Gujarat High Court
The State Of Gujarat vs Koli Vallabhbhai Nazabhai Khasia on 2 August, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2284 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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THE STATE OF GUJARAT
Versus
KOLI VALLABHBHAI NAZABHAI KHASIA & ORS.
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Appearance:
MR AADITYA JADEJA, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2,3
MR TUSHAR L SHETH(3920) for the Opponent(s)/Respondent(s) No.
1,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 02/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. The present appeal is directed under Section 378 of the Code of Criminal Procedure, 1973 being aggrieved and dissatisfied by the impugned judgment and order of acquittal Page 1 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined dated 10.09.2004 rendered by the learned Additional Sessions Judge, Veraval in Sessions Case No.266 of 1999 for the offences punishable under Sections 376(G), 342, 451 and 114 of the Indian Penal Code.
2. Heard Mr. Aaditya Jadeja, learned Additional Public Prosecutor appearing for the appellant - State. The appeal stands abated qua the respondent Nos.2 and 3. In view thereof, the present appeal is to be considered qua the respondents - original accused Nos.1 and 4.
3. Briefly stated, it is the case of the prosecution that C.R. - I-59/1997 was registered before Una Police Station against the respondents herein for the offences punishable under Sections 376(G), 342, 451 and 114 of the Indian Penal Code on 09.04.1997. The respondents -accused were tried by the learned Sessions Court. The case of the respondents - accused was of complete denial which resulted in acquittal by the impugned judgment and order dated 10.09.2004.
4. Mr. Aaditya Jadeja, learned APP appearing for the appellant - State relied on the grounds raised in the appeal and submitted that the prosecutrix herein was aged 14 years is Page 2 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined not disputed resultantly, the competent Court has erred in not believing the School Leaving Certificate, which is placed on record. It is submitted that on the aforesaid ground alone, the appeal is required to be allowed.
5. Having heard Mr. Aaditya Jadeja, learned APP appearing for the appellant - State, having considered the documents on record and the evidence of the prosecution witnesses, the following emerge:
5.1 We have considered the deposition of PW-1 - Rekhaben below Exh.28 wherein, it is her case that she along with the other ladies had gone to attend Manguben's baby shower at the village. The alleged incident occurred between 9:00 pm to 10:00 pm at night at Samjuben's house wherein, the accused Nos.1 and 2 raped her and the accused Nos.3 and 4 had gone away for having tea etc. It is also stated in her deposition that while she was sitting there, the doors and windows were closed. She also screamed however, it was of no avail since no one heard her screams because the doors and windows were closed. It is also the case of the prosecutrix that she was aged 14 years at the time of incident and to substantiate the same, she stated that she studied at Jamka Primary School and from Page 3 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined Jamka, they went to Surat. She registered the complaint of the said incident after a period of five days on 09.04.1997. The explanation that comes forth is that she informed about the alleged incident to her grand mother - PW-3, Puniben on the next day and PW-3, Puniben in turn called prosecutrix's father
- PW-2, Chothabhai.
5.2 We have considered the aforesaid with the deposition of PW-3, Puniben having deposed below Exh.31, because she was the one who was informed by the prosecutrix, wherein, she has deposed that she lived separately. She also deposed that Rekha had gone to the village, Chhana Vakiya, to attend the baby shower ceremony of Manguben, daughter of Sombai wherein, accused No. 1- Vallabh, and accused No. 2- Ravji followed her. Samjuben and Liliben brought Rekha to the house of the aunt (Foi) of accused No. 2 under the pretext of having tea. accused Nos. 1 and 2 outraged the modesty of Rekha and the accused Nos.3 and 4 had taken her to have tea.
Rekha - the daughter of my son, Chotha, does not have a mother. Rekha came to her on the following day and informed her about the alleged incident. It is also deposed that her son Chothabhai was not present who returned after two days Page 4 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined thereafter, she informed him. Upon his return, her son had gone to the police station to register the complaint. 5.2.1 It is not in dispute that the prosecutrix had gone to visit Sombai's daughter - Manguben's baby shower. PW-7, Sombai has deposed below Exh.51 wherein, in her examination-in-chief, she has stated that the girls had not gone anywhere and that, Chothabhai's daughter Rekhaben was with Sombai. That, there were no male with them. She has also admitted in her cross-examination that on the occasion of baby shower ceremony (Srimant) of her daughter Mangu, approximately ten to fifteen women from the village went to Chhana Vakiya. None of the men of the village had accompanied them when they had gone to Chhana Vakiya. The aforesaid is contradictory to the deposition of the prosecutrix, which raises suspicion.
