forthwith.
(NIRAL R. MEHTA,J)
(P. M. RAVAL, J)
MMP
