Gujarat High Court
State Of Gujarat vs Prajapati Dashrathbhai Shivabhai on 9 May, 2025
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 117 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT
Versus
PRAJAPATI DASHRATHBHAI SHIVABHAI
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Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
RULE SERVED 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 : 09/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
1. This Appeal is filed under Section 378(1)(3) of the Code of
Criminal Procedure against the judgment and order dated
28.08.2012 passed by the learned Additional Sessions Judge,
Patan in Sessions Case No.23 of 2011. By the impugned
judgment and order, the respondent-original accused No.2 was
acquitted of the offence punishable under Sections 376,
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506(2) of the Indian Penal Code
2. The facts of the prosecution case in brief are as under:
2.1 That, one year prior to 21.05.2010, the present
respondent-original accused no.2 got the prosecutrix
frightened administering her threat to be killed and thereafter,
at his Ashram, police committed rape on her without her
consent. Thereafter, with the help of present respondent-
original accused no.2, the original accused No.1 abducted
prosecutrix on 21.05.2011 under the pretext of marriage and
took her to Rajasthan where original accused no.1 also
committed rape on her frequently and pursuant thereto, the
First Information Report came to be registered with Harij Police
Station on 26.05.2010 by complainant of this case Shivabhai
Amrabhai Prajapati for the offence under sections 363, 366,
376, 506(1) read with Section 114 of the Indian Penal Code.
2.2 After registration of the complaint, investigation was
conducted, Panchnama was drawn, statements of the witnesses
were recorded and upon completion of the investigation as
sufficient evidences to link the accused persons with crime
were revealed, the accused persons were charged-sheeted for
the aforesaid offence.
2.3 Thereafter, as the case was exclusively triable by the
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Sessions Court the same was committed to the learned Sessions
Court at Patan under Section 209 of Cr.P.C. The case was
numbered as Sessions Case No.23 of 2011. The trial was
initiated against the accused persons.
2.4 To prove the guilt against the accused persons the
prosecution has examined the witnesses mentioned in the
impugned order. Similarly, in order to support the case the
prosecution, the prosecution has produced the documents
mentioned in the aforesaid judgment.
2.5 At the end of trial, after recording the statement of the
accused persons under Section 313 of Cr.P.C and hearing
arguments on behalf of prosecution and the defence, by
judgment and order dated 28th August 2012, the learned
Additional Sessions Judge, Patan convicted the original accused
no.1 directing him to undergo 5 years rigorous imprisonment
and pay fine of Rs. 500/-, in default of payment of fine,
undergo 1 year simple imprisonment for the offence
punishable under Section 363 of the Indian Penal Code; to
undergo 5 years rigorous imprisonment and pay fine of Rs.
500/-, in default of payment of fine, undergo 1 year simple
imprisonment for the offence punishable under Section 366 of
the Indian Penal Code; and to undergo 5 years rigorous
imprisonment and pay fine of Rs. 500/-, in default of payment
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of fine, undergo 1 year simple imprisonment for the offence
punishable under Section 376 of the Indian Penal Code as well
as learned Sessions Judge acquitted the respondent herein-
original accused no.2 of the offence under Section 376,
506(2).
2.6 Being aggrieved and dissatisfied with the aforesaid
judgment and order of acquittal of original accused no.2
passed by the Sessions Court, the appellant- State has preferred
present appeal.
3. Learned APP for the appellant-State has submitted that
the learned Sessions Judge committed serious error by
acquitting the respondent herein-original accused no.2 on the
basis of minor contradictions. The evidence of the witness,
which was being believed while convicting the accused No. 1
could not have been disbelieved by the learned judge while
acquitting the respondent herein-original accused no.2 .That,
the Judgment and order passed by the learned Sessions Judge
reflects clear error of law and judgment to the extent it acquits
the respondent herein-original accused no.2 and learned
Sessions Judge does not reflect any just, proper and cogent
reasons which may call for acquittal and it was a clear case,
wherein, active role was played by the respondent herein-
original accused no.2 in commission of the offence. That,
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while considering the criminal offence where more than one
accused is involved, the role of the accused persons could be
differentiated, however, the entire offence is to be seen and the
manner and method in which, the offence is committed is
required to be seen. The learned Sessions Judge while
convicting the original accused no.1 for the offence punishable
under Sections 363, 366 and 376 of the Indian Penal Code
since the charges against him are proved, on the same set of
evidence, ought to have convicted the respondent herein-
original accused no.2 since he was equally liable for such
offence as was involved in connivance with original accused
no.1.
4. Learned APP for the appellant-State has further
submitted that the learned Sessions judge has erred in
observing that evidence of the witnesses is not at all reliable
even if they are residing in the same village but they are lot of
discrepancies in their evidence. That, the learned Judge has
not taken into consideration the history given by victim at the
time of examination by the doctor. The victim has specifically
stated during her history before medical officer that she was
subjected to rape. In the history, the victim also named the
accused.
5. It is further submitted by learned APP for the appellant
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State that during the course of cross examination of the
medical officer, nothing adverse could be elicited to the
prosecution and as such the medical officer has supported the
case of the prosecution. That, the learned Sessions Judge ought
to have taken into consideration the evidence of the
Investigating Officer who has no reason to falsely implicate the
accused in the offence. The Investigating Officer after
following all procedures of recording statements of relevant
witnesses and drawing necessary panchnama and also after
obtaining caste certificate related to the complainant and as
found that there are ample evidence and sufficient materials
against the accused, prepared charge sheet and submitted the
same before the competent court of law and this witness has
given his version supporting the case of the prosecution. There
is no reason not to believe the evidence of the witness. There is
no contradiction and/or omission appearing in the evidence of
this witness and as such this witness has fully supported the
case of the prosecution. During the course of cross
examination also, this witness has fully supported the case of
the prosecution. Ultimately, it was requested by learned APP
for the appellant-State to allow this appeal.
