Gujarat High Court
State Of Gujarat vs Parasbhai Kanubhai Charola on 1 April, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 266 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
PARASBHAI KANUBHAI CHAROLA & ORS.
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Appearance:
MS MONALI H.BHATT, APP for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 01/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is filed by the State of Gujarat against judgment and order of acquittal dated 23.08.2024 passed by the Special Judge, POCSO Court & 10th Additional District Judge, Surat in Special (POCSO) Case No.125 of 2021. By the said judgment, the Special Court acquitted the respondents-accused for offences under Sections 363, 366, 376(2)(N), 354, 354(A)(1)(1), 354(A)(1)(2), 354(2), 354(B), 354(D)(1)(1), 376(2)(J), 506(1) and 34 of the Indian Penal Code and Sections 3(A) (C), 4, 5(L), 5(J)(2), 6, 7, Page 1 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined 8, 9(L), 10, 16 and 17 of the POCSO Act.
2. By order dated 03.02.2025, while the Records and Proceedings was called for, the Court recorded that there appears to be overwhelming evidence in support of the defence to the extent that the parents of the prosecutrix have not supported the case of the prosecution and even the victim herself, though not declared hostile, has not supported the case of prosecution.
3. Learned APP for the appellant-State submitted that the judgment and order of the Special Court is based on inferences and also on presumptions. It is submitted that the Special Court has failed to appreciate cumulative effect of the evidence led by the prosecution in support of its case.
3.1 It is submitted that the date of birth of the victim was 02.03.2004 and the incident took place on 02.02.2021 and therefore, she was less than 17 years of age at the time of incident. It is submitted that the victim, PW No.5 in her deposition at Exh.70 has clearly deposed that the respondents were staying in the same building as that of the victim and accused No.1-Paras Charola abducted her with help of accused Nos.2 and 3 and taken her to various places like Ahmedabad, Junagadh, Keshod, Rajkot, Amreli, Chalala, Surat, etc. and repeatedly committed sexual intercourse with her against her will and made her pregnant, which was later Page 2 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined on terminated by the order of the Court. Thus, the victim has clearly supported the case of prosecution. 3.2 It is submitted that mother of the victim, PW No.3, Exh.57 in her deposition has clearly stated that victim was traced after a period of more than one and half months. It is submitted that the mother in her deposition has further stated that accused No.1-Paras gave the victim assurance to marry her and committed sexual intercourse and ultimately did not marry her. 3.3 It is submitted that the Special Court has also not taken into consideration the medical evidence, wherein it is clearly coming out that sexual intercourse was committed to the victim. 3.4 It is submitted that as the victim was minor at the time of incident, as per various judgments of the Supreme Court, her consent becomes irrelevant.
4. As stated hereinabove, R & P was called for under order dated 03.02.2025, which was received. The Court has perused R & P with the help of learned APP.
5. From the record it appears that it is a case where the mother of the victim i.e. informant had filed FIR on 09/02/2021, wherein it is stated that on 02/02/2021, she was at home with her family at evening and after taking meal at night, she and her family Page 3 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined were sleeping at home and after midnight on 03/08/2021 at 4:30 a.m., her mother-in-law was awake and her victim daughter was not found in the bed and after searching in the house, victim daughter was also not found in the house. Thereafter, they have tried to open main gate of house, but was closed from outside. Hence, her husband had called his friend to open the door. Thereafter, they called their relatives to search victim daughter. They also searched her victim daughter in the society and also searched in the nearby area, but her victim daughter was not found. After coming home, she has found one note below victim's pillow in which, Mobile No.9512297555 was written and it was found that the mobile number is that of the accused, residing on the 2nd floor of their building. After searching, the accused was also not found at his house. After asking the Watchman, found that the accused was outside in Eco Four Wheeler car. They were busy searching for victim daughter in the night and at 3:00 a.m., brother and brother-in-law of the accused also left their house and locked it. Thereafter, on 04.02.2021, her relative made phone call on accused mobile number and asked about her victim daughter, but the accused denied of having any knowledge about the victim daughter. Thereafter, on 05.02.2021, her victim daughter made phone call from unknown number and stated that she is now at Ahmedabad and sim card, from which she was calling was given to her by the accused and at the time, she left home, the accused was Page 4 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined also left his house in four wheeler, so they should not call accused and his family members keeping any suspicion. When the informant asked her victim daughter, where she is now and with whom, her victim daughter did not tell her and disconnected the phone and after that, victim daughter was not contactable. Therefore, the informant has filed complaint of her victim daughter in the police station against the accused and other unknown person, who lured and abducted her victim daughter from her legal guardianship, with intention to do offensive act with her victim daughter and kidnapped victim daughter. Such, complaint was lodged at Olpad Police Station against accused U/s.363 of I.P.C.
