Gujarat High Court
Kantibhai Arjanbhai Bharvad vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
R/CR.A/438/2020 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 438 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
✔
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KANTIBHAI ARJANBHAI BHARVAD
Versus
STATE OF GUJARAT
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Appearance:
MR. KIRTAN MISTRY for the Appellant(s) No. 1
MR. HARSHRAJSINH S VAGHELA(8538) for the Appellant(s) No. 1
MR. HEMANG S BHARWAD(8288) for the Appellant(s) No. 1
MR. CHIRAG B UPADHYAY(6735) for the Appellant(s) No. 1
MR. TIRTHRAJ PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 17/07/2025
ORAL JUDGMENT
1. The present appeal has been preferred by the appellant –
convict (i.e. the original accused) under Section 374 of the Code
of Criminal Procedure, 1973, and is directed against the
judgment and order of conviction and sentence dated
01.02.2020 passed by the learned Special (POCSO) Judge,
Aravalli at Modasa, in Special (POCSO) Case No.28 of 2018.
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2. By the aforesaid judgment and order of conviction, the
present appellant-accused has been held guilty and convicted for
the offence punishable under Section 376 of the Indian Penal
Code, and consequently, he has been sentenced to undergo
rigorous imprisonment for ten years along along with a fine of
Rs.10,000=00, and in making default of payment of fine, to
undergo further simple imprisonment for six months. The trial
court, however, acquitted the present appellant-accused from
the charge for the offences punishable under Sections 4, 8 and
12 of the Protection of Children from Sexual Offences Act.
The prosecution version, in a nut-shell, is as follows :
3. The case of the prosecution, in a nutshell, is that on
21.03.2018 at around 12:30 in the afternoon, the appellant-
convict, an occultist (‘Bhuva’ – Trantrik), known to the
prosecutrix and her in-laws, took the prosecutrix (PW-15) and
her husband (PW-11) to the Vatrak river near Malpur village
under the pretext of performing rituals for the betterment of their
family. The appellant-convict then told the husband of the
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prosecutrix to go to Modasa for offering the holy water of Vatrak
river into Majun river in Modasa. It is alleged that taking
disadvantage of the loneliness of the prosecutrix, the appellant-
convict took her to the ravine (i.e. a secluded place near a river),
and under the pretext of making her to take an oath, he tied the
hands of the prosecutrix with her sari, cover her mouth by his
hand and by forcibly pushing her on the ground, he committed
rape on the prosecutrix against her will and then fled away.
4. On the statement of the prosecutrix, a complaint in this
regard came to be filed against the appellant-convict on the very
same day, i.e. on 21.03.2016, which was registered as I-CR
No.17 of 2018 before the Malpur Police Station, District Aravalli,
for the offences punishable under Sections 4, 8, 12 of the
POCSO Act as well as under Section 376 of the Indian Penal
Code.
5. After the registration of the FIR, the Investigating Officer
carried out the investigation, and during the investigation, the
statements of the relevant witnesses conversant with the alleged
offence were recorded, necessary panchnamas were drawn,
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several documentary evidence were collected, and after having
found adequate evidence against the present appellant-convict,
he was arrested and a charge-sheet came to be filed against him,
which was registered on 14.06.2017.
6. The Charge was framed on 03.11.2018 vide Exh.12 against
the appellant-convict for the offences punishable under Sections
4, 8, 12 of the POCSO Act as well as under Section 376 of the
Indian Penal Code, whereupon the accused pleaded not guilty
and claimed to be tried.
7. To bring home the charge, the prosecution had examined
18 witnesses and adduced 27 documentary evidence in support
of its case, which are as follow :
WITNESSES
WITNESS NAME EXH.
