Gujarat High Court
State Of Gujarat vs Raksiji Laxmanji Thakore on 14 May, 2025
NEUTRAL CITATION
R/CR.A/505/1999 JUDGMENT DATED: 14/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 505 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT --Sd/-
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Approved for Reporting No Yes
No
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STATE OF GUJARAT
Versus
RAKSIJI LAXMANJI THAKORE
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Appearance:
MR. L. B. DABHI, APP for the Appellant
MR.MRUDUL M BAROT(3750) for the Opponent/Respondent
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. Heard Mr. Dabhi, learned APP for the appellant - State.
Mr. Mrudul Barot, learned advocate has appeared through
legal aid on behalf of the respondent no.1 - original accused.
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2. The present appeal under Section 378(1)(b) of the Code
of Criminal Procedure is filed at the instance of State
challenging the judgment and order dated 14 th September,
1998 passed by the learned Addl. Sessions Judge,
Banaskantha - Palanpur in Sessions Case no.43 of 1998. By
the said impugned judgment and order, the learned Judge has
recorded acquittal of the present respondent - accused for the
offence alleged under Section 363, 376 of the Indian Penal
Code read with Section 511 as well as under Section 323 and
325 of the Indian Penal Code.
3. In nutshell, the case of the prosecution as can be
gathered from the record is as under :-
3.1 On 10th November, 1997 the daughter of the brother of
original complainant viz. Kantilal Mohanlal Joshi had gone to
hand over the tiffin. However, she had not returned to her
home. The Janvajog Entry no.18 of 1997 was registered with
the concerned Police Station. Thereafter, the complainant
had approached the concerned Police Station to lodge the
complaint on 11th November, 1997.
3.2 It was reported that the daughter of his brother viz.
Chetnaben @ Takhiben aged 7 years, had gone on Parakhadi
Bus Stand to hand over the tiffin. However, she had not
returned to her home. The complainant along with his
brother Kantilal Mohanlal, Jagdishbhai Mohanbhai Joshi and
one Patel Sardarbhai Ramjibhai and others have inquired
about her whereabouts on 10th November, 1997 all throughout
the night. On 11th November, 1997 in early hours around 6:30
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a.m., one Patel Dalsangbhai Valubhai and Prajapati
Laxmanbhai Jethabhai along with Kamuben Kantilal Nai of
their village had approached them, who had caught over one
unknown person from whom they have traced Chetnaben @
Takhiben.
3.3 The complainant had reported that the blood was oozing
out from her mouth when she was found. When the
complainant had inquired from Chetnaben, she had explained
that while she had gone to hand over the tiffin to her father,
on her way she had stopped at the shop of Raval Dineshbhai
and had purchased Pepsi and while she was returning to her
home at around 6:30 hours in the evening, she had come
across the accused and he had solicit her to accompany him
by saying that the accused was to recover the money for the
diesel, which he had provided to her father. Hence, she had
agreed to accompany him to the field. However, on their way,
she was taken to a different field, whereby she realized that
her house was not there. When she had tried to escaped from
the accused, the accused had stuffed her mouth by pushing
cloth in her mouth. She has described the place as a field
where there were standing crops of Castor. She had further
described that it had turned black and the accused had
attempted to remove her undergarments, whereby she
resisted and has shouted for help. However, the accused had
assaulted by slapping her and she was pushed on the ground.
She had resisted the accused by screaming, however, in an
attempt to push the cloth inside her mouth, she was injured
whereby her two tooths have broken and blood had started
oozing from her mouth. She had further described that in
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early hours on 11th November, 1997 while accused was taking
her away towards field, witness Kamuben w/o. Kantilal Nai
had saw them and other villagers have also rushed to save
her.
3.4 Considering the aforesaid allegations of the complainant,
the FIR came to be registered against the accused with the
Vadgam Police Station vide I-C.R. No.60 of 1997 dated 11 th
November, 1997 for the offence punishable under Sections
363, 325 and 323 of the Indian Penal Code. The PSI of the
concerned Police Station had investigated the complaint and
the statement of the witnesses were recorded. The
Panchnama were also drawn. The medical examination of the
victim was carried-out. The accused was arrested and was
sent for judicial custody, after the remand. At the end of the
investigation, the charge-sheet was filed on 10 th January, 1998
against the accused for the offence punishable under Sections
363, 325, 323 and Section 376 read with Section 511 of the
Indian Penal Code. Initially, it was registered as Criminal
Case no.706 of 1998 before the learned Chief Judicial
Magistrate, Palanpur. However, noticing the fact that the
offence falls within the jurisdiction of Vadgam Police Station,
the case was transferred to the Court of learned Second Joint
Judicial Magistrate. The case was committed to the Sessions
Court, Palanpur under Section 209 of the Code of Criminal
Procedure and was registered as Sessions Case no.43 of 1998.