6. The incident is with regard to two couples leaving their homes, of which, respondents no.2 and 3 are the one couple- husband and wife, whereas the respondent no.1 and the victim were another couple.
7. During trial, the prosecution examined following witnesses:-
Sr. Name of the witness PW Exh.
No. No. No.
1 Deposition of the mother of the 3 57
victim
2 Deposition of the father of the 4 68
victim
3 Deposition of the victim 5 70
4 Deposition of Dr.Aparana Dipakbhai 6 88
Chaudhary
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5 Deposition of Dr.Vibhuti Kanubhai 7 97
Chaudhary
6 Deposition of Dr.Jasmin Vinaybhai 8 101
Chaudhary
7 Deposition of Dr.Nilesh Jethabhai 11 113
Chavda
8 Deposition of Dr.Vibhuti Kanubhai 19 205
Chaudhary
9 Rajeshbhai Jagubhai Patel 1 50
10 Jayantibhai Maganbhai Rathod 2 54
11 Priyanka Dipakbhai Patel 9 106
12 Ketangiri Rameshgiri Goswami 12 114
13 Pritesh Himmatbhai Vada 13 128
14 Dipakbhai Shantibhai Vadher 14 134
15 Amrutlal Mudajibhai Chaniyara 15 138
16 Ashvinbhai Anilbhai Gamit 18 194
17 Shaktisinh Narubhai Gohil 10 107
18 Ketan Rameshbhai Chaudhary 16 146
19 Ashokbhai Bhurjibhai Mori 17 166
7.1 Through the aforesaid witnesses, the prosecution
brought on record the following documentary evidence:-
Sr. Name of the witness Exh.
No. No.
1 Original Panchnama of place of incident 48
2 Original arrest panchname of accused 51
3 Original panchnama of collecting cloths of 52
victim
4 Original arrest panchname of accused 53
5 Original F.I.R. 58
6 Original birth certificate of victim 57
7 Copy of Adhar-card of victim 60
8 Original electricity bill of accused's house 61
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9 Original statement of victim under 71
Sec.164 of Cr.P.C.
10 Original discharge card of victim 89
11 Original MLC of victim 90
12 Original discharge card of victim at the 91
time of abortion
13 Original medical certificate of victim's 92
abortion
14 Original history of victim in Gujarati 93
15 Original letter for issuing medical 94
certificate of victim
16 Original discharge summary of victim 95
17 Original MLC of victim 98
18 Original letter to issue medical certificate 99
of victim
19 Original medical examination report of 102
accused
20 Original letter to issued medical 103
certificate of accused
21 Computerized station diary entry 108
22 Certified copy of birth certificate T129
23 Original suchipatra 147
24 CDR of accused's mobile number 148
25 CDR of victim's mobile number 149
26 Copy of birth certificate of victim 167
27 Original medical examination of body 168
status of victim and ac-
caused
28 Original forwarding letter of FSL 169
regarding muddamal
29 Original receipt 170
30 Original forwarding letter 171
31 Original FSL receipt 172
32 Original report of addition of section 173
33 Original Biological report 174
34 Original Panch slip 175
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35 Original Panch slip 176
36 Original FSL forwarding letter 177
37 Original DNA report 178
38 Original Panch slip 179
39 Original Panch slip 180
40 Original letter to MO to issued certificate 206
of DNA
41 Original DNA profiling report of accused 207
42 Original OPD receipt of accused 208
43 Original letter to handover custody of 209
accused
8. The Court has perused the evidence of victim, PW No.5, Exh.70. It appears that various questions were put forth to her in her chief, to which she has replied as under:-
"30.05.2023 Question: What incident happened with you?
