Gujarat High Court
State Of Gujarat vs Rakesh @ Manoj Harishchandra Mishra on 8 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 NO. 26 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
RAKESH @ MANOJ HARISHCHANDRA MISHRA
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Appearance:
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
MR. VD MEWADA(2151) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 08/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the State under Section 378 of
the Code of Criminal Procedure, 1973 against the judgment and
order of acquittal dated 13.10.2012 passed by Additional Sessions
Judge, Ahmedabad in Sessions Case No.47 of 2010. By the
impugned judgment and order, the Sessions Court acquitted the
respondent-accused for offense under Sections 363, 366, 376, 323
and 342 of Indian Penal Code.
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2. It is the case of the complainant that his victim-daughter is sixteen
years of age and was studying in standard 10 th at K.C. Desai High
School. The brother in law of the complainant resides at the house
of the complainant and used to drop and pick the victim from the
school. On 17.01.2009, as the examinations of the victim were
going on and as the exam timings were from 11:30 AM to 2:30 PM,
the brother in law of the complainant had gone to drop the victim at
11:15 AM and returned back. Thereafter, when he went to pick her
up at 2:30 PM, the victim was not found and therefore, an inquiry
was made about the whereabouts of the victim, but she could not
be found. At the time of incident, the victim was wearing a gold
chain of 3 Tolas and gold earrings. Further, as per the allegation of
the complainant, a person named Rakesh who was working as a
security guard in the Tata Telecom Office situated below their
apartment was also found to be missing and upon inquiring with
another security guard named Pappu, he informed that Rakesh had
not reported on duty and that he had seen the photo of the victim in
the purse of Rakesh. Upon trying to trace the victim, her mobile
phone was found to be switched off. Therefore, it is the case of the
complainant that the said Rakesh Mishra enticed and lured the
victim to commit illicit intercourse and hence, a complaint was filed.
3. Learned advocate Mr. V.D.Mewada for the respondent-accused
was absent when the matter was called out. Hence, the matter has
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been taken up with the assistance of the learned APP considering
the fact that the matter is of the year 2013.
4. Learned APP has submitted that the order of acquittal passed by
the Additional Sessions Judge, Ahmedabad in Sessions Case
No.47 of 2010 is contrary to law and evidence on record of the
case.
4.1 Learned APP has submitted that the complainant Subhashbhai
Dashrathbhai Yadav as PW-5 vide Exh.39 has fully supported the
complaint at Exh. 40, however, the Sessions Judge has disbelieved
this witness.
4.2 Learned APP has submitted that victim as PW-4 vide Exh.37 has
stated that on the date of the incident she was aged 15 years and
that the respondent-accused had given intoxicant drug and took
her to Nasik with clear intention to have sexual intercourse. This
prosecution witness has been declared hostile and not supporting
the case of prosecution. Inspite of that, she has stated in her cross-
examination that accused person had taken her at Nasik and
committed rape against her will. However, the Sessions Judge has
disbelieved this witness.
4.3 Learned APP submitted that the evidence of PW-6 Dr. Bhairvi
Balvant Pandey vide Exh.42 has stated that there were no external
injury found on the body of the victim and that sexual character
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were found in developed condition. It is further stated that the
pregnancy test of the victim was found positive and therefore, she
was referred to Dr. Digish Vaghela for sonography and radiology
test. However, the Sessions Judge has failed to appreciate the
evidence of this witness.
4.4 Learned APP submitted that the evidence of PW-8 Dr. Alpesh
Zaverchand Shah vide Exh.49 has stated that the secondary
sexual character was well developed and that the respondent was
able to commit sexual intercourse. However, the Sessions Judge
has failed to appreciate the evidence of this witness.
4.5 Learned APP submitted that the evidence of PW-10 Nagesh
Vaikunthlal Sheth vide Ex.53 has stated that the date of birth of
victim is 05.04.1994 and has produced copy of an extract at Exh.54
and as such she was aged about 14 years and 7 months on the
date of incident. Therefore, according to evidence of this witness,
prosecution has proved the date of birth of victim beyond
reasonable doubt. However, the Sessions Judge has failed to
appreciate the evidence of this witness.
5. Having heard the submissions of learned APP and having perused
documents in record, it appears that to prove the case against the
respondent-accused, the prosecution has examined the following
witnesses:-
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Sr.No. Name of Witness PW. Exh.
