Gujarat High Court

State Of Gujarat vs Jitendrabhai @ Jitu Goklabhai ... on 7 May, 2025

Author: A.Y. Kogje

Bench: A.Y. Kogje, Samir J. Dave

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                            R/CR.A/298/2025                             JUDGMENT DATED: 07/05/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                              R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 298 of 2025

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE A.Y. KOGJE
                       and
                       HONOURABLE MR. JUSTICE SAMIR J. DAVE
                        ================================================================

                                    Approved for Reporting             Yes           No

                       ================================================================
                                                   STATE OF GUJARAT
                                                          Versus
                                        JITENDRABHAI @ JITU GOKLABHAI CHAUDHARI
                       ================================================================
                       Appearance:
                       MR.L.B.DABHI, APP, for the Appellant(s) No. 1
                       BHISHMA A. RAWAL(12270) for the Opponent(s)/Respondent(s) No. 1
                       ================================================================
                          CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                                and
                                HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                               Date : 07/05/2025
                                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. The State has preferred the present appeal under Section 419(1)

of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the judgment

and order dated 25.07.2024 passed by the Special Judge (POCSO

Case) and 2nd Additional Sessions Judge, Surat in Special (POCSO)

Case No. 79 of 2022. By the impugned judgment and order, the

accused person was acquitted from the offense under Sections 344,

354(d), 363, 366, 376, 376(2)(j)(n) and 506(2) of the Indian Penal Code

and under Sections 3(a)(c), 4, 5(l), 6, 7, 8, 11(4) and 12 of the POCSO

Act.






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2. The case of the prosecution is that despite the accused having

knowledge that the victim's daughter, aged 17 years and 3 months at

the time of the incident, was a minor and legally incapable of giving

valid consent, he intentionally seduced her, lured her into a purported

marriage, and engaged in conversations with her. It is further alleged

that the accused expressed his intent to marry the victim and

threatened her stating that he would kill himself if she refused to marry

him and thereby, the accused compelled the victim to run away with

him. It is alleged that between 00:15 hrs and 02:00 hrs on 22.02.2022,

the accused deceitfully induced the victim under the pretext of marriage

and against the legal guardianship of the complainant, with the intention

of committing rape. The accused is stated to have forcibly raped the

victim on three occasions and thereby repeatedly subjected the victim to

rape. Furthermore, the accused is alleged to have wrongfully confined

the victim for a period of ten days and during such period, committed

aggravated penetrative sexual assault, penetrative sexual assault,

sexual assault, and sexual harassment upon the victim. In light of the

foregoing, the accused has thereby committed offences punishable

under Sections 344, 354(d), 363, 366, 376, 376(2)(j)(n), and 506(2) of

the Indian Penal Code, as well as Sections 3(a), 3(c), 4, 5(1), 6, 7, 8,

11(iv), and 12 of the Protection of Children from Sexual Offences

(POCSO) Act, 2012. The case has been registered at Chowkbazar

Police Station under i-C.R.No.11210012220227/2022.

3. Upon due investigation, the respondent accused person was

arrested and chargesheeted and upon completion of necessary

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procedure of providing with the documents of charge sheet under

Section 207 of the Code of Criminal Procedure, the case came to be

tried by Principal District and Sessions Judge, Surat.

4. Learned Additional Public Prosecutor submitted that the

prosecution has submitted oral evidence of 14 witnesses who have

been examined by the prosecution and has produced 42 documentary

evidences. However, the trial Court has not appreciated these oral as

well as documentary evidences which were supporting the case of

prosecution.

4.1 It is submitted that the father of the victim PW-3, who is examined at

Exh.29 has fully supported the case of the prosecution and has clearly

narrated how the incident took place. Moreover, his evidence is also

fully supported by the evidence of other prosecution witnesses.

However, the trial Court has disbelieved and discarded this evidence.

4.2 Learned APP has submitted that the offense was committed

against the consent of the victim by the accused person and that there

is no reason for her to falsely implicate the accused person however,

the trial Court has disbelieved the same by giving undue importance to

some infirmities and contradictions.

4.3 Learned APP submitted that the school leaving certificate of the

victim has been produced at Exh.35 which states the birth date of the

victim as 25.11.2004 and the present incident occurred on 22.02.2022.

Therefore, it transpires that on the date of incident, the age of the victim

was about 17 years 2 months and 28 days which shows that the victim

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was a minor at the time of incident. However, the trial Court has

disbelieved and discarded this evidence.

4.4 Learned APP submitted that the testimony of the victim PW-6

examined at Exh.54 wherein she has fully supported the case of the

prosecution and has clearly narrated how the incident took place.

Moreover, her evidence is also fully supported by the evidence of other

prosecution witness. However, the trial Court has disbelieved and

discarded this evidence.