Answer: We had eloped and I was subjected forceful intercourse and I was taken away by telling lie.
Question: How you got acquainted with the persons who took you away?
Answer: Kishan and Mittal were already residing on the second floor above my floor in Shiv Residency and Paras came to stay there later on and in this manner, I got acquainted with these persons.
Question: What was the relation between Kishan, Mittal and Paras?Page 8 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025
NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined Answer: Paras is elder brother of Kishan and thus, he is the real elder brother sibling and Mittal is wife of Kishan.
Question: After you got acquainted with these persons, what all things happened with you?
Answer: We both happened to meet each other after I got acquainted with him.
Question: We both means who two?
Answer: We both means I and Paras.
Question: What happened ahead?
Answer: We both happened to elope with the help of
Kishan and Mittal.
Question: Then, what happened next?
Answer: We fled from here, went to the house of
sister of Paras and stayed there overnight. I stayed alone. Paras left to his home after leaving me there.
Question: Then?
Answer: Thereafter, in the next day in the morning,
Mittal and Kishan dropped me at the house of friend of Kishan.
Question: Then?
Answer: Thereafter, Mittal took me to Ahmedabad
from there and from Ahmedabad to Delhi.
Page 9 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined Question: Then? Answer: I was kept there in Delhi for two to three days. Question: Then? Answer: Thereafter, Mittal brought me back to Junagadh, Keshod. Question: To whose house at Keshod you were brought? Answer: I was brought to Keshod at the house of Kishan's friend Nandlalbhai. Question: What happened further? Answer: We all the four of us gathered there, which
included myself, Kishan, Mittal and Paras.
Question: Then?
Answer: Thereafter, Kishan and Mittal compelled me
to forcibly record video against my parents.
Question: Then?
Answer: Thereafter, Paras took me to Rajkot.
Question: Then?
Answer: We stayed there for two to three days.
Question: Where were you taken from there?
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Answer: From there, we went to Chalala near
Amreli.
Question: At whose house at Chalala you went?
Answer: At Chalala, we went to the house of uncle of
Paras and Paras had taken me there fraudulently by telling lie and he told me that I do not have any one else. I did not know that he had eloped with two other girls earlier and case was also filed against him. Kishan and Mittal were also indulging in such practice and they used to help him to elope with the girls and I was taken away with him fraudulently and I was not knowing that he eloped with the girls earlier. After returning to home, the said persons told me that we have taken away the girls in this manner.
Question: Apart from the facts stated above, what else happened with you?
Answer: He forcefully committed intercourse with me at Surat.
Question: He means who?
Answer: Paras.
Question: Where was the intercourse made?
Answer: He was staying on Second Floor and in his
house No.202, he forcefully committed intercourse with me and I had shown the place in the house to the police where the intercourse was committed.Page 11 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025
NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined Question: Apart from this, had anything else happened anywhere?
Answer: At first, Paras had made intercourse with me at Surat and thereafter, we went to Keshod, where Paras made intercourse with me and thereafter, we went to Rajkot from there and Paras made intercourse with me. Intercourse was not committed with me anywhere else. We went Chalala and police arrived there.
Question: What happened after police arrived there?
Answer: After police arrived there, we were brought at Olpad Police Station and my statement as well as statements of all the persons were recorded there as to what had happened with me."
