Gujarat High Court
State Of Gujarat vs Chhitiyabhai Kalubhai Rathava on 10 April, 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1158 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
==========================================================
Approved for Reporting Yes No
√
==========================================================
STATE OF GUJARAT
Versus
CHHITIYABHAI KALUBHAI RATHAVA & ORS.
==========================================================
Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
MR VIJAY PATEL for HL PATEL ADVOCATES(2034) for the Opponent(s)/Respondent(s)
No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 10/04/2026
JUDGMENT
(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)
[1.0] This appeal is directed under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code” for
short) against the impugned judgment and order of acquittal dated
20.03.1999 passed by the learned Additional Sessions Judge,
Panchmahals at Godhra in Sessions Case No.59/1997, whereby, the
learned Sessions Court acquitted the respondent – accused for the
offence punishable under Sections 363, 366, 376, 392, 506(2) read
with Section 114 of the Indian Penal Code, 1860 (for short “IPC“).
Page 1 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
[2.0] The following noteworthy facts emerges from the record of the
appeal:
[2.1] The prosecution case in brief is that the complaint is produced
at Exh.23 wherein it is stated that on 26.10.1996, while victim was
sleeping at her home, at that time the accused persons entered in her
residential home and accused No.1 evicted her stating that she had
sold goat and where she has kept the money i.e. Rs.3600/- towards the
same. The victim replied that it was kept in box and accused No.1
opened the box and pocketed the said money. Thereafter, accused
have gagged the victim and thereafter abducted her. Initially, it had
been told by accused No.1 to the victim that they are going to village
Chharada and then they went to Vadodara and then to Savli and after
three days, they went to relative of accused No.1 and there they
stayed. At that time, accused No.1 has taken the ornaments from the
victim and though she demanded back, accused No.1 did not return
the same. Then they stayed at village Savli and at Savli, accuse No.1
had committed rape on the victim for two to three times against the
will and wish of the victim. In this regard, the complaint came to be
filed for the offence under Sections 392, 363, 366, 376, 506(2) read
with Section 114 of the IPC.
[2.2] Therefore, on 21.11.1996, the FIR being I-CR No.235/1996 came
to be registered against the respondents – accused and at the end of
the investigation, charge-sheet was filed against the accused before
the trial Court. Since it was a sessions triable offence, the case was
committed to Sessions Court and ultimately trial was initiated and
charge came to be framed on 07.02.1998 for the offences under
Sections 363, 366, 376, 392 and 506(2) read with Section 114 of the
IPC.
Page 2 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
The accused pleaded not guilty and claimed to be tried.
[2.3] At the trial, in order to bring home the charges levelled against
the accused, the prosecution examined several witnesses and also
relied upon the documentary evidences, which are as under:
LIST OF PROSECUTION WITNESSES
PW Name Exh.No.
No.
1 Jayantilal Simali, Medical Officer 12
2 Victim 22
3 Lalsinh Janabhai Rathva, Father of victim 26
4 Anitaben Lalsinh Rathva, Mother of victim 29
5 Alisinh Janabhai Rathva, Uncle of victim 29
6 Madhavsinh Solanki, PSI, Halol 30LIST OF DOCUMENTARY EVIDENCES
Sr. Name Exh.No.
No.
1 Charge 2
2 Section 313 Statement of accused No.1 3
3 Section 313 Statement of accused No.2 4
4 Section 313 Statement of accused No.3 5
5 Panchnama 7
6 Yadi to PSI, Kalol 8
7 Yadi to Medical Officer 13
8 Medical Certificate of victim 14
9 Medical certificate of accused No.1 15
10 Panchnama of place of offence 16
11 Panchnama – body 17
12 Panchnama of clothes of victim 18
13 Complaint 23
14 Panchnama of place of offence 25
15 Undertaking 27
16 Birth Certificate 31Page 3 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATIONR/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
[2.4] After recording the evidence, further statement of the accused
under Section 313 of the CrPC came to be recorded wherein the
accused pleaded not guilty.
[2.5] Upon hearing the arguments on behalf of the prosecution and
the defence, the learned Trial Court acquitted present respondents –
accused from the charges for offence under Sections 363, 366, 376,
392 and 506(2) read with Section 114 vide impugned judgment and
order of acquittal dated 20.03.1999 in Sessions case No.59/1997, as
mentioned above.
[3.0] Heard learned advocates appearing for the respective parties.
[4.0] Learned APP Ms. Monali Bhatt has submitted that the learned
Trial Court committed an error in appreciating the evidence though
there was ample evidence on record to convict the accused.
[4.1] Ms. Bhatt, learned APP has further submitted that though the
victim was minor at the time of incident, learned trial Court has
committed an error in acquitting the accused. She has further
submitted that it is well settled principle of law that in all the cases,
delay in lodging the complaint is not fatal to the case of prosecution.