5.3 We have also considered the deposition of PW-13, Hemubhai, who was the Principal of Jamka Primary School, having deposed below Exh.62, that they had the record and proceedings of the students of last 50 years of Jamka Primary School. In paragraph 7, it is deposed by the said witness that he is not sure whether Rekhaben was registered as student Page 5 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined with the school.
5.3.1 Considering the deposition of the PW-13 with the School Leaving Certificate which is produced on record at page 205, raises doubt because the School Leaving Certificate is not proved wherein, the date of birth of prosecutrix - Rekhaben is stated to be 01.06.1983. The School Leaving Certificate is not always regarded as a public document and it has to be proved in accordance with law. Section 35 of the Evidence Act provides for relevancy of an entry in public record made by a public servant in discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which, such book, register or record is kept, is itself a relevant fact. The entry made in the school register may not always be a public document as provided under Section 35 of the Evidence Act and thus, it must be proved in accordance with law as held by the Hon'ble Apex Court in 1988 Supp SCC 604 in case of Birad Mal Singhvi Vs. Anand Purohit.
5.3.2 Considering the deposition of PW-14, Dr. Jyotiben having deposed below Exh.68 that, the Ossification Test having been conducted by the Radiologist, the report was forwarded Page 6 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined to her for opinion wherein, she has opined that the age of the prosecutrix was between 16 to 18 years which was forwarded to the police station. The Ossification Test cannot be said to be conclusive piece of evidence to establish the age of the juvenile victim. The Hon'ble Apex Court in case of Jaya Mala Vs. Government of J & K. and Ors., reported in (1982) 2 SCC 538, held that the marginal error in age ascertained by radiological examination is two years on either side.
From the aforesaid, it emerges that the prosecution has failed to prove the School Leaving Certificate and the Ossification Test.
5.4 We have also perused the deposition of PW-6, Jashubhai, who was a Medical Officer at Civil Hospital, Una, having deposed below Exh.41 that the complaint having been filed after a period of five days, the alleged incident could have been examined if the complaint could have been filed within 24 hours. Further, the final opinion would be subject to chemical analysis. However, the chemical analysis appears not to have been done upon perusal of the record. PW-6, Jashubhai further opined that, he is not sure whether the prosecutrix was subjected to rape. The medical report which is produced at Page 7 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined Exh.43 is of no avail to the prosecutrix.
6. It is a cardinal principle of criminal jurisprudence that, in an acquittal appeal, if other view is possible, then also, the appellate Court ought not to substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the materials on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
6.1 In the instant case, the learned APP for the appellant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
7. It is to be observed that, while dealing with the judgment of acquittal, unless reasonings by the learned trial Court are found to be perverse, the acquittal ought not to be upset. It is further observed that, High Court's interference in such appeal in somewhat circumscribed, and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands, and not interfere in the matter in the Page 8 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025 NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined belief that if it had been the trial Court, it might have taken a different view.
7.1 At this stage, it is apposite to refer to the decision rendered in case of Bhupatbhai Bachubhai Chavda and Anr. Vs. State of Gujarat reported in [2024] 4 S.C.R. 322. Relevant paragraphs of the judgment read as under:
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to re-appreciate 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 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 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.Page 9 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025
NEUTRAL CITATION R/CR.A/2284/2004 JUDGMENT DATED: 02/08/2025 undefined ...11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."
8. In light of the aforesaid discussion and having evaluated the impugned judgment rendered by the competent Court, we do not deem it fit to interfere with the same. Accordingly, the impugned judgment and order of acquittal dated 10.09.2004 rendered by the learned Additional Sessions Judge, Veraval in Sessions Case No.266 of 1999 is confirmed.
9. The present appeal stands dismissed. Record and Proceedings, if any called for, to be sent back to the concerned Trial Court forthwith.
(VAIBHAVI D. NANAVATI,J) (UTKARSH THAKORBHAI DESAI, J) NEHA Page 10 of 10 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Aug 28 2025 Downloaded on : Fri Aug 29 21:49:38 IST 2025