1. Dr.Mehul Devkaranbhai Patel, Medical Officer 14
2. Amrutbhai Sukhabhai Kotwal, Panch Witness 19
3. Arvindgiri Surajgiri Goswami, Panch Witness 26
4. Dr.Pratikshaben Kantilal Damor, Medical Officer 36
5. Vishnugiri Sukhlalgiri Goswami, Panch Witness 45
6. Ajitsinh Jagatsinh Rathod, Panch Witness 47
7. Himmatsinh Arjunsinh Chauhan, Panch Witness 49
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8. Jigneshbhai Natubhai Parmar, Panch Witness 51
9. Rajeshbhai Rameshbhai Bharwad, Panch 53
Witness
10. Hanumansinh Jashwantsinh 54
11. Yuvrajsinh Natwarsinh Chitroda 55
12. Jawansinh Jashwantsinh Rathod 56
13. Bharatsinh Jashwantsinh Rathod 57
14. Bhavnaben Natwarsinh Chitroda 58
15. Victim/Complainant 59
16. Jayantibhai Kodarbhai, P.S.O. 62
17. Ketanbhai Dilipbhai Brahmbhatt, I.O. 65
18. Maheshkumar Bachudan Gadhvi, I.O. 72DOCUMENTARY EVIDENCE
WITNESS NAME EXH.
1. Original Refer Chit 15
2. Original Case-Papers of the Victim 16
3. Certificate of Medical Examination of the Victim 17
4. H.I.V. and U.P.T. Report of the Victim 18
5. Seizure Panchnama of the clothes of the Victim 20
6. Panchnama of the scene of offence 27
7. Police Yadi for Medical Examination of the 37
Accused
8. Original Case-Papers of the Accused 38
9. Yadi regarding the sample of the Accused sent to 39
the F.S.L.
10. Certificate regarding the Medical Examination of 40
the Accused
11. Police Yadi for the Medical Examination of the 41
Victim
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13. Yadi regarding the sample of the Victim sent to 43
the F.S.L.
14. Certificate regarding the Medical Examination of 44
the Victim.
15. Panchnama of the person of the Accused 48
16. Panchnama of the Scene of Offence shown by the 50
Accused
17. Seizure Panchnama of the Bolero Jeep used in 52
the commission of the Offence
18. Original Complaint of the Offence. 60
19. Statement of the Accused u/s.164(5) of the 61
Cr.P.C.
20. True copy of the Police Station Diary 63
21. Original List 64
22. F.S.L. Report 66
23. Birth Certificate from the School of the Victim 67
24. Outward Form of the Muddamal 68
69
25. Original Receipt of the Muddamal by the F.S.L. 70
71
26. Forwarding Letter of the F.S.L. 73
27. Serological Report from the F.S.L. 74
8. After completion of the evidence, the further statement of
the appellant-convict was recorded under Section 313 of the
Code of Criminal Procedure and the appellant-convict had
explained the incriminating circumstances that he had lent some
amount of money to the husband of the prosecutrix and he was
not repaying the same. Therefore, to avoid repayment of the said
amount, they have falsely implicated him in the alleged offence.
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9. On completion of the trial, the trial court found the
appellant-convict guilty of the charge for the offence punishable
under Section 376 of the Indian Penal Code, and consequently,
sentenced him to suffer rigorous imprisonment for ten years vide
judgment and order dated 01.02.2020 passed in Special
(POCSO) Case No.28 of 2018.
10. While holding the appellant-convict guilty for the alleged
offence, the trial court observed that the prosecution has proved
the case against the appellant-convict beyond reasonable doubt
through cogent and convincing evidence of the victim (PW-15),
which is in corroboration with the medical evidence, forensic
evidence as well as documentary and ocular evidence of the
other witnesses.
11. Being aggrieved and dissatisfied with the judgment and
order of conviction and sentence, the appellant-convict has
preferred the present appeal before this Court.