Further, the version of victim is enough to record the conviction. The
victim has consistently stated that the incident took place and accused
have committed the offence of rape and she was kidnapped from the
lawful custody and guardianship of her parents. Though document of
age i.e. birth certificate was produced on record and ossification test
is also produced on record and doctor has given the evidence and
though it was proved on record that victim was minor on the date of
incident, the learned trial Court has committed an error in recording
acquittal of the respondents herein – original accused. Therefore, she
Page 4 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
has requested to quash and set aside the impugned judgment and
order of acquittal by allowing the present appeal and to convict the
accused.
[5.0] Learned advocate Mr. Vijay Patel appearing for the respondents
– original accused has supported the impugned Judgment and Order
of acquittal and contended that the learned trial Court has properly
appreciated the evidence and the prosecution has miserably failed to
prove the case against the accused beyond reasonable doubt. Hence,
he has requested to dismiss the appeal as the impugned Judgement
and Order of acquittal does not warrant any interference.
[5.1] He has further submitted that the learned trial Court has not
committed any error in acquitting the accused persons as the
prosecution failed to prove the age of victim on record. Not only that,
if we peruse the complaint, alleged incident took place on 26.10.1996
for which complaint is filed belatedly on 21.11.1996 though prior to
filing of the complaint, settlement between the parties took place on
30.10.1996. Further, he has submitted that if the agreement of
settlement is perused, it clearly reveals that the agreement was
entered into between the parties whereby it was agreed that the
accused persons will not beat or cause any atrocity to the victim girl.
Considering the prevailing custom more particularly in ST Community,
there is nothing wrong if a boy and girl live together prior to marriage
and even no such evidence is produced. No any corroborative piece of
evidence is produced on record and birth certificate is also not
produced and merely the Investigating Officer has collected the
evidence and produced on record however, no evidence is examined in
this regard and except interested witnesses, no one is examined.
Further, he has submitted that if we peruse the complaint and
Page 5 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
evidence produced on record, it clearly reveals that only with a view to
get return of money i.e. Rs.3600/- and ornaments, the offence was
registered. Except this, no any motive for lodgment of complaint is
revealed. Considering the aforesaid fact, he has requested to dismiss
the present appeal.
[6.0] Having heard learned advocate appearing for respective parties
and perusing the record, it appears that it is undisputed and admitted
fact that the alleged incident took place on 26.10.1996 and complaint
is filed on 21.11.1996 belatedly after 25 days without there being any
explanation whatsoever. In order to prove the offence under Section
392 of the IPC, prosecution ought to have proved the robbery and in
order to prove the offence of robbery, prosecution has to prove that
the victim was under fear and with dishonest intention with a view to
commit extortion, putting the victim under fear of instant death or
instant hurt or wrongful restrain alleged offence was committed and
ornament was received by the accused No.1. A bare perusal of the
complaint does not suggest any element qua extortion or threat to
put the victim under fear of instant death or instant hurt or wrongful
confinement or restraint is revealed from the evidence or bare perusal
of the complaint itself. Hence, learned Sessions Judge has not
committed any error in exonerating the accused persons for the
offence under Section 392 of the IPC as the offence of robbery is not
proved on the record and no any such ornament is also recovered
during the investigation.
[6.1] Further, so far as offence under Sections 363 and 366 of the IPC
is concerned, in order to prove the said offence, prosecution has
examined the Medical Officer Jayantilal Simali at Exh.12 wherein he
has stated that the victim in her history given before him had stated
Page 6 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
that she had travelled in Chharada – Kalol bus from Vadodara – Bhayli
Bus-stand and stayed for three days at Vejalpur means she had
travelled through public transportation. The doctor has examined the
victim and has opined negative so far as sexual intercourse upon
victim is concerned but determined her age at approximately 15 years
wherein she has stated that she stayed with accused No.1 for six days.
The said fact reveals from the record which transpires that she stayed
willingly for six days. Then, on 30.10.1996, the victim came back to her
home and in front of panchas and leaders of society, settlement took
place between accused and parents of victim and it was decided that
the accused will not cause any atrocity or will not beat the victim since
incident came to knowledge on 30.10.1996. Thereafter, after 25 days,
complaint is filed. No any proof of age is produced on record.
