[Cites 13, Cited by 0]
Gujarat High Court
State Of Gujarat vs Mahipat @ Parshottam Bachubhai on 27 February, 2026
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/1218/1997 JUDGMENT DATED: 27/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1218 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
MAHIPAT @ PARSHOTTAM BACHUBHAI
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Appearance:
MS JYOTI BHATT, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR BHISHMA A. RAWAL(12270) for the Opponent(s)/Respondent(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 27/02/2026
JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The State has challenged the judgment of acquittal under
Section 378 of the Code of Criminal Procedure, 1973
passed by the learned Additional Sessions Judge, Rajkot at
Gondal in Sessions Case no.114/96 dated 13.11.1997.
2. The charge against the accused was drawn under Sections
376 and 506(2) of the Indian Penal Code, 1860 (hereinafter
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referred to as "IPC" for short) on the ground that on
21.03.1996 at about 23.30 hrs., at Juni Megani, Kotda
Sangani Taluka, the accused, with the criminal intention,
had committed rape on the minor daughter of Govindbhai
Jekabhai. The victim was taken to a field near Pethapir
Dada ni Sod. Even prior to the incident, in the outskirts of
Juni Megani, the accused had forcibly committed the
offence of rape in the field besides the field of the accused
during night hours. Further, on that day and time, the
accused had threatened the victim girl to do away with her
life as well as her brother's life.
3. Learned APP Ms. Jyoti Bhatt, aggrieved by the judgment of
acquittal, submitted that the learned Trial Court Judge has
not fully appreciated the fact that the victim's deposition is
supported by the deposition of the prosecution witnesses as
well as the medical evidence. Ms. Bhatt, learned APP
submitted that the age of the victim girl as fourteen and a
half years has been proved by the testimony of the victim
herself, the mother - Ramaben Govindbhai, father -
Govindbhai Jekabhai and other two witnesses - Babubhai
Devjibhai and Harunbhai Ismailbhai. Ms. Bhatt, learned APP
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submitted that Babubhai Devjibhai Vasoya was the Talati-
cum-Mantri and Harunbhai Ismailbhai was examined as
Principal of the Primary school who both have proved the
birth date of the victim as 18.08.1981, which gets verified
from the register maintained by the Talati-cum-Mantri as
well as the school leaving certificate. Ms. Bhatt, learned
APP submitted that the deposition of Dr. Ravjibhai
Parbatbhai at Exh.9 proves the possibility of sexual
intercourse and submitted that the FSL report has not been
properly appreciated.
3.1 Ms. Bhatt, learned APP has relied upon the decision in the
case of Sushil Kumar Tiwari v. Hare Ram Sah, 2025 (0)
AIJEL-SC 75808 stating that minor discrepancy should not
be made the base for acquittal and stated that if the
testimony of the victim is found fairly consistent and
creditworthy, then, the Court should believe the victim and
convict the accused.
4. The learned Trial Court Judge has examined the evidence of
the witness and has believed the age of the victim as
fourteen and a half years on the date of the incident.
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5. The evidence of the victim requires analysis, where the
victim girl was given voir dire test and the learned Trial
Court Judge has, thus, verified the ability and the capability
of the witness to understand the sanctity of giving the
deposition.
5.1 As per her testimony, the accused is from her own Village
and she has completed her primary education. Referring to
the date of the incident, she stated that she had gone alone
to observe the drama of Mahakali Mataji Mandir, where
many people had gathered and accused was also present to
watch drama. She stated that there were many females
there and at about 11 O'Clock night she left the place to
answer the nature's call and she found accused following
her and therefore, she increased her speed and the accused
running caught hold of her wrist and asked her to follow
him silently; otherwise, threatened to kill her. She stated
that the accused took her to Gebansha Pir na Vada and had
stated about the commission of rape. She stated that while
leaving the place, the accused had threatened her that if at
all she would tell her parents, then, he would kill her
brother and therefore, in the night being terrified, she went
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to sleep.
5.2 The witness further stated that next day morning, she
started feeling the pain and therefore, told her mother
about the incident who thereafter informed the father.
5.3 The witness also stated that 15 days prior to the incident
earlier too, when she was going to the toilet, at that time,
the accused had forcibly taken her near the field of
Babubhai Punabhai and had committed rape and at that
time too, he had threatened her and therefore, feeling
afraid, she has not informed anyone about the incident.
5.4 She stated that the complaint at Mark-A was given by her
to the Kotda Sangani Police Station. She identified her
signature.
5.5 The witness further stated that after giving the complaint,
they returned back the home and thereafter, the police had
come to her house and in presence of the Panchas, the
police has seized her clothes Muddamal articles no.1, 2 and
3. She identified the same clothes as being worn on the
date of incident. She also identified Muddamal articles no.4,
5 and 6 as clothes worn by the accused and she showed
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the place of incident to the police and thereafter, she was
taken to Gondal Government Hospital, where she was
examined by the Doctor. She stated that thereafter, she
also shown the place, where earlier too, the accused had
committed the offence of rape, which was the field of
Babubhai Punabhai.