6. At the outset it is required to be noted that the
principles which would govern and regulate the hearing of
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appeal by this Court against an order of acquittal passed by the
trial Court have been very succinctly explained by the Apex
Court in a catena of decisions. In the case of M.S. Narayana
Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6
SCC, 39, the Apex Court has narrated about the powers of the
High Court in appeal against the order of acquittal. In para 54
of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an
appeal treating to be an appeal against acquittal, it
was in fact exercising the revisional jurisdiction.
Even while exercising an appellate power against a
judgement of acquittal, the High Court should have
borne in mind the well-settled principles of law that
where two view are possible, the appellate court
should not interfere with the finding of acquittal
recorded by the court below."
6.1 Further, in the case of Chandrappa Vs. State of
Karnataka, reported in (2007) 4 SCC 415 the Apex Court laid
down the following principles:
"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 appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
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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 curtain
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of flourishes of language to emphasis 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 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 conclusions 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."
6.2 Thus, it is a settled principle that while exercising
appellate power, even if two reasonable conclusions 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.
6.3 Even in a recent decision of the Apex Court in the case
of State of Goa V. Sanjay Thakran & Anr. Reported in (2007) 3
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SCC 75, the Court has reiterated the powers of the High Court
in such cases. In para 16 of the said decision the Court has
observed as under:
"16. From the aforesaid decisions, it is apparent that
while exercising the powers in appeal against the
order of acquittal the Court of appeal would not
ordinarily interfere with the order of acquittal
unless the approach of the lower Court is vitiated by
some manifest illegality and the conclusion arrived
at would not be arrived at by any reasonable person
and, therefore, the decision is to be characterized as
perverse. Merely because two views are possible,
the Court of appeal would not take the view which
would upset the judgement delivered by the Court
below. However, the appellate court has a power to
review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse
and the Court has committed a manifest error of
law and ignored the material evidence on record. A
duty is cast upon the appellate court, in such
circumstances, to re-appreciate the evidence to
arrive to a just decision on the basis of material
placed on record to find out whether any of the
accused is connected with the commission of the
crime he is charged with."
6.4 Similar principle has been laid down by the Apex Court
in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors,
reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by
LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the
powers which this Court may exercise against an order of
acquittal are well settled.
6.5 It is also a settled legal position that in acquittal appeal,
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the appellate court is not required to re-write the judgment or
to give fresh reasoning, when the reasons assigned by the
Court below are found to be just and proper. Such principle is
laid down by the Apex Court in the case of State of Karnataka
Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is
held as under:
".... & This court has observed in Girija Nandini
Devi V. Bigendra Nandini Chaudhary (1967)1 SCR
93: (AIR 1967 SC 1124) that it is not the duty of the
appellate court when it agrees with the view of the
trial court on the evidence to repeat the narration of
the evidence or to reiterate the reasons given by the
trial court expression of general agreement with the
reasons given by the Court the decision of which is
under appeal, will ordinarily suffice.
6.6 Thus, in case the appellate court agrees with the
reasons and the opinion given by the lower court, then the
discussion of evidence is not necessary.
7. We have gone through the judgment and order passed by
the trial court. We have also perused the oral as well as
documentary evidence led by the trial court and also
considered the submissions made by learned APP for the
appellant-State.
7.1 The trial Court, after appreciation of the evidence, found
that in the deposition of the complainant who is the grand
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father of victim, deposition of the father of the victim and even
the deposition of the victim girl Ex. 42, it does not appear the
accused no.2 issued threat to create fear to the victim girl and
issued thereat to kill her and committed the rape against her
will and wish but as against that, the complainant has clearly
stated in his cross examination that the accused no.2 has been
implicated falsely by the police and as the victim herself has
clearly stated in her deposition that it has not happened that
the accused no.2 made obscene act with her and issued threat
after committing obscene act. The learned trial court has
observed that the victim herself has clearly stated in her
deposition that doctor did not ask her and thus the case history
given before the doctor by the victim girl is not found
trustworthy.
7.2 Moreover, the learned trial court has clearly observed in
para 50 of the judgment that when the victim herself has not
supported the fact that the accused no.2-respondent herein has
issued her threat and frequently committed rape upon her then
by placing reliance on the case history given by victim girl
before the Doctor or the statement under Section 164 of the
CRPC recorded before the Magistrate, sentence cannot be
passed against the accused no.2.
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7.3 In this fact of situation, learned Sessions Judge has found
that there are serious lacunae in the prosecution case and the
prosecution has failed to establish the case against the
respondent. Therefore, the trial court has given the benefit of
doubt to the accused and we do not find any reason to interfere
with the said finding.
7.4 Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned APP for the appellant is not in a position to show any
evidence to take a contrary view of the matter or that the
approach of the trial court is vitiated by some manifest
illegality or that the decision is perverse or that the trial court
has ignored the material evidence on record.
8. In the above view of the matter, we are of the considered
opinion that the trial court was completely justified in
acquitting the respondent-original accused no.2 of the charges
leveled against him. We found that the findings recorded by the
trial court are absolutely just and proper and in recording the
said findings, no illegality or infirmity has been committed by
it.
9. We are, therefore, in complete agreement with the
findings, ultimate conclusion and the resultant order of
acquitting the respondent-original accused no.2 of the offence
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under Section 376, 506(2) of the Indian Penal Code and hence
find no reasons to interfere with the same. Hence the appeal is
hereby dismissed.
10. Record and Proceedings to be sent to the trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
K. S. DARJI