5. As against this, learned advocate for the respondent-accused

submitted that as per the evidence adduced by the prosecution, a total

of 14 witnesses have been examined by the prosecution. Out of these,

2 are panch witnesses, one of whom has been declared hostile by the

prosecution, and the other is an acquaintance of the complainant. There

are 5 police officials, 3 doctors, and one birth and death registrar. Three

witnesses are the complainant, his wife, and the victim. Out of these,

the mother of the victim has been declared hostile by the prosecution.

Thus, the three main witnesses examined by the prosecution may be

termed as interested witnesses. Despite the availability of independent

witnesses in the matter, the prosecution has not examined any

independent witnesses. Hence, in the present case, the prosecution has

not led the evidence of any independent witnesses. The prosecution

has relied solely on the testimony of relatives and acquaintances of the

complainant, whose depositions also reflect multiple inconsistencies,

rendering their testimony unworthy of credence and unreliable.








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5.1. It is submitted that the prosecution has not been able to prove

beyond reasonable doubt that the accused had threatened the victim or

that the victim had accompanied the accused due to fear. Furthermore,

upon perusal of the entire evidence, the prosecution has also failed to

prove beyond reasonable doubt that the victim was found at Indore

Palda village. Additionally, the police witnesses and the investigating

officer have not submitted any documentary evidence such as

panchnama, entry in the local police station, or transit remand, etc.,

showing that the accused was apprehended from Indore Palda village.

The defence, while cross-examining the police witnesses on this aspect,

appears to have elicited satisfactory explanations. It is, therefore,

evident that the victim did not accompany the accused against her will.

5.2 Learned advocate submitted that the prosecution has not been

able to prove beyond reasonable doubt that the accused had sexual

intercourse with the victim against her will. The medical evidence and

documentary evidence from the FSL clearly established that no forcible

physical relations were made with the victim against her will. Upon

examining the evidence in the present case, it can be inferred that, if the

victim accompanied the accused, it might have been of her own volition.

The victim made no attempts to resist accompanying the accused.

Moreover, the defence has established that there existed a love

relationship between the accused and the victim. Further, in her cross-

examination, the victim has admitted to having sent a letter written by

her to the accused, which has been proved as per the provisions of the

Indian Evidence Act. Upon reading the said letter into evidence, it

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becomes clear that the victim's mother had become aware of the love

relationship between the accused and the victim and that the victim had

pressurised the accused to take her away with him, which is clearly

proved. In this regard, the Biology Report submitted by the FSL

Department from page 76 has also not supported the case of the

prosecution.

5.3 Learned advocate lastly submitted that no semen of the accused

was found on the clothes of the victim or in the samples collected from

her. The prosecution has failed to demonstrate before the court, through

cogent and convincing evidence, that the present accused has

committed the alleged offence. The accused has no prior criminal

history and has not been involved in any previous crime. The accused is

currently of young age. The conduct of the accused during trial must

also be taken into account. Considering the above submissions and the

evidence on record, the prosecution has entirely failed to prove its case

beyond reasonable doubt. According to the principles of law, however

strong a suspicion may be, it cannot take the place of proof, and even

the slightest doubt in the prosecution's case entitles the accused to an

acquittal. Therefore, taking into consideration the above arguments and

the evidence on record, in the alleged offence, the accused is not

proved beyond reasonable doubt.

6. During the course of trial, the prosecution has examined the

following witnesses:-

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Sr Name of Witness PW Exh.

No No. No.

7. During the course of trial, the prosecution brought on record the

following documentary evidences :-

                        Sr.No Particulars                                                      Exh.
                        .                                                                      No.
                        1.    Panchnama of seizure of clothes of the victim                    17
                        2.    Inquest panchnama and panchnama of clothes of the                18
                              accused

8. The Court has heard learned advocates for the parties and

perused the impugned judgment and order so also the documents on

record. It appears, upon instructions obtained as on date by the learned

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advocate for the respondent, that the respondent is unmarried. This

specific observation is made in view of the version given by the

presecutrix in her history given before the Medical Officer that after the

respondent went back to his native and returned, at that time had had

given an indication that he has now got engaged.

9. The Court has perused the evidence of the prosecutrix as PW-6

vide Exh.54, which is indicative of factum of affair which had taken

place because of they were living in the neighbhourhood and such

relationship being found out by the parents of the prosecutrix, was

objected upon. Particular attention be paid to cross-examination of the

prosecutrix, wherein relevant questions were put with regard to her

version given in the examination in chief, which is an improvement of

her version which otherwise came on record during the investigation in

the form of her statement given to the Investigating Officer and

statement recorded under Section 164 of the Code of Criminal

Procedure. The relevant extracts of the cross-examination of the

prosecutrix are as under:-

12. It is true that I have not stated in my police statement recorded in person that: "Jitu used to say, 'Come with me, or else I will circulate all your private photos among your friends and show them to your parents.'"