8.1 The victim was also cross-examined, wherein inter alia she has stated as under:-
"30.05.2023 It is true that presently, I am of adult age, i.e. above 18 years. Witness willingly states that 19 years completed and in the third month, I attained 20 th year and I have completed nineteen years.
Question: Are you married?
Answer: Presently, I am married.
Question: Presently, where do you stay with your
husband?
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Answer: Velanja.
Question: Do you have any child at present?
Answer: Yes.
Question: What is the age of child?
Answer: The child is four months old.
Question: Is it your first marriage or second
marriage?
Answer: It is my first marriage which means it is my
first marriage as per rituals. However, the witness willingly states that before this marriage, Paras married me forcefully and filled vermilion on my sinsiput.
Question: Are you able to state the date of the so- called marriage that you are stating to have solemnized with Paras by filling vermilion?
Answer: I do not know the date but when we went to Rajkot from Junagadh and from there, we went to Dhari at the house of Paras and there, Paras filled vermilion on my sinsiput at his house.
Question: You say you went to Junagadh, but you have not stated the exact date in your police statement as to when you went to Junagadh.
Answer: I do not remember the date when we went to Junagadh. I had not dictated the police as to on which date we went to Junagadh and seeing my statement dated 23/03/2021, I state that the date on which I went to Junagadh is not mentioned therein.Page 13 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025
NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined Question: Entry of the visitors to the society is made in the register kept on the main gate of the society. Answer: Entry of the visitors who came to the society between 12 in the midnight to 6 in the morning is made in the register and entry of the visitors is not made in the register in the daytime.
It is true that main gate of the society is kept closed from 12 of midnight till 6 in the morning. It is true that I do not know if any visitor comes in or goes out of the society in the midnight. My flat is of one BHK, which comprises of one room, hall and kitchen. It is true that my parents sleep in one bedroom of the flat. Witness willingly states that there is only one bedroom. At the time of alleged incident, in the living room i.e. in the hall of my flat I, my brother and my grandmother who visited us were sleeping. It is true that the condition of my flat is such that even the slightest of noise or shouting takes place in my flat during the night, it would make the people of my flat means people of my house awake. It is true that there is only one common bathroom between my bedroom and my hall.
Question: You left your flat discretely in such a manner that no one may know and applied the latches from outside?
Answer: Kishan applied latches from outside and I left my flat discretely in such a manner that no one may know. Witness further states that Paras made me sit in Eco car and when we left the society, entry in this regard was not made before the watchman and Paras told the watchman that I am going to collect a parcel Page 14 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined and returning in a while.
It is true that when I left my house, I myself had opened the latches of my house from inside. Witness willingly states that Paras called me and therefore, I opened the latch and once I got out, he took me away with him.
It is true that the accused had not knocked the door of my house at that time from outside. Witness willingly states that Paras told me that you come out in the night, I want your two minutes and I had no knowledge that by telling lie, Paras wanted to take me away. Paras cheated me and I did not know as to what type of work Paras was doing and the said persons used to sell clothes while they were staying on the second floor at Surat.
It is true that I did not use to keep mobile phone at the time of so-called incident. Witness willingly states that I did not have mobile phone. They were making phone calls to my parents from the phone of Paras and that Paras, Kishan and Mittal, all three had phone and they used to make phone calls to my parents from different phones. It is true that I had not received any phone call from any accused on the day of so-called incident. Witness willingly states that Paras told me between 7 to
9 on that day that you come out, I want to meet you and Paras gave me mobile number.
Date: 08.06.2023, Exh.70 continuation of deposition of the victim.
Special POCSO Case No.125/2021 Deposition of PW No.5 Page 15 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined
8) It is true that I cannot state the date as to exactly on which date I went to Junagadh and as to exactly on which date I went to Keshod and as to exactly on which date I went to Rajkot and as to exactly on which date I went to Chalala and as to exactly on which date I went to Amreli. It is true that I did not happen to go to Delhi, Ahmedabad, Junagadh, Keshod, Amreli, Rajkot, Chalala alongwith police.