[6.2] In order to prove the offence under Sections 363 and 366 of the
IPC, the prosecution ought to have produced on record and proved
that the victim was minor and she was kidnapped or abducted from
the lawful guardianship of her parents. No any evidence of enticement
is produced on record and no any age is proved on record. If we peruse
the complaint and evidence recorded by the learned trial Court, it
appears that there are improvements and material contradictions and
such material contradictions does not inspire confidence of the Court
and learned trial Court found that the evidence of victim is unreliable
and untrustworthy and is not corroborated by the medical evidence. It
is needless to say that the evidence of victim may be considered to
record the conviction under Section 376of the IPC but such evidence is
required to inspire confidence. Herein, no corroborative piece of
evidence is produced on record and the evidence tendered by the
victim does not inspire confidence. Considering the agreement
produced at Exh.27, which was executed on 30.10.1996 and
Page 7 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
undertaking given by the father, it was decided that the accused shall
not harass the victim. If the victim was kidnapped then there was no
occasion or necessity to execute such type of undertaking. Further, in
absence of any evidence, ossification test was conducted and birth
certificate is straightway produced on record but no witness is
examined to prove the age and the said evidence remained
uncorroborated. The Doctor is examined at Exh.12 wherein he has
stated the age of victim to be 15 years approximately but is nothing
under Section 45 of the Indian Evidence Act which is required to be
proved and is not a conclusive proof. Further, birth certificate
produced on record is collected by the Investigating Officer but entry
made in the said birth register of Panchayat is not proved on record. In
this regard, reference is required to be made to the decision of the
Hon’ble Supreme Court in the case of Birad Mal Singhvi vs. Anand
Purohit reported in (1988) Supp SCC 604 wherein the Hon’ble
Supreme Court explained the legal proposition and laid down therein
that the entry regarding the date of birth contained in the register has
no probative value, if no person on whose information date of birth of
candidate or person was mentioned in the record is required to be
examined. The entry contained in admission form or in the register
must be shown to be made on the basis of information given by the
police or person having special knowledge about the birth. In this
regard, reference is required to be made to the decision of the
Hon’ble Supreme Court in the case of Madan Mohan Singh & Ors vs
Rajni Kant & Anr. reported in (2010) 9 SCC 209 as well as in the case
of P. Yuvaprakash vs State Rep. By Inspector Of Police [2023 INSC
676].
[6.3] Herein, the vital piece of evidence about proof of age is missing
and no evidence was placed before the learned Sessions Judge as to
Page 8 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
on whose information the birth date was entered in the register.
Neither the parents nor any person having special knowledge about
the date of birth and person concerned were examined about the said
entry. In view of above, mere production of such document is not
enough or exhibiting such document without proof of content is not
reliable. Hence, the prosecution failed to prove the basic and
fundamental fact about the age of victim and that the victim was
minor as on the date of incident and she was abducted or kidnapped
from the lawful custody or guardianship of her parents. Prosecution
has also not examined any independent witness and all interested
witnesses are examined and there is not an iota of evidence against
accused Nos.2 and 3 and whatever allegations are levelled qua
committing the offence of rape is against accused No.1 and that too
without any corroborative and emerging material contradictions from
the evidence and version of prosecutrix / victim remained
uncorroborated.
[6.4] Though there is no bar to refer to the record based on
uncorroborated testimony of the victim but as a rule of credence in
such cases and inordinate delay, Court has to consider the evidence of
prosecutrix / victim with due care and caution. In such circumstances,
corroboration is required and if such testimony is corroborated with
scientific evidence which inspires confidence of the Court. As the
witnesses examined by prosecution are not found to be “sterling
witnesses”, whose version inspire confidence and withstand the
scrutiny even without independent corroboration then and then only
conviction could have been recorded. Herein, witnesses are found
unreliable and does not inspire confidence and hence, in view of the
decision of the Hon’ble Supreme Court in the case of Rai Sandeep @
Deepu vs State Of Nct Of Delhi reported in (2012)8 SCC 21, in
Page 9 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
absence of any independent witnesses, learned Sessions Judge has
not committed any error in acquitting the accused. It is also apposite
to refer to the decision of the Hon’ble Supreme Court in the case of
Nirmal Premkumar & Anr. vs. State Rep. By Inspector of Police
reported in 2024 INSC 193 as well as in the case of State (GNCT of
Delhi) vs. Vipin @ Lalla rendered in Criminal Appeal No.94 of 2025.
[6.5] In view of aforesaid discussion, the evidence of victim (PW-2)
does not inspire any confidence and parents of victim PW-3 and PW-4
and uncle of victim (PW-5) are also hearsay witnesses having no
personal knowledge and are interested witnesses and thus, no any
independent witnesses are examined and there is no any statement
which corroborates that the victim was kidnapped or kept after the
alleged incident. Thus, the prosecution has failed to prove the case
beyond all reasonable doubts and prosecution cannot take advantage
of witnesses of defence and there is no any recovery qua ornament
and even panch witnesses have also not supported the case of
prosecution and age of victim is not proved on the record and
complaint is filed with inordinate delay and witnesses are found
unreliable. Considering the aforesaid fact, learned Sessions Judge has
not committed any error and once two views are possible, then
benefit always goes in favor of the accused. In absence of any material
or without there being any corroborative evidence, it is highly unsafe
to record the conviction of the respondents – accused. In this regard,
reference is required to be made to the decision of the Hon’ble
Supreme Court in the case of Suresh vs. State Represented by
Inspector of Police reported in 2025 INSC 318.