The witness voluntarily states that the police did not ask anything to that effect, hence it was not stated.

13. It is true that I have not stated in my police statement recorded in person that: "Jitu had not stopped the vehicle anywhere; I kept telling him that I needed to go home, to which Jitu responded that 'your mother will beat you and get angry.'"

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The witness voluntarily states that no such question was asked, hence it was not conveyed to the police.

14. It is true that I have not stated in my police statement recorded in person that: "I kept telling Jitu that I needed to go home, but he would not allow me to leave. There was no phone or anything of the sort, hence I could not make any call." The witness voluntarily states that she had answered only to the extent asked.

15. It is true that I have not stated in my police statement recorded in person that: "Jitu used to make me do household work. There was no money or anything of the sort.

The witness voluntarily states that the police had not asked anything to that effect, and therefore it was not stated.

10. This improvement is proved by the relevant questions put to the

Investigating Officer PW-11-Mayurkumar Karnidan Gadhvi, where such

improvements have been proved and therefore, the version of the

prosecutrix was not a wholly reliable version. Therefore, the Court will

necessarily have to look into the corroboration and therefore, the report

of the FSL appears to be a proper evidence which can act as a

corroboration in the facts of the present case. The Court has therefore,

perused the FSL report at Exh.76, final conclusion given by the FSL

with regard to the analysis report on the clothes of the victim, where no

presence of semen or blood stain has been found. Therefore, there

does not appear to be any scientific evidence available to corroborate

the version given by the prosecutrix.

11. The factum of love affair is undeniable as even from the evidence

of the prosecutrix herself, where she was questioned with regard to the

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notings made on the Aadhar Card, which she has deposed in her cross-

examination to have given to the accused person before eloping which

contained noting in her own handwriting indicating that her parents were

not agreeable to their relationship and therefore, she was hiding such

relationship from her parents. She has also indicated that in such noting

she has called upon the accused person to help her to elope and if the

relationship is known to the parents, she will have no way, but to kill

her.

12. The victim in her deposition has given an exaggerated version and

the statements before the police were contradicted. The said

exagerrated statements were proved in the evidence of the

Investigating Officer at Exhibit - 84.

13. In view of such finding, the trial Court was justified in considering

the victim as not a witness, who can be wholly reliable and therefore,

further corroborations were essential to bring home the charge.

14. The Court has perused the evidence of the medical officer PW -

7, Dr. Shrushti Mayur Parmar, wherein also in the history given by the

victim herself, which is recorded as under:-

"The victim stated the history in Gujarati and the witness also recorded the history in Gujarati. It was stated therein that the victim was acquainted with accused Jitendra since last six months. The accused and victim were residing in the same building on upper and lower floor. They were in love with each other. On 22/02/2022 at half past one o'clock at night, both of them willingly went to Paldha village of Madyapradesh on motorbike and stayed over there by renting a room with the support of a friend of the accused. Both of them willingly got married in a temple on 24/02/2022. Thereafter, the accused and the victim, with consent of each other, had frequent sexual intercourse using condom. They had last sexual

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intercourse using condom on 07/03/2022. The accused and the victim stayed at Paldha for fifteen days. As the parents of the victim registered a complaint in the Police Station, the Police detained them from Paldha at 8.00 pm on 09/03/2022 and produced them in Chowkbajar Police Station at 08.00 am on 10/03/2022. The following marks were found during physical examination of the victim. Her vital parameters were normal. No injury marks of any kind were found on her body. She was in fully conscious state and she was aware about the time and place. Her secondary sexual characteristics were developed. No injury marks were found during examination of genital organs of the victim and her hymen was ruptured. Urine pregnancy test of the victim was negative. The following samples were collected from the body of the victim for analysis. Vaginal swab and urethral swab were collected. These samples were seal packed and handed over to WLR Anitaben for analysis. As per her opinion, on the basis of the history as well as the medical examination, no evidence was found of recent forceful vaginal penetration committed on the victim, but it cannot be denied that sexual intercourse was indulged into."

15. The Court may also draw strength from the decision of the Apex

Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in

(2022) 3 SCC 471, wherein the Apex Court has examined the case law

with regard to the power of the High Court to overturned the decision of

the Sessions Court where an another view is possible. Examining the

case including that of Chandrappa & Ors. vs. State of Karnataka

reported in (2007) 4 SCC 415, the Apex Court has culled out the

general principles regarding the powers of the Appellate Court while

dealing with the appeal against the order of acquittal. The Apex Court

has held that the appellate court has full power to review, re-appreciate

and reconsider the evidence upon which the order of acquittal is

founded. However, the appellate court has to keep in mind that in case