SUBMISSION ON BEHALF OF THE APPELLANT-ACCUSED:
12. Learned advocate Mr.Kirtan Mistry appearing with learned
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advocate Mr.Hemang Bharwad appearing for the appellant-
convict has vehemently and fervently contended that the entire
case of the prosecution is false and fabricated. It is submitted
that since the prosecution failed to establish the age of the
victim, the appellant-convict was acquitted from the charged for
the offences punishable under the POCSO Act. It is further
submitted that the entire case of the prosecution is based upon
the evidence of the prosecutrix, which is not at all reliable and
trustworthy, and the same cannot be said to be of sterling
quality since it suffers from material contradictions and is
doubtful. Therefore, the same could not have been relied upon
by the trial court. It is also submitted that the evidence of the
prosecutrix cannot be said to be in corroboration with the
medical evidence as she was already married. Further, there is
no evidence of any slightest injury on the person of the
prosecutrix. Mr.Mistry has vociferously submitted that,
admittedly, the blood/semen samples of the husband of the
prosecutrix were not collected and sent to the FSL for
examination and matching with the biological samples of the
prosecutrix as well as the accused and, therefore, the scientific
evidence, more particularly, the serological evidence cannot give
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any headway to the case of the prosecution. It is submitted that
even from the FSL and serological report, no incriminating
evidence has come forth against the appellant-convict, which
clearly suggests that the group of the blood/semen samples of
the appellant-accused could not be detected. Learned advocate
has further submitted that it reflects from the evidence including
the panch-witnesses of various panchnamas that all other
witnesses are the relatives of the maternal uncle of the husband
of the prosecutrix and, therefore, they being interested
witnesses, their evidence could not have been relied upon by the
trial court.
13. In support of his submissions, learned advocate Mr.Mistry
has relied upon the following case-laws :
(i) Santosh Prasad @ Santosh Kumar vs. State of
Bihar, reported in (2020) 3 SCC 443; and
(ii) Lilia @ Ram Swaroop vs. State of Rajasthan,
reported in (2014) 16 SCC 303.
14. Considering the aforesaid, learned advocate Mr.Mistry has
urged that the judgment of the trial court is required to be
interfered with and has implored the court to allow the present
appeal, set-aside the impugned judgment and direct the
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acquittal of the appellant-convict from the charges levelled
against him.
SUBMISSIONS ON BEHALF OF THE RESPONDENT-STATE :
15. Vehemently opposing the present appeal and the
submissions advanced by learned advocate Mr.Kirtan Mistry for
the appellant-convict, learned APP Mr.Tirthraj Pandya appearing
for the respondent-State has submitted that the conviction and
sentence imposed by the trial court do not call for any
interference by this Court since the trial court, after appreciating
the evidence; both, ocular as well as documentary, has convicted
the present appellant for the charges levelled against him.
Mr.Pandya has submitted that the prosecution has proved all
the essential elements of the alleged offence through cogent and
convincing evidence.
16. Learned APP Mr.Pandya has submitted that ordinarily the
evidence of the prosecutrix should not be doubted and should be
believed, and if the evidence is reliable, no corroboration is
necessary. He has submitted that in the case on hand, the
evidence of the prosecutrix is quite reliable and trustworthy and,
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therefore, the same has rightly been relied upon by the trial
court. It is submitted that the medical evidence, forensic
evidence as well as the evidence of all other witnesses are in
corroboration with the evidence of the prosecutrix. Thus, it is
urged that the conviction and sentence recorded by the trial
court do not warrant interference by this Court and, therefore,
the appeal is required to be dismissed.
ANALYSIS AND FINDINGS :
17. Before adverting to the facts and circumstances of the
case, it would be apt to refer to the following case-laws, wherein
the Supreme Court has set-out the powers of the appellate
court :
(i) In Jogi and others vs. State of M.P., reported in
(2021) 4 CriCC 524, it has been held by the Supreme Court
that while exercising appellate jurisdiction, the High Court
is required to evaluate the evidence on record
independently and to arrive at its own findings as regards
the culpability or otherwise of the accused on the basis of
the evidentiary materials.
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(ii) In Padam Singh vs. State of Uttar Pradesh,
reported in AIR 2000 SC 361 = (2000) 1 SCC 621, it has
been held by the Supreme Court that it is the duty of the
appellate court to look into the evidence adduced in the
case and arrive at an independent conclusion as to
whether the said evidence can be relied upon or not, and
even if it can be relied upon, then whether the prosecution
can be said to have been proved beyond reasonable doubt
on the said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference from
proved and admitted facts. It must be remembered that the
appellate court like the trial court has to be satisfied
affirmatively that the prosecution case is substantially true
and guilt of the accused has been proved beyond all
reasonable doubt as the presumption of innocence with
which the accused starts, continues right through until he
is held guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal nor
weakened by a conviction in the trial court. The judicial
approach in dealing with the case where an accused is
charged of murder under Section 302 has to be cautions,
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circumspect and careful and the High Court, therefore, has
to consider the matter carefully and examine all relevant
and material circumstances, before upholding conviction.