No. No.
1. Naresh Mulshankar Pandya 01 25
2. Suresh Dahyabhai Patel 02 27
3. Ganeshbhai Karamsinh Rajput 03 33
4. Victim 04 37
5. Subhashbhai Dashrathbhai Yadav 05 39
6. Dr. Bhairvi Balvant Pandey 06 42
7. Jitendra Amtuji Thakor 07 44
8. Dr. Alpesh Zaverchand Shah 08 49
9. Dr. Yasmin Mohammed Hussaini 09 51
10. Nagesh Vaikunthlal Sheth 10 53
11. Kanaiyalal Chadubhai Rathwa 11 57
12. Nitin Laxman Kakde 12 59
13. Kishorbhai Prakashbhai Devde 13 61
14. Dineshbhai Damor 14 63
5.1 The prosecution has brought on record the following documentary
evidence:-
Sr.No. Name of Witness Exh. No.
1. Panchnama of samples of accused taken by 26
Medical Officer
3. Panchnama of samples of victim taken by 34
Medical Officer
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6. It is the main case of the prosecution that the victim was under 16
years of age at the time of the incident and that on 17.01.2009, the
respondent-accused enticed, lured and took the victim away
without the consent of the guardian between 11:00 am and 3:30
pm from K.C. Desai High School. The accused was kept at hotel,
guest house and other places at Nashik for the purpose of
committing illicit intercourse or marriage. Further, the accused used
to lock the victim inside the room when he used to go for work and
when the victim attempted to contact the complainant, the
respondent-accused used to assault her and committed sexual
intercourse against her will.
7. The burden of proving that the victim was of less than 16 years i.e.,
14 years and 7 months at the time of incident lies upon the
prosecution. The prosecution has relied upon school certificate
regarding birth of victim vide Exh.41, the evidence of PW No.10
Nagesh Vaikunthlal Sheth who is the school superintendent vide
Exh.53 and has produced an entry in the general register vide
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Exh.54. Upon perusing the said documents, it becomes clear that
the document at Exh.41 is not a school leaving certificate but a
certificate issued by the school regarding the date of birth of the
victim and as per the deposition of PW No.10 Nagesh, the
document produced at Exh.41 was issued based on the entry in the
general register i.e., Exh.54. Upon perusing the said entry in the
general register (Exh.54), it becomes clear that it is not regarding
the victim's original admission to school but regarding her
admission in Standard 10 on 09.06.2008 having been transferred
from another school and it mentions the date of birth of the victim
as 05.06.1994. Also, there is no affidavit or any evidence showing
the basis on which the date of birth was recorded. Further, upon
looking at the cross examination of PW-14 Investigation Officer
Dineshbhai Damor vide Exh.63 it becomes clear that no
ossification test of the victim was carried out. Hence, in the
absence of documents or medical evidence, the prosecution has
not sufficiently discharged the burden of proof to prove that the
victim was a minor at the time of the incident.
8. PW No.5-Subhashbhai Dashrathbhai Yadav, Exh. 39 is the
complainant. In his deposition, he has stated that the victim is the
daughter of the complainant and she was studying in class 10 at
K.C. Desai High School. The date of birth of the victim is
05.06.1994 and that the brother in law of the complainant used to
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go to drop and pick up the victim from the school. However, on
17.01.2009 the victim was found missing and upon searching for
her, she could not be found. While searching for her, he was
informed by the security guard named Pappu that when the victim
had left for school, a person named Rakesh (accused), who works
at Tata Telecom, also went to the school and that he saw a photo
of the victim in the purse of Rakesh. He further stated that he filed
a complaint (Exh. 40) on 22.01.2009 and that he submitted the
school leaving certificate (Exh. 41) along with it. During the cross
examination of this witness, it is coming out that he has not
mentioned about the submission of the said certificate in the
complaint and the fact that the security guard Pappu had told that
after the victim left for school, the accused had also went there.
9. PW No.4, Exh. 39 is the victim. The victim initially did not support
the case of the prosecution and was therefore declared as a hostile
witness. However, after being declared a hostile witness, the victim
has stated some facts that support the case of the prosecution that
can be taken into consideration provided the testimony is reliable.
However, it appears that the testimony of the victim is inconsistent.