3.5 The charge was framed at Exh.5 against the accused for
the offence alleged under Sections 366, 376 read with Section
511, Section 325 and 323 of the IPC. The accused had
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pleaded not guilty and the trial was conducted. During the
course of trial, the prosecution has examined in all 12
witnesses. Apart from the evidence of the witness being led,
the prosecution has also led the following documentary
evidence. The details of the aforesaid evidence led by the
prosecution is reproduced in the tabular form as under :-
~:: Oral Evidence ::~
Sr. no. Particular Exh.
1. Dhansukhlal Mohanlal Joshi - Complainant 09
PW-1
PW-2
3. Faljibhai Laxmanbhai Patel - Panch witness 13
- PW-3
PW-4
Medical Officer- PW-11
12. Gulabsinh Amarsinh Parmar - Investigating 28
Officer - PSI - PW-12
~:: Documentary Evidence ::~
Sr. no. Particular Exh.
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5. Suchipatra issued by the in-charge Police 25
Inspector, Vadgam Police Station at Camp
Parakhdi to Police Officer, Vadgam Police
Station
The prosecution has rest their case by submitting
purshis at Exh.29 declaring the closure of their evidence. The
further statement of the respondent - accused has been
recorded under Section 313 of the Code of Criminal
Procedure, whereby the respondent accused has mainly
denied all incriminating circumstances brought-out in
evidence against him and has pleaded innocent. As regards
the specific question put to him about the case of the
prosecution of recovery of the amount against the diesel, the
respondent - accused had responded by submitting that a
false case has been lodged against him. He is in fact doing
labour work. No further evidence or any witness has been
examined by the accused.
3.6 The trial Court upon overall appreciation of the evidence
brought on record, has found that the prosecution has failed
to prove their case by establishing involvement of the accused
beyond any doubt and has therefore by impugned judgment
and order dated 14th September, 1998 has acquitted the
present respondent - accused for the offence alleged under
Sections 366, 376 read with Section 511, Section 325 and 323
of the IPC. Hence, the present appeal at the instance of the
State.
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4. Mr. Dabhi, learned APP for the appellant - State while
assailing the impugned judgment and order of acquittal has
invited our attention to the evidence of the victim. The
reliance was also placed on the complaint lodged by the
original complainant. Our attention was also invited to the
arrest panchnama of the accused and the place of offence. By
referring to the aforesaid evidence, learned APP has
submitted that the victim was found from the custody of the
respondent - accused.
4.1 The reliance was also placed on the evidence of the
eye-witness Kamuben Kantilal Nai, who has been examined at
Exh.22. While referring to the evidence of the aforesaid
witness, learned APP has submitted that the prosecution has
beyond reasonable doubt established the involvement of the
accused. He has therefore submitted that the Trial Court
committed serious error in recording the order of the
acquittal.
4.2 Our attention was also invited to the Medical Certificate
produced on record, whereby the case of the prosecution that
the accused had slapped the victim has clearly been
established. According to him, learned Judge merely on
assumption has brushed aside the aforesaid evidence by
observing that the victim may have received such injury while
she fell down on the ground.
4.3 Learned APP has placed reliance on the deposition of
victim and has submitted that victim was hardly 7 years of age
at the time of incident and looking at her evidence, she has
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identified accused in Court and has given clear version of the
occurrence of incident. In such circumstances, merely
because victim in her cross has confide about the fact that she
has appraised about her statement recorded before Police,
learned Judge ought not to have brushed aside her evidence.
4.4 Lastly, learned APP has submitted that the sole evidence
of the victim is sufficient to bring home charge against
accused and has therefore urged to allow the present appeal
and to convict the respondent with suitable sentence.
5. We have carefully considered the submissions made by
the learned APP for the appellant - State in light of the
original Record and Proceedings. We have also closely
examined the findings and reasons assigned by the learned
Judge in light of the evidence brought on record.
5.1 On overall consideration of the evidence brought on
record, the learned Judge has noticed that the evidence of the
victim does not inspire any confidence. While appreciating
the evidence of the victim, the learned Judge has noticed that
the victim was aged 7 years at the time of incident and the
accused was an adult in whose company the victim had stayed
throughout the night. The allegation as regards sexual
assault, which is made by the victim against the accused, as
can be gathered from her evidence, is that the victim had
attempted to remove her undergarments. However, there is
no further allegations as regards act to commit rape has been
attributed against the accused.
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5.2 The motive which is attributed to the accused was that
under the pretext of recovery of the money against the diesel,
the victim had willingly accompanied him. While appreciating
the evidence of the victim, she has in her cross-examination
admitted the fact that she had gone to the shop to purchase
Pepsi and thereafter, she had started for her way to home.
