Gujarat High Court
State Of Gujarat vs Ashok Mansukhlal Bhateliya on 27 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/2082/2004 JUDGMENT DATED: 27/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2082 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
ASHOK MANSUKHLAL BHATELIYA & ANR.
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Appearance:
MS CHETNA SHAH, APP for the Appellant(s) No. 1
MR MM TIRMIZI(1117) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 27/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment and order of
acquittal.
2. Being dissatisfied by the judgment and order passed by the
learned Sessions Judge, Jamnagar, passed in Sessions Case No.74 of
2000, dated 21.02.2004, acquitting the respondent from the offence
under Sections 376, 506(2) and 114 of the IPC, the State has preferred
instant appeal under Section 378 of the Cr.P.C.
3. This Court has heard Ms.Chenta Shah, learned Additional Public
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Prosecutor, and Mr.M.M. Tirmizi, learned advocate, for the respective
parties.
4. Brief facts giving rise to file the present Appeal are that, the
prosecutrix aged about 16 years was abused sexually by the accused
Ashok Mansukhlal and the accused Amina Sanghadh, was the
instrumental in committing the offence by accused no.1. The victim
was resident of Village Dwarka. The accused no.2 is related to the
victim. According to the prosecution case, the victim used to visit the
house of accused no.1 and she was forced to visit the house by A2, as a
result, prior to the date of the FIR, she had maintained physical
relationship with A1 and according to her allegation, she was forced to
indulge into such kind of activities by A1. After passage of time, she
got pregnant which led to filing of the FIR. The accused were arrested.
So far as the age is concerned, the prosecution could not obtain the
birth certificate or any other admissible evidence to prove the age. The
medical evidence shows her age about 17 below 20. In such
circumstances, after filing of the chargesheet, the accused were put on
trial.
5. In the course of trial, the prosecution adduced the following oral
as well as documentary evidence in support of its case:
Oral evidence -7
PW 1 - Exh.14 Dr. PRS
PW 2 - Exh.17 Dr. BC Jethava
PW 3 - Exh.28 Dr. IB Punatar
PW 4 - Exh.32 Dr. KA Khatri
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PW 5 - Exh.36 H. Ishakbhai
PW 6 - Exh.37 RJ Barot
PW 7 - Exh.43 KM Varu
Documentary evidence -23
Exh.20 Yadi to medical officer
Exh.29 Injury certificate
Exh.44 Yadi for blood samples of victim
Exh.30 Yadi to gynecology department
Exh.29 Certificate by Dr. IB Punatar
Exh.18 HD Terminology report of victim
Exh.23 Yadi for blood sample of victim
Exh.46 Yadi
Exh.21 Certificate by Dr. D Pakothari
Exh.45 Letter dated 07/08/99
Exh.16 Yadi by PO to Medical officer Dwarka
Exh.15 Certificate by medical officer
Exh.38 Panchnama of place of offence
Exh.39 Panchnama of blood sample of victim
Exh.40 Arrest Panchnama
Exh.41 Panchnama of blood sample
Exh.48 Copy of station diary entry
Exh.34 Case papers
Exh.22 Victim history papers
Exh.24 Certificate of blood sample of victim
Exh.25 Certificate of Ossification Test
Exh.26 Certificate of Ossification test
Exh.35 Report of ossification test regarding age of victim
6. On conclusion of oral evidence, the trial Court recorded further
statements of the accused as provided under Section 313 of the Code,
wherein, they claimed their innocence.
7. The learned Sessions Judge after appreciating and examining the
oral as well as documentary evidence acquitted the accused herein for
the offences with which they were charged, on the ground that, the
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prosecution miserably failed to prove the charge of rape as it is a case
of consensual relationship and the age of the victim seems to be above
16 years.
8. In view of the aforesaid facts and circumstances, this acquittal
appeal has been preferred by the State.
9. In the present case, there is no need to refer the testimonies of
doctors as the opinion of the doctors and the age determined on the
basis of radiological test goes unchallenged. The only victim PW:5 is
being examined to prove the charge of rape. The parents of the victim
have not been examined. In order to prove the age, the victim does not
have any knowledge about her date of birth and where her birth was
taken place. The only evidence on the aspect of age is the medical
evidence. Thus, we deem it fit to refer the testimony of the victim
PW:5. The victim in her chief examination, admitted that prior to the
registration of the FIR, she had frequently visited the house of the
accused and maintained physical relationship and during the period of
8 to 9 months, she did not have raised any objection against the act of
the accused nor filed any complaint either to the police or to any other.
The victim being illiterate person was unable to state her date of birth
as well as place of birth.