(iii) In Amar Sardar vs. State of West Bengal, reported
in 2024 INSC 1040, it has been held by the Supreme Court
that while hearing the appeals under Section 374(2) of the
Code of Criminal Procedure, 1973, the High Court is
exercising its appellate jurisdiction. There shall be
independent application of mind in deciding the criminal
appeal against conviction. It is the duty of an appellate
court to independently evaluate the evidence presented and
determine whether such evidence is credible. Even if the
evidence is deemed reliable, the High Court must further
assess whether the prosecution has established its case
beyond reasonable doubt. The High Court though being an
appellate Court is akin to a trial court, must be convinced
beyond all reasonable doubt that the prosecution’s case is
substantially true and that the guilt of the accused has
been conclusively proven while considering an appeal
against a conviction.
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The necessity of this exercise arises from the fact that a
conviction curtails the personal liberty of the accused in
the incessant future. Hence, the High Court must provide
clear reasons for accepting the evidence on record. Mere
concurrence with the findings of the trial court is
insufficient unless supported by a well-reasoned
independent justification. As the first appellate court, the
High Court is expected to evaluate the evidence including
the medical evidence, statement of the victim, statements
of the witnesses and the defence’s version with due care.
18. Bearing in mind the aforesaid settled legal position, the
evidence of the instant case are required to be appreciated.
Further, considering the gravamen and severity of the offence,
the court has carefully scaled the entire evidence on record. The
only worthwhile evidence which has been produced by the
prosecution is the deposition of the prosecutrix herself. It is
noteworthy that the victim, who herself is the complainant, in
her complaint dated 21.03.2018 (Exh.60) has specifically stated
that she got married with her husband (PW-11) on 16.05.2017
(i.e. almost one year prior to the alleged incident). As noted
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earlier, since the prosecution had failed to establish through
cogent and convincing evidence that the victim was minor at the
time of the alleged incident, the trial court acquitted the
appellant-convict from the charge for the offences punishable
under Sections 4, 8 and 12 of the Protection of Children from
Sexual Offences Act.
19. The prosecutrix (PW-15), in her evidence at Exh.59 has
stuck to the fact that on the fateful day of the incident (i.e. on
21.03.2018 at around 12:30 in the afternoon), the appellant-
convict, a ‘tantrik’ (an occultist), who was known to the
prosecutrix and her in-laws, took the prosecutrix (PW-15) and
her husband (PW-11) to the Vatrak river near Malpur village
under the pretext of performing rituals for the betterment of their
family. The appellant-convict then told the husband of the
prosecutrix to go to Modasa for offering the holy water of Vatrak
river into Majun river in Modasa. It is alleged that taking
disadvantage of the loneliness of the prosecutrix, the appellant-
convict took her to the ravine (i.e. a secluded place near a river),
and under the pretext of making her to take an oath, he tied the
hands of the prosecutrix with her sari, cover her mouth by his
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hand and by forcibly pushing her on the ground, he committed
rape on the prosecutrix against her will and then fled away. The
prosecutrix further stated that after she managed to untie and
free herself, she went towards the road, where she found the
appellant-convict waiting near the Malpur Police Station with his
vehicle and then he made her sit in the vehicle. Later on, when
her husband arrived at the place, he gave Rs.500=00 to the
appellant-convict for the rituals, out of which, the appellant-
convict gave Rs.100=00 to the prosecutrix and then left away.
Subsequently, the prosecutrix informed her husband about the
entire incident, after which, the husband of the prosecutrix
contacted his maternal uncles (PW-10) Hanumansinh
Jashwantsinh Rathod and (PW-12) Jawansinh Jashwantsinh
Rathod. Thereafter, after due deliberations, the complaint was
filed at the Malpur Police Station regarding the alleged incident.