For instance, she admits that she went to school for her
examinations but states that she does not remember that she went
to the S.T.D. booth to make a phone call and that the accused was
present there and he asked her to run away with him and that he
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will make her happy in life and if she does not come with him, he
will hurt her. She denies that she got scared upon hearing this.
Further, she also denies the fact that the accused forcibly made her
sit in a rickshaw and that the accused made her smell something
against her will. Then, she admits the fact that when she regained
consciousness she was at Sai Baba Temple at Shirdi. Further, she
states that they stayed at Holiday Hotel in Shirdi and the accused
did inappropriate acts with her. However, she denies the fact that
she was taken to a hotel in Nasik and Satvik Guest House. She
admits that the accused did inappropriate acts with her but denies
the fact that the accused took her to the hospital when she fell ill.
Further, she admits that the accused took her and sold the gold
chain and earrings but states that she does not know for what
amount it was sold. Upon looking at the entire deposition of this
witness it appears that the victim admits the facts that are in her
favour and states that she does not know or does not remember
the facts that appear to not be in her favour.
10. The conduct of the victim after the accused took her away such as,
not trying to escape, not shouting for help and not informing
anyone about the incident seems suspicious. In light of such
circumstances, this victim cannot be considered to be a reliable
witness and corroboration with other accused are required to
establish the guilt of the accused.
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11. The prosecution has examined two witnesses Nitin Laxman Kakde
(Exh.59) and Kishorbhai Prakashbhai Devde (Exh.61) who are
panchas of the panchnama of the place where the accused and
victim resided (Exh.60). However, both these witnesses are not
supporting the case of the prosecution and no other independent
witnesses have been examined.
12. Further, no intoxicating substance was found at the time of arrest in
the blood of the victim or the accused as the alleged incident had
took place on 17.01.2009 and the arrest took place on 22.03.2009
i.e., the medical examination took place 2 months and 12 days
after the date of incident.
13. P.W. No.6-Dr. Bhairvi Balvant Pandey, Exh.42 is the medical
officer who examined the victim. She has stated in her deposition
that there were no external injuries or stains of blood or semen on
the clothes of the victim. Further, her urine pregnancy test was
positive and her sonography was conducted by Dr. Digish Vaghela
which showed a 8 week viable gestation. However, she has stated
that the victim was not referred for a DNA test though the
pregnancy test was positive. Hence, the omission to conduct such
a DNA test significantly weakens the case of the prosecution.
14. Further, P.W. No.3-Ganeshbhai Karamsinh Rajput, Exh. 33 is the
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pancha of the panchnama of samples of victim taken by the
medical officer. However, this witness has not supported the case
of the prosecution.
15. P.W. No.8-Dr. Alpesh Zaverchand Shah, Exh.49 is the medical
officer who examined the accused. He has stated in his deposition
that the accused had well developed secondary characteristics and
that the accused was capable of performing sexual intercourse.
However, there were no external injuries or stains of blood or
semen on the body, clothes or genitals of the victim.
16. In light of the said circumstances, i.e., the victim being declared
hostile and not being a reliable witness, the prosecution not
sufficiently proving the age of the victim, absence of other
corroborating oral or documentary evidence, it appears that the
prosecution has not proved the guilt of the victim beyond
reasonable doubt.
17. The Court may also draw strength from the decision of the Apex
Court in the 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 overturn 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
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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,
teh appellate court has to keep in mind that in case of an acquittal,
there is a double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence, and thereafter,
upon securing of acquittal, the presumption is further reinforced,
reaffirmed and strengthened, and therefore, whenever there are
two reasonable possible on the basis of evidence on record,
ordinarily, the Apex Court would not disturb the findings of acquittal
recorded by the Trial Court.
18. The Court has also perused the judgment and order of the
Sessions Court and finds that just and cogent reasonings are
assigned by the Sessions Court while acquitting the respondent-
accused.
19. In view of the aforesaid discussion, the Court finds no reason to
interfere with the impugned judgment and order of acquittal dated
13.10.2012 passed by Additional Sessions Judge, Ahmedabad in
Sessions Case No.47 of 2010. The appeal is therefore dismissed.
Bail and bonds of the accused, if any, stand discharged. R & P be
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sent back to the concerned trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SIDDHARTH