10. Ms.Chetna Shah, learned Additional Public Prosecutor appearing
for the appellant - State, assailing the judgment and order of acquittal,
has submitted that the findings of acquittal are contrary to law and
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evidence on record and the findings recorded are palpably erroneous
and based on the irrelevant material. The evidence of the victim is of
sterling quality and her version is credible on the aspect of act of
sexual abuse and her evidence found truthful. In such circumstances,
the accused failed to discharge his burden to prove that the victim was
consenting party. Thus, the learned Trial Court failed to appreciate this
aspect and in a mechanical manner, held and observed that the age of
the victim was about 16 years old and she was a consenting party.
11. In such circumstances, as referred above, it has been submitted
that while acquitting the respondent accused, the trial Court has
discarded and ignored the truthful, reliable and acceptable evidence
and as such, no cogent reasons being assigned while discarding such
evidence. Therefore, it is submitted that the conclusion of acquittal
recorded by the Trial Court is contrary to the evidence on record and
upon erroneous understanding of law. Thus, it is prayed that the
prosecution has succeeded in proving the charge against the
respondents accused and the judgment and order of acquittal be set
aside and accused may be convicted and sentenced for the offence as
referred above.
12. Mr.Tirmizi, learned advocate appearing for the private
respondents- accused has submitted that the High Court in a case of
Appeal against the acquittal, can interfere only when there are
compelling substantial reasons for doing so and more particularly, the
findings are without reasons and unreasonable and contrary to the
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evidence. In the facts of the present case, the prosecution miserably
failed to prove that the victim was below the age of 16 years and
having regard to the longstanding relationship, the Trial Court has
rightly held that the relationship was a consensual in nature.
13. In such circumstances, referred to above, learned counsel
appearing for the respondents accused, has submitted that the Trial
Court has assigned cogent and sufficient reasons while acquitting the
accused and therefore, the judgment of acquittal passed is well
reasoned, legally sustainable and does not suffer any infirmity
warranting interference by this Court.
14. Before proceeding to address the rival submissions, we would
like to place on record the scope of interference in an appeal against
the acquittal and when the same is justified. In exceptional cases,
where there are compelling circumstances and the judgment under
appeal is found to be perverse, the appellate court can interfere with the
judgment of acquittal. The Appellate Court should bare in mind the
presence of innocence of the accused and further that, the trial Court's
acquittal bolsters the presumption of his innocence. Interference in a
routine manner, where the other view of possible should be avoided,
unless there are reasons for interference.
15. In the present case the issue falls for our consideration as to
whether the trial Court was justified in acquitting the accused?
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16. We have carefully examined the oral as well as documentary
evidence and perused the findings of acquittal rendered by the Trial
Court.
17. The prosecution case rests on the testimony of the victim PW:5.
Upon careful examination of her testimony, it is evident that the house
of the accused was situated in the city area of Dwarka and the same
was densely populated. Thus, the theory of locking down the house by
accused no.2 and forced the victim to indulge such activities cannot be
accepted. The victim herself had visited the house of the accused on
alternate day during 7 to 8 months prior to the date of the FIR. She did
not have raised any hue and cry nor filed any complaint to anyone. So
far as age is concerned, the victim had not stated about her date of birth
and place of her birth. The I.O. could not obtain the evidence in this
regard as the whereabouts of the parents of the victim, despite of due
diligence could not find by him. The estimated age determined on the
basis of radiological test is the only evidence to be considered in
determining the age. The Trial Court has taken into consideration the
age which the victim has stated while stepping into witness-box and
medical age. In such circumstances, we are of the view that the age of
the victim was above 16 years and considering the her longstanding
relationship with accused no.1, the reasonable inference can be drawn
that she was consenting party. The incident registered in the year
1999. The amendment in Section 375 was notified on 03.02.2013 and
prior to the amendment, there was a provision that the man is liable for
the rape with or without the consent of the victim when she is under 16
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years of age. In the present case, the victim was above 16 years and
therefore, the theory of consent being rightly believed by the Trial
Court and the reasons thereof are based on the evidence on record. In
such circumstances, the prosecution failed to prove the charge of rape
against the accused beyond reasonable doubt. Thus, therefore, the view
of the Trial Court as to the credibility of the witnesses is possible and
plausible view and the Trial Court while analyzing the evidence has
assigned cogent and sound reasons and therefore, findings of acquittal
are reasonable and based on the evidence on record and we do not find
any perversity in the findings of acquittal so as to interfere. Thus, in
our considered opinion, the Trial Court was justified in acquitting the
accused and we are in complete agreement with the findings, ultimate
conclusion and resultant order of acquittal recorded by the Court below
and hence finds no reason to interfere with the same.
18. With the observations as aforesaid, the appeal is accordingly
dismissed. The Registry is directed to send back the R & P to the Trial
Court. Bail bonds are cancelled, if any, and surety is discharged.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Rakesh
