Gujarat High Court
State Of Gujarat vs Rajesh Alias Raju Mahendrabhai Shah on 6 May, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1155 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RAJESH ALIAS RAJU MAHENDRABHAI SHAH & ANR.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
MR MANRAJ A BAROT(6224) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 06/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is filed by the State of Gujarat
against judgment and order of acquittal dated 13.05.2013 passed
by the Additional Sessions Judge, City Civil and Sessions Court
No.10, Ahmedabad in Sessions Case No.274 of 2010. By the said
judgment, the Sessions Court acquitted the respondents-accused
for offences under Sections 376, 506(2) and 114 of the Indian Penal
Code.
2. It is a case where the complainant has alleged that 15
days prior to the date of incident, her cousin brother-Mukeshbhai-
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accused No.2 had told the complainant that she is required to do
household work and also cooking at the home of one Raju Jain-
accused No.1 and for that, she would get Rs.2,000/-. However, she
refused for that. Thereafter, the both left the place. After that, at
about 8.00 pm, accused No.1-Raju Jain had come again and asked
the complainant to come to his home, but the complainant told that
she would come in the morning. On the next day morning, the
complainant went to Raju Jain's home and come back. On Monday,
the complainant was having holiday in factory and therefore, she
was sitting at the home of one Madhulal and at about 04;00 pm,
Raju Jain had come there and asked the complainant to come to his
home, but she refused to come. However, he forcibly took the
complainant to his home and kept her there for one week. During
that period, the complainant was sleeping on the terrace and Raju
was sleeping in the home. Thereafter, on 17.06.2009, in the night
hours, when the complainant was sleeping in the home, at about
12;00, Raju had come there and slept with her and asked her to
take divorce from her husband and that he would marry her, but
the complainant refused to do that, upon which Raju forced himself
upon her, but the complainant had refused to that. Still, however,
Raju forcibly had intercourse with her two times in the night and
told her that if she informs about this incident to anybody, she
would be killed and it would be very difficult for her to stay in
Ahmedabad. Due to fear, she stayed at Raju's home and thereafter,
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on 28.06.2009, at 04;00 pm, she left the house of Raju and filed
complaint.
3. Learned APP for the appellant-State submitted that to
prove the case against the respondents-accused, the prosecution
had examined 8 witnesses and produced 14 documentary
evidences. However, the Sessions Court has not properly
appreciated the same in its true perspective.
3.1 It is submitted that in the present case, the victim-
complainant has fully supported the case of prosecution and
narrated how the incident had taken place. However, the Sessions
Court has totally discarded and disbelieved the evidence of the
victim-complainant and come to conclusion that the prosecution
has failed to prove the case beyond reasonable doubt.
3.2 It is submitted that the prosecution has proved
evidences like panchnama of scene of offence, Exh.12, panchnama
of clothes of victim, Exh.14, FSL serological report, Exh.36, etc. to
prove the case against the respondents-accused, which are not
properly appreciated by the Sessions Court.
3.3 It is submitted that the offence was committed against
the consent of the victim-complainant and that there is no reason
for her to falsely implicate the accused. However, the Sessions
Court has disbelieved the case of the prosecution by giving undue
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importance to some infirmities and contradictions.
3.4 It is submitted that the Investigation Officers have fully
supported the case of the prosecution however, the Sessions Court
has discarded the evidence of these witnesses.
3.5. It is submitted that the testimony of the medical
officers support the case of the prosecution and it is coming out
that the rape was committed by accused No.1 and the accused
caused injuries to the victim. However, the Sessions Court has not
considered the said evidences.
4. As against this, learned Advocate for the respondents-
accused supported the impugned judgment and order of acquittal
and submitted that though the incident is alleged to have happened
on 17.06.2009, the complaint was filed on 28.06.2009. It is
submitted that it is the say of complainant herself that after the
alleged incident also, she stayed at the home of accused No.1-Raju
Jain for a week. This itself speaks about the unnatural conduct of
the victim-complainant.
4.1 It is submitted that moreover, though time and again
summons were issued to the complainant and served upon her, she
has not turned up to depose before the Sessions Court and
therefore ultimately, she was not examined and therefore, APP
gave pursis Exh.14, declaring closing of his evidence.