9) It is true that there is very long distance between Ahmedabad to Rajkot. It is true that a number of areas come across while going from Ahmedabad to Rajkot and there remains movement of vehicles on the road and there are residential houses, carts - stalls on the way and there are also hotels on the highway for snacks. I do not know that it takes four to five hours in Bus to go to Rajkot from Ahmedabad.
10) It is true that there is a long distance between Rajkot and Junagadh and there are many residential houses, village, areas, toll-plazas between Rajkot and Junagadh.
11) The distance from Junagadh to Keshod is of about one hour and there is also long distance to go from Junagadh to Amreli, Chalala.
12) It is true that I had not stated before the police as to in which vehicle I went to Ahmedabad, Delhi, Rajkot, Amreli, Keshod, Junagadh, Chalala and I have not stated to the police as to exactly in which village, which place, what time and on which date I reached. It is true Page 16 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined that such thing has not happened that I had kept on wearing same clothes at all these places. It is true that my clothes were being washed on daily basis during the duration of the so-called incident. It is true that I could watch the people wherever I went and I have not happened to file any complaint against any of the persons of such areas.
After recess date: 08.06.2023, Exh.70 continuation of deposition of the victim.
Special POCSO Case No.125/2021 Deposition of PW No.5
13) It is true that I myself was doing all the tasks of daily routine after waking up in the morning. It is true that I and the accused Paras came to know each other and we both had developed a love affair.
Question: Due to love affair between both of you, you and Paras used to talk also.
Answer: We talked twice or thrice.
Question: You and Paras used to send message to
each other on phone also.
Answer: Paras used to send me message but I did
not send message to Paras.
It is true that I had also not stated the fact about receiving of messages to my parents. Witness willingly stated that I got afraid that my parent would rebuke me.
14) It is true that I had not stated the fact to the Page 17 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined police about the person with whom I went to Delhi and the details of the vehicle in which I went there. Witness willingly states that I had stated the details of the person with whom I went and I told the police the detail that I went there with Mittal. It is true that I did not happen to go to Delhi with Paras. It is true that I had not stated the details to the police as to in which vehicle we went to Keshod, Amreli and Junagadh. It is true that it has not happened to me or the accused persons to disclose any details to the people of the surrounding areas wherever I had gone. It is true that police stations have been kept in all cities and villages of India in order to maintain security." 8.2 The victim has also deposed as under:-
"Date: 14.07.2023, Exh.70 continuation of deposition of the victim.
Special POCSO Case No.125/2021 Deposition of PW No.5
23) Seeing the document translated in Gujarati of my history before the doctor of Mark-80/1, I say that it is true that I had not stated to the doctor in history that 'We both happened to elope with the help of Kishan and Mittal' and 'fleeing from here, we went to the house of sister of Paras and stayed there overnight. I stayed alone. Paras left to his home after leaving me there' and 'Thereafter, in the next day in the morning, Mittal and Kishan dropped me at the house of friend of Kishan' and 'Thereafter, Mittal took me to Ahmedabad from there and from Ahmedabad to Delhi' and 'I was Page 18 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined kept there in Delhi for two to three days' and 'Thereafter, Mittal brought me back to Junagadh, Keshod' and 'I was brought to Keshod at the house of Kishan's friend Nandlalbhai' and 'Thereafter, Kishan and Mittal compelled me to forcibly record video against my parents' and 'We stayed there for two to three days' and 'From there, we went to Chalala near Amreli' and 'At Chalala, we went to the house of uncle of Paras and Paras had taken me there fraudulently by telling lie and he told me that I do not have any one else. I did not know that he had eloped with two other girls earlier and case was also filed against him. Kishan and Mittal were also indulging in such practice and they used to help him to elope with the girls and I was taken away with him fraudulently and I was not