5.6 In the cross-examination, she was confronted with the
distance of the place, which she could clearly state about
the time period necessary to cover the distance. The
witness stated that Gebansha Pir area is in the middle of
the Village and besides the Dargah, there were many
residential place. She affirms the difference between
Gebansha Pir and Pethapir Dargah. Pethapir Dargah was
very far away from the Village.
5.7 In the cross-examination, she stated that since many
years, she was knowing the accused prior to the incident.
She stated that the accused was from her community and
they had no relation to visit each other's house. The
witness stated that she never met the accused prior to the
present incident. After the incident only, she could know
about the name of father of the accused. The name of the
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father of the accused was given by Harmirbhai Sarpanch.
The witness stated that Hamirbhai Sarpanch would often
come to their house and she had made a complaint to
Hamirbhai Sarpanch. She had invited Hamirbhai to her
house to inform that accused had committed rape on her
and that had occurred prior to informing the police. When
she had gone to file the complaint, she came to know about
the name of the accused. She further clarified that she told
the Sarpanch that someone had raped her at night, so the
Sarpanch inquired from the Village and told her that it was
accused who had committed rape on her.
6. The evidence of this victim witness thus becomes doubtful.
The charge which was framed is about two incidents, which
she states; one at the place near Gebansha Pir Dargah and
the earlier incident she states about a field besides the field
of the accused, while she stated that she had not met the
accused prior to the present incident.
7. The learned Trial Court Judge has also found certain
discrepancies with regard to the clothes, which were
handed over to the police. The learned Trial Court Judge
came to the conclusion that it could not be made sure as to
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the same clothes, which the victim had worn at the time of
the incident were handed over to the police. The learned
Trial Court Judge had not believed the victim girl since it
was seen that she had changed the place of incident, the
place, which was noted as Gebansha Pir, was in a
residential area. The witness stated that the clothes, which
she handed over to the police in presence of the panch,
were blood stained and the underwear too, was stained
with blood. She had visited the hospital on the next day
and at that time too, she had shown the Doctor of she
bleeding from the genital area, which could be possibly her
menstruation blood.
8. The learned Trial Court Judge has also found that the
underwear, which the victim had shown before the panchas
during the Panchnama was of black colour, while the FSL
report reflects the underwear of green colour. The FSL
report in that fact of observation was also not believed and
further the learned Judge has noted that there was no
evidence of rape, or sexual assault.
9. The evidence of the victim is not of sterling quality to
convict the accused. She stated that she was twice raped
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by the accused, however, the name of the accused was
given to her by the Sarpanch. The complaint came to be
filed only after deliberation of the Sarpanch. The evidence
on record, the learned Trial Court Judge did not find
corroborating with the clothes as well as medical evidence,
while the examination shows no sign of any blood or semen
on the body of the victim, nor found any external injuries of
any kind to consider as a rape, nor any injury was found
even on the back of the victim girl if the place of the
incident has to be noted of forcible intercourse. The learned
Trial Court Judge has analysed the evidence and has also
found the inconsistency in the evidence of the mother.
When the charge was that the victim girl was stating that
when she started having the pain in stomach, on the next
day, she informed her mother, while the contrary evidence
comes on record that on the next day, when the mother
found that the girl was silent and was not speaking, at that
time, she inquired and the victim informed her about the
incident. The learned Trial Court Judge has also observed
that though the witness stated that the complaint was
given on the next day, but as per the FIR, the complaint
was filed on the fourth day. In view of this fact, the
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evidence of the victim cannot be considered as a credible
evidence to convict the accused. The learned Trial Court
Judge has appreciated the evidence of all the witnesses and
more specifically the victim as well as the medical evidence
and the FSL report, which do not corroborate with each
other. The victim does not appear to have stated true facts.
The deliberation with the Sarpanch, prior to filing of the
complaint and the Sarpanch informing the name of the
accused to the complainant, itself creates doubt, coupled
with the fact that the place of the incident also does not
match with the deposition and further, it would be hard to
believe that any such incident would have taken place in a
public area, which was surrounded by residential houses.
10. In the case of Darshan Singh v. State of Punjab, (2010) 2
SCC 333, it has been observed as under:-
"61. In a case of acquittal, if the trial court's
view is a possible or plausible view, then the
Appellate Court or the High Court would not
be justified in interfering with it. It is the
settled legal position that there is
presumption of innocence and that
presumption is further fortified with the
acquittal of the accused by the trial court.
The Appellate Court or the High Court would
not be justified in reversing the judgment of
acquittal unless it comes to a clear conclusion
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that the judgment of the trial court is utterly
perverse and, on the basis of the evidence on
record, no other view is plausible or possible
than the one taken by the Appellate Court or
the High Court."
11. In the case of Chandrappa v. State of Karnataka, (2007) 4
SCC 415, it has been observed as under:-
"41. Recently, in Kallu v. State of M.P.