The evidence reveals that on the very day of the incident, the FIR
was registered at the Malpur Police Station at around 21:30
hours and the prosecutrix was examined by the Medical Officer
(PW-1) Dr.Mehul Devkaranbhai Patel on 22.03.2018 at around
1:00 p.m. The medical examination reveals that the prosecutrix
had sustained no injuries and no marks of any injury was
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detected on her person, though it was stated in the medical
report that her hymen was torn. The Medical Officer Dr.Mehul
Devkaranbhai Patel, in his evidence at Exh.14 during his cross-
examination, has specifically elicited that if a woman’s hands are
tied and she is forcibly subjected to intercourse, injuries are
likely to be seen on her elbows, hips, shoulder, back and legs.
The evidence further reveals that the prosecutrix was also
examined by the Medical Officer (PW-4) Dr.Pratikshaben Kantilal
Damor. The medical examination of the prosecutrix by this
witness also reveals that no mark of any external or internal
injury was found on the person of the prosecutrix. This witness
has also elicited in her cross-examination that if a woman is
forcibly subjected to intercourse, and if she resisted, there are all
chances of her receiving injuries. Thus, the evidence of both the
Medical Officers clearly reveals that not a slightest injury or even
an abrasion was noticed on the person of the prosecutrix.
20. It is also noteworthy that as per the evidence of the
prosecutrix, after the alleged incident, when she approached
towards the road, she found the appellant-convict with his
vehicle waiting for her near the Malpur Police Station and he
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made her sit in the vehicle till her husband arrived at the place.
However, she had not made any hue and cry nor she approached
the police though the Police Station was just opposite the road. It
is also to be noted that even after she informed her husband
about the incident, instead of immediately filing the complaint at
the Malpur Police Station, they went to village Aniyor and
thereafter at Dhansura and in the late evening at around 9:30
p.m., they had filed the complaint at the Malpur Police Station.
The testimony of the prosecutrix and the medical evidence on
record if read in juxtaposition with the conduct of the
prosecutrix and her husband, the version of the prosecution
seems to be improbable and doubtful.
21. It is settled that in the case of rape, the testimony of the
victim is very crucial piece of evidence to prove the case against
the accused, and if the evidence of the victim is found to be of
sterling quality, then there is no requirement under law to insist
for further corroboration. However, the court is not required to
accept the testimony of the victim if the same is improbable and
doubtful. It cannot be taken as a gospel truth in all
circumstances and with no exception. It is submitted that if the
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evidence of the victim woman on its face value appears to be
doubtful, the court has to look for the corroboration, and if two
views are possible on the evidence adduced by the prosecution,
the view which is favourable to the accused should be adopted.
(See Rajoo and others vs. State of Madhya Pradesh, reported in
AIR 2009 SC 858 and Kali Ram vs. State of Himachal Pradesh,
reported in AIR 1973 SC 2773 as well as of this Court in the case
of State of Gujarat vs. Farukhbhai Ahmedbhai Shaikh, reported in
(1997) 2 GLR 1400)
22. Similar ratio has been laid down by the Supreme Court in
the case of State of Punjab vs. Gurmit Singh, reported in
(1996) 2 SCC 384, wherein the Supreme Court observed thus :
“If evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony, it may
look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be sensitive
while dealing with cases involving sexual molestations.”
23. This was reiterated by the Supreme Court in the case of
Sadashiv Ramrao Hadbe vs. State of Maharashtra and
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another, reported in (2006) 10 SCC 92, as under :
“It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it is
capable of inspiring confidence in the mind of the court. If
the version given by the prosecutrix is unsupported by
any medical evidence or the whole surrounding
circumstances are highly improbable and belie the case
set up by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix.”
24. In the case of Tameezuddin alias Tammu Versus State
(Government of NCT of Delhi), reported in (2009)15 SCC 566,
the Supreme Court has held as under :
“It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story
is improbable and belies logic, would be doing violence to
the very principles which govern the appreciation of evidence
in a criminal matter.”