knowing that he eloped with the girls earlier. After returning to home, the said persons told me that we have taken away the girls in this manner' and 'Paras had forcefully committed intercourse with me at Surat' and 'He was staying on Second Floor and in his house No.202, he forcefully committed intercourse with me and I had shown the place in the house to the police where intercourse was committed' and 'Thereafter, we went to Keshod, where Paras made intercourse with me and thereafter, we went to Rajkot from there and Paras made intercourse with me' and 'Before this marriage, Paras married me forcefully and filled vermilion on my sinsiput' and 'We went to Rajkot from Junagadh and from there, we went to Dhari at the house of Paras and there, Paras filled vermilion on my sinsiput at his house' and 'Paras made me sit in Eco car and when we Page 19 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined left the society, entry in this regard was not made before the watchman and Paras told the watchman that I am going to collect a parcel and returning in a while' and 'Paras called me and therefore, I opened the latch and once I got out, he took me away with him' and 'Paras told me that you come out in the night, I want your two minutes and I had no knowledge that by telling lie, Paras wanted to take me away. Paras cheated me and I did not know as to what type of work Paras was doing and the said persons used to sell clothes while they were staying on the second floor at Surat' and 'They were making phone calls to my parents from the phone of Paras and that Paras, Kishan and Mittal, all three had phone and they used to make phone calls to my parents from different phones. Paras told me between 7 to 9 on that day that you come out, I want to meet you and Paras gave me mobile number' and 'Paras made me sleep under his seat' and 'there would not be so much space to sleep under the rear seat, but I was told to sleep in that much space where we can keep bags and I was told not to speak' and 'I had not stated any such fact that the accused committed intercourse with me without my consent, against my will and forcefully'."
9. From the evidence of the victim-PW No.5, Exh.70 herself, it is coming out that the relationship in so far as eloping with another couple was consensual and she had agreed to go along with the respondent no.2 in company of the respondents no.3 and 4. On perusal of her evidence as PW No.5 (Ex. 70), particularly Page 20 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined the answer given by the victim in cross examination, the court is unable to consider the victim as a wholly reliable witness, on whose deposition the conviction would be based. Thereafter, it is for the court to find any corroborative evidence to the deposition of victim or medical evidence as well as evidence of other witnesses. It is coming on record that PW No. 4- the father of the victim and PW No. 3- the mother of the victim have not supported the case of the prosecution.
10. The Court also finds that mother of the victim-PW No.3, Exh.57 and father of the victim-PW No.4, Exh.68 have not supported the case of prosecution and they have been declared hostile. The other witnesses, who are relatives of the victim, have also not supported the case of the prosecution so far the commission of offence is concerned.
11. The court has, thereafter, perused the medical evidence wherein PW No. 7-first treating doctor, who has been examined vide Ex.97, who has recorded in the history given by the victim about their relationship of having eloped alongwith another couple and having moved around Delhi, Surat etc., while they were eloped together. This witness has also referred the pregnancy test, which is positive and thereafter, the evidence of PW No. 11 (Ex.
113) Doctor Nilesh Jethabhai Chavda, who has also treated the Page 21 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined victim and has deposed that there were no sign of any severe injury on the vital part of the body. However, the termination test having been found positive, steps were taken in accordance with Medical Termination of Pregnancy Act and while doing so, he preserved DNA for the purpose of investigation.
12. The Court has referred to Ex. 178 which is the report of the FSL wherein the blood samples drawn from the victim were lebelled as "K" whereas the blood samples drawn from the accused no.1 were identified as "M". The ultimate analysis by the FSL would read as under:-
"1. The DNA profiling pattern obtained from Ex.
K/4(Blood) & Ex. M/2 (Blood) are preserved in the division.