However, she has also admitted that there were many
customers when she had gone to the shop of one Dipakbhai.
Noticing the aforesaid circumstances, the learned Judge has
arrived at a conclusion that it cannot be believed that the
accused had forcefully taken away her when she was
surrounded by the villagers.
5.3 The learned Judge upon evaluation of the Medical
Certificate, as against the injury received by the victim, has
arrived at a conclusion that the cause of injury may be as a
result of she having sustained while she was running to the
field whereby because of fall she was hit by the hard and blunt
substance, as transpired in the injury certificate and opined
by Medical Officer.
5.4 Lastly, the learned Judge has noticed that in her cross-
examination, she has fairly conceded that her lawyer and her
father had tutored her about her statement. Noticing the
aforesaid admission on part of the victim, the learned Judge
has arrived at a conclusion that the accused has been
forcefully implicated for the offence alleged. Apart from the
evidence of victim, the learned Judge has also taken into
consideration the evidence of the other witnesses. On overall
consideration, the learned Judge has arrived at a conclusion
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that the prosecution has failed to establish a case against the
accused beyond reasonable doubt and has therefore, recorded
acquittal of the respondent - original accused for the offence
alleged.
6. Looking to the controversy involved, we have been called
upon to adjudicate on evidence of victim. Before examining
the evidentiary value to be attached with the evidence of the
victim, it would be appropriate to look at legal position in this
regards. In view of Section 118 of the Evidence Act, 1872
children are considered legally competent to give their
evidence before Courts. However, the Court have been put on
guard to distinguish the admissibility of evidence and the
evidentiary value to be attached to be read as an evidence.
The Courts as a rule of prudence are expected to closely
scrutinized and evaluate carefully the same for its reliability.
7. On close examination of the evidence of the victim
(Exh.12), she has admitted in her cross that when she reached
field and noticed absence of her mother, she got frightened
and while she started running in fear she got trapped in
Naliya and got injured on her fact. She has also admitted that
her lawyer has advised her to identify person sitting last as
accused person. She has also admitted that all the facts
stated before the Court has been tutored by her father since
last two days and on the day of deposition, she was revised
her statement given before the Police.
8. We have considered the findings and reasons assigned
by the learned Judge as regards the credibility of evidence of
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victim and on re-appreciation of the evidence, we are of the
view that the evidentiary value to be attached with the
evidence of the victim losses its credential noticing the fact
that in her cross-examination she has clearly confide to the
fact that since last two days prior to her deposition before the
Trial Court, she was revised with her statement given before
the Investigating Officer. She has been guided by her lawyer
as well as by her father. In such circumstances, it would be
too dangerous to consider sole evidence of victim for the
purpose of conviction of the accused to the offence alleged.
9. Having noticed the aforesaid demenour of the victim, we
are of the view that generally trial Judge is the best person to
judge the credibility of victim and having noticed the same,
has proceeded to take a view, acquitting accused. However,
this does not preclude appellate Court to disturb the same if
from the record it transpires that the conclusion drawn is
erroneous. Nonetheless, the evidence of child is shaky and
tutored. We have tried to seek corroboration from the
evidence of other witnesses.
10. We have closely appreciated the evidence of witness
Kamuben. As per the case of the prosecution, the said witness
was the one who had seen the victim in the company of the
respondent - accused. Upon close evaluation of the evidence
of the said witness, we could notice that the said witness has
not identified the accused and though the victim has identified
the accused in the Court, no identification parade has been
conducted by the Investigating Officer. The overall
appreciation of the record does not suggest that any test
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identification parade was conducted by the Investigating
Officer during the course of investigation. In such
circumstances, the view taken by the learned Judge about the
theory that the accused was found with the victim while he
was in an attempt to save the victim upon hearing her
screaming cannot be ruled-out. Even otherwise, considering
the overall evidence on record, for the findings and reasons
assigned by the Trial Court and considering the scope of the
acquittal appeal in light of the provisions of Section 378 of the
Code of Criminal Procedure, the prosecution has failed to
establish the case beyond the reasonable doubt involving the
present respondent - original accused for the offence alleged.
11. In absence of any perversity being pointed-out by the
appellant - State against the findings and reasons assigned by
the Trial Court leading to the conclusion of acquittal, we are
not inclined to interfere with the impugned judgment and
order of acquittal. Hence, the present appeal fails and is
hereby dismissed. The judgment and order dated 14 th
September, 1998 passed by the learned Addl. Sessions Judge,
Palanpur in Sessions Case no.43 of 1998 is hereby confirmed.
R. & P. be sent back forthwith.
Sd/-
(NISHA M. THAKORE, J.)
Sd/-
(MAULIK J.SHELAT, J.)
AMAR RATHOD...