[(2006) 10 SCC 313 : (2006) 3 SCC (Cri)
546 : AIR 2006 SC 831] this Court stated:
(SCC pp. 317-18, para 8)
"8. While deciding an appeal against
acquittal, the power of the appellate court is
no less than the power exercised while
hearing appeals against conviction. In both
types of appeals, the power exists to review
the entire evidence. However, one significant
difference is that an order of acquittal will not
be interfered with, by an appellate court,
where the judgment of the trial court is
based on evidence and the view taken is
reasonable and plausible. It will not reverse
the decision of the trial court merely because
a different view is possible. The appellate
court will also bear in mind that there is a
presumption of innocence in favour of the
accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to
interfere, it should assign reasons for
differing with the decision of the trial court."
(emphasis supplied)
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:
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(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 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 curtail extensive
powers of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of "flourishes of language"
to emphasise 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."
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12. In the case of H.D. Sundara v. State of Karnataka reported
in (2023) 9 SCC 581, the Hon'ble Supreme Court held as
under:-
"8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment [State of Karnataka v.
H.K. Mariyappa, 2010 SCC OnLine Kar 5591]
rendered by the High Court while deciding an
appeal against acquittal under Section 378 of
the Code of Criminal Procedure, 1973 (for
short "CrPC"). The principles which govern
the exercise of appellate jurisdiction while
dealing with an appeal against acquittal
under Section 378CrPC can be summarised
as follows:
8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after reappreciating
the evidence, is required to consider whether
the view taken by the trial court is a possible
view which could have been taken on the
basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with
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the order of acquittal only if it comes to a
finding that the only conclusion which can be
recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible."
13. In the case of Sanjeev v. State of H.P., (2022) 6 SCC 294,
it has been held as under:-
"9. The approach to be adopted was laid
down by this Court in Ramesh Babulal Doshi
v. State of Gujarat [Ramesh Babulal Doshi v.
State of Gujarat, (1996) 9 SCC 225 : 1996
SCC (Cri) 972] as under : (SCC p. 229, para
7)
"7. Before proceeding further it will be
pertinent to mention that the entire approach
of the High Court in dealing with the appeal
was patently wrong for it did not at all
address itself to the question as to whether
the reasons which weighed with the trial
court for recording the order of acquittal
were proper or not. Instead thereof the High
Court made an independent reappraisal of
the entire evidence to arrive at the
abovequoted conclusions. This Court has
repeatedly laid down that the mere fact that
a view other than the one taken by the trial
court can be legitimately arrived at by the
appellate court on reappraisal of the evidence
cannot constitute a valid and sufficient
ground to interfere with an order of acquittal
unless it comes to the conclusion that the
entire approach of the trial court in dealing
with the evidence was patently illegal or the
conclusions arrived at by it were wholly
untenable. While sitting in judgment over an
acquittal the appellate court is first required
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to seek an answer to the question whether
the findings of the trial court are palpably
wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate court answers
the above question in the negative the order
of acquittal is not to be disturbed.
Conversely, if the appellate court holds, for
reasons to be recorded, that the order of
acquittal cannot at all be sustained in view of
any of the above infirmities it can then--and
then only--reappraise the evidence to arrive
at its own conclusions. In keeping with the
above principles we have therefore to first
ascertain whether the findings of the trial
court are sustainable or not."
14. In the case of Bhupatbhai Bachubhai Chavda & Anr. v.
State of Gujarat, 2024 SCC OnLine SC 523, it has been
held as under:-
"6. It is true that while deciding an appeal
against acquittal, the Appellate Court has to
reappreciate the evidence. After re-
appreciating the evidence, the first question
that needs to be answered by the Appellate
Court is whether the view taken by the Trial
Court was a plausible view that could have
been taken based on evidence on record.
Perusal of the impugned judgment of the
High Court shows that this question has not
been adverted to. Appellate Court can
interfere with the order of acquittal only if it
is satisfied after reappreciating the evidence
that the only possible conclusion was that the
guilt of the accused had been established
beyond a reasonable doubt. The Appellate
Court cannot overturn order of acquittal only
on the ground that another view is possible.
In other words, the judgment of acquittal
must be found to be perverse. Unless the
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Appellate Court records such a finding, no
interference can be made with the order of
acquittal. The High Court has ignored the
well-settled principle that an order of
acquittal further strengthens the presumption
of innocence of the accused. After having
perused the judgment, we find that the High
Court has not addressed itself on the main
question."
15. We do not find any infirmity or illegality in the impugned
judgment. The view of the Trial Court is consistent with the
evidence recorded. We have not found any perversity to
overturn the judgment.
16. In the result, the appeal fails and is hereby dismissed. The
impugned judgment and order dated 13.11.1997 passed by
the learned Additional Sessions Judge, Rajkot at Gondal in
Sessions Case no.114/96 is hereby confirmed. Bail bond, if
any, stands discharged. Registry is directed to send the
record and proceedings back to the Trial Court forthwith.
(GITA GOPI,J)
(HEMANT M. PRACHCHHAK,J)
Maulik