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4.2 It is submitted that in the medical evidence also, it is
clearly coming out that no rape was committed on the complainant
as there are no stains or injury marks found on the vaginal.
Therefore, it casts doubt on the complaint itself.
5. Having heard learned Advocates for the parties and
having perused documents on record, it appears that it is a case
where the alleged incident, though had taken place on 17.06.2009,
the complaint was filed on 28.06.2009. It also appears that though
time and again summons were issued to the complainant, she did
not turn up to give her version and therefore, she was not
examined at all. Moreover, in the cross-examination of the officer
who recorded the complaint, Rameshbhai Ramabhai Rathva, PW
No. 8, Exh. 37, he has stated that no reason was given by the
victim-complainant for the delay in filing the complaint.
6. During trial, the prosecution examined following
witnesses:-
Sr. Name of the witness PW Exh.
No. No. No.
1 Mangilala Jogaji Desai 1 11
2 Rampal Bhikhubhai Yadav 2 13
3 Dinesh Ratansinh Thakor 3 19
4 Dr. Kinjal Hasmukhrai Doshi 4 25
5 Dr. Jayant N. Solanki 5 27
6 Jashvantsing Babaji Rana 6 30
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7 Merubha Sursing Singha 7 31
8 Rameshbhai Ramabhai Rathva 8 37
6.1 Through the aforesaid witnesses, the prosecution
brought on record the following documentary evidence:-
Sr. Particulars Exh.
No. No.
7. Dr.Jayant N.Solanki, PW No.5, Exh.27 was the Medical
Officer, who examined the victim-complainant on 01.07.2009. He
has deposed that there were no injury marks, stains or sperm on
the internal part of body of the victim or on her clothes. Therefore,
at the first instance, it appears to the Court that any rape was
committed on the complainant.
8. Dr.Kinjal Hasmukhrai Doshi, PW No.4, Exh.25 was the
Medical Officer, who examined accused No.1. She has also
deposed that there were no injury marks, stains or sperm on the
body or clothes of the accused.
9. Mangilala Jogaji Desai, PW No.1, Exh.11 is the panch
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witness of the panchnama of place of incident. However, he has
not supported the case of prosecution. In the cross-examination
also, he has not supported the case of prosecution.
10. Rampal Bhikhubhai Yadav, PW No.2, Exh.13 is the
panch witness of the panchmana of clothes of the victim and
Dinesh Ratansinh Thakor, PW No. 3, Exh. 19 is the panch witness
of the panchnama of clothes of the accused. Both these witnesses
have not supported the case of the prosecution. In the cross-
examination also, both these witnesses have not supported the case
of the prosecution.
11. Though the argument on behalf of the State would be to
base conviction on certain scientific evidences which are available
like serological report from the FSL, etc., it is trite that the
conviction cannot be based on the evidence which is meant for
corroboration in absence of substantive piece of evidence.
12. In case of Bhaskarrao & Ors. Vs. State of
Maharashtra, reported in 2018 (6) SCC 591, the Apex Court
In case of Bhaskar Rao and Another (supra), in para-23, the
Apex Court has observed as under:-
"23. Before we proceed to analysis of the case, we
must first focus on the aspect concerning the standard
the High Court has to apply, while hearing a case
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against an acquittal order of the trial court. In the case
on hand, the trial court, followed by a full-edged trial,
comes to the conclusion and by cogent reasoning
acquits the accused. In such a case the appellate Court
is further burdened with the task of rearming the
innocence of the accused. In such cases, the appellate
Court is expected to be very cautious and its
interference with the order of acquittal is called for
only when there are compelling reasons and substantial
grounds. In other words, the High Court has full power
to review the evidence upon which an order of acquittal
is founded, yet the presumption of innocence of the
accused being further reinforced by his acquittal by the
trial Court, the findings of that Court which had the
advantage of seeing the witnesses and hearing their
evidence can be reversed only for very substantial and
compelling reasons [refer Surajpal Singh & Ors. v. The
State, 1952 CriLJ 331]."
13. In view of the aforesaid discussion, the Court is not
inclined to interfere with the impugned judgment and order. The
appeal therefore deserves to be and is hereby dismissed.
14. Bail bonds stand cancelled. R & P to be sent back to
the concerned trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SHITOLE