[6.6] Further, in the case of Deepak Vaishnav vs. State of
Chhattisgarh [Criminal Appeal No.119 of 2024 dated 09.04.2026,
Page 10 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
the Chhattisgarh High Court acquitted the accused as the High Court
found significant gaps in the evidence. It noted that the girl had been
in contact with the accused and had voluntarily accompanied him.
Importantly, the Court emphasized that there was no evidence
showing that the accused had “taken” or “enticed” her away from
lawful guardianship, which is a key ingredient for establishing
kidnapping under Section 361 IPC. Relying on the Supreme Court’s
ruling in the case of S. Varadarajan vs. State of Madras reported in
AIR 1965 (SC) 942, the Bench observed that mere accompaniment by
a minor, without inducement or persuasion by the accused, does not
amount to kidnapping. The Court also scrutinized the evidence related
to the alleged sexual offence. While that they had the medical
examination of victim and evidence created reasonable doubt in the
prosecution’s case, the Court held that the charges under the POCSO
Act were not proved beyond reasonable doubt and evidence led by
prosecution does not inspire the confidence of the Court to convict or
hold the accused guilty.
[7.0] Scope and interference by the appellate Court in acquittal
appeal is very limited. The Hon’ble Supreme Court has discussed the
scope and interference in acquittal appeal in the case of Sheo Swarup
v. King Emperor reported in AIR 1934 PC 227 and held as under:-
“While dealing with an appeal against acquittal, the High Court should
and will always give proper weight and consideration to such matters
as-
(1) the views of the trial Judge as to the credibility of the witnesses;
(2) the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been
acquitted at his trial,(3) the right of the accused to the benefit of any doubt, and the
Page 11 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATIONR/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
slowness of an appellate court in disturbing a finding of fact arrived at
by a Judge who had the advantage of seeing the witnesses.”
[7.1] Further, considering the law laid down in the case of Babu
Sahebagouda Rudragoudar v. State of Karnataka reported in 2024
SCC OnLine SC 561, every criminal trial starts with general
presumption and one of the cardinal principle of criminal
jurisprudence is that, there is a presumption of innocence in favour of
the accused, unless proven guilty. Burden of proving the case of the
prosecution always rests on the shoulder of the prosecution. As a
consequence, the onus on the prosecution becomes more
burdensome as there is a double presumption of innocence, which
gathers stregnth before the appellate Court
[7.2] It would be further apposite to refer the decision of the Hon’ble
Apex Court in case of Jafarudheen v. State of Kerala reported in
(2022) 8 SCC 440 wherein it has been held as under:
“While dealing with an appeal against acquittal by invoking Section 378
CrPC, the appellate court has to consider whether the trial court’s view
can be termed as a possible one, particularly when evidence on record
has been analysed The reason is that an order of acquittal adds up to
the presumption of innocence in favour of the accused. Thus, the
appellate court has to be relatively slow in reversing the order of the
trial court rendering acquittal. Therefore, the presumption in favour of
the accused does not get weakened but only strengthened. Such a
double presumption that ensures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal parameters”
Considering the cardinal principles of criminal jurisprudence,
until and unless offence is proved by the prosecution against the
accused persons beyond all reasonable doubt, the accused is innocent.
It appears that prosecution has failed to produce or adduce any
clinching and material evidence of sterling quality which can connect
Page 12 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026
NEUTRAL CITATION
R/CR.A/1158/1999 JUDGMENT DATED: 10/04/2026
undefined
the accused person with the alleged offence.
[8.0] In view of the above, the learned Sessions Judge has not
committed any error in recording the acquittal and the prosecution
has failed to prove the case against the accused person beyond all
reasonable doubt under Sections 363, 366, 376, 392, 506(2) read with
Section 114 of the IPC.
[9.0] In wake of aforesaid conspectus, present appeal fails and is
hereby dismissed. The impugned judgment and order of acquittal
dated 20.03.1999 passed by the learned Additional Sessions Judge,
Panchmahals at Godhra in Sessions Case No.59/1997 stands
confirmed.
Bail bonds, if any, stands discharged. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Sd/-
(D.N.RAY, J.)
Ajay
Page 13 of 13
Uploaded by MR. AJAY C MENON(HC00939) on Mon Apr 13 2026 Downloaded on : Mon Apr 13 21:34:57 IST 2026