2. The similar STR patterns were obtained from Ex.K/4 (Blood-EDTA) & Ex. K/5 (Products of conception). Hence no opinion could be offered on the comparison of Ex. K/5 (Products of conception) with DNA profiling of Ex. K/4 (Blood) & Ex. M/2 (Blood)."
13. In the opinion of the Court, though victim has referred the relation with the respondent No.1 and that age of the victim being less than 18 years, however, the deposition itself cannot be ground for coming to the conclusion that there was any forceful Page 22 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined sexual intercourse. Moreover, the medical reports and evidence placed on record in the deposition of victim, the FSL analysis did not corroborate the deposition of the victim.
14. The victim is not falling in the category of reliable witness and there not being sufficient corroboration, the Court is not inclined to interfere with the impugned judgment and order. Moreover, the evidence is not sufficient to convict only on the basis of the deposition of the victim, and therefore, it is more so when it is the question of overturning the conclusion and findings given by the Special Court while recording the acquittal.
15. The Apex Court in case of Mallapa and others Vs. State of Kar 2024 (3) SCC, 544 on the point of scope of an appeal against acquittal.
35. So far as the question of independent appreciation of evidence by the High Court is concerned, be it noted that the High Court was fully empowered to do so, but in doing so, it ought to have appreciated the evidence in a thorough manner. In the present case, the High Court has not done so. Even the aspects discussed by the Trial Court have not been fully addressed and the High Court merely relied on a limited set of facts to arrive at a finding. The factors which raised reasonable doubts in the case of the prosecution were ignored by the High Court. For instance, the contradictions pertaining to time, which Page 23 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined were carefully analyzed by the Trial Court, were not examined by the High Court at all. Similarly, the contradictions qua the nature of injuries were also not discussed. In an appeal, as much as in a trial, appreciation of evidence essentially requires a holistic view and not a myopic view. Appreciation of evidence requires sifting and weighing of material facts against each other and a conclusion of guilt could be arrived at only when the entire set of facts, lined together, points towards the only conclusion of guilt. Appreciation of partial evidence is no appreciation at all, and is bound to lead to absurd results. A word of caution in this regard was sounded by this Court in Sanwat Singh v. State of Rajasthan 9 , wherein it was observed thus:
"9. The foregoing discussion yields the following results: (1) An appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) The principles laid down in Sheo Swarup case [LR 61 IA 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) The different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons", are not intended to curtail the undoubted power of a appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on Page 24 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."(emphasis supplied)
36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive-inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;Page 25 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025
NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
16. In case of Bhaskarrao & Ors. Vs. State of Maharashtra, reported in 2018 (6) SCC 591, the Apex Court In case of Bhaskar Rao and Another (supra), in para-23, the Apex Court has observed as under:-
"23. Before we proceed to analysis of the case, we must first focus on the aspect concerning the standard the High Court has to apply, while hearing a case against an acquittal order of the trial court. In the case on hand, the trial court, followed by a full-edged trial, comes to the conclusion and by cogent reasoning acquits the accused. In such a case the appellate Court is further burdened with the task of rearming the innocence of the accused. In such cases, the appellate Court is expected to be very cautious and its interference with the order of acquittal is called for only when there are compelling reasons and substantial grounds. In other words, the High Court has full power to review the evidence upon which an order of acquittal is founded, yet the presumption of innocence of the accused being further reinforced by his acquittal by the trial Court, the findings of that Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and Page 26 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025 NEUTRAL CITATION R/CR.A/266/2025 JUDGMENT DATED: 01/04/2025 undefined compelling reasons [refer Surajpal Singh & Ors. v. The State, 1952 CriLJ 331]."
17. In view of the aforesaid discussion, the Court is not inclined to interfere with the impugned judgment and order. The appeal therefore deserves to be and is hereby dismissed. R&P to be sent back to the concerned trial Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SHITOLE Page 27 of 27 Uploaded by SHITOLE MANISH P.(HC00188) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:25:29 IST 2025