25. Having scaled the entire evidence in light of the aforesaid
guiding principles, this Court is of the considered opinion that
the version put forth by the prosecutrix is highly doubtful,
inconsistent, full of contradictions and not corroborated by the
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medical as well as forensic evidence. If the statement made by
the prosecutrix and the evidence of both the Medical Officers
(PW-1) Dr.Mehul Devkaranbhai Patel and (PW-4) Dr.Pratiksha
Kantilal Damor are read in juxtaposition with the forensic
evidence, they pose a serious doubt about the correctness and
truthfulness of the story narrated by the prosecution.
26. As discussed herein above, the Supreme Court, in the
above referred judgments, has made it clear that in case of rape,
the conviction can be made on the sole testimony of the
prosecutrix as her evidence is in the nature of an injured
witness, which is given a very high value by the court, but,
nevertheless, when a person can be convicted on the testimony
of a single witness, the courts are bound to be very careful in
examining such a witness and, thus, the evidence of the
prosecutrix must be of sterling quality.
27. The Supreme Court, in the case of Rai Sandeep @ Deepu
vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, has held
that sterling witness should be of a very high quality and caliber
whose version should, therefore, be unassailable. The court
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considering the version of such witness should be in a position
to accept it for its face value without any hesitation. To test the
quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. The relevant paragraph is
reproduced herein below :
“15. In our considered opinion, the ‘sterling witness’ should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the version
of such witness should be in a position to accept it for its
face value without any hesitation. To test the quality of such
a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more
relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when
the witness makes the initial statement and ultimately
before the Court. It should be natural and consistent with
the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross-
examination of any length and strenuous it may be and
under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well
as, the sequence of it. Such a version should have co-relation
with each and everyone of other supporting material such asPage 22 of 25
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the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the
version of every other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as
all other similar such tests to be applied, it can be held that
such a witness can be called as a ‘sterling witness’ whose
version can be accepted by the Court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve the
other supporting materials for holding the offender guilty of
the charge alleged.”
33. In the instant case, the evidence of the prosecutrix, if read
as a whole, along with the medical evidence and also considering
the conduct of the prosecutrix as well as her husband, it does
not inspire confidence. Further, the manner and method in
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which the incident had occurred, the version put forth by the
prosecution is not palatable or believable. It is noteworthy that
the evidence of other material witnesses cannot be relied upon
since all the witnesses, including the panch-witnesses, are the
relatives of the maternal uncle of the husband of the prosecutrix
and they appear to be interested witnesses. Further, the FSL
report also does not reveal any connecting evidence. It appears
from the report that during the examination, the presence of
blood/semen was noticed on the clothes of the prosecutrix and
on the inner-wear of the appellant-accused. However, since the
group of the blood/semen samples of the accused could not be
detected, the same cannot be considered as a corroborative piece
of evidence. It is noteworthy that the prosecutrix is already
married and no biological samples of her husband were also
collected by the Investigating Officer for the examination through
the FSL. It is also noteworthy that the clothes of the appellant-
accused were seized after ten days of the incident of his arrest.
This also cast a shadow on the version of the prosecution.
34. In view of the above, this Court is of the considered opinion
that the solitary version of the prosecutrix cannot be taken as a
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gospel truth on its face value, and in absence of any cogent,
convincing and supporting evidence, the conviction cannot be
sustained.
35. On the facts and in the circumstances of the case as well
as for the reasons stated herein above, the appeal succeeds and
the same is hereby allowed. The impugned judgment and order
of conviction and sentence dated 01.02.2020 passed by the
learned Special (POCSO) Judge, Aravalli at Modasa, in Special
(POCSO) Case No.28 of 2018 is hereby quashed and set-aside.
The appellant-convict (i.e. the original accused) shall be set at
liberty forthwith, if not required in any other case.
36. Bail bonds shall stand cancelled. The amount of fine, if
any, paid by the appellant-accused shall be refunded to him.
(VIMAL K. VYAS, J.)
/MOINUDDIN
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