Supreme Court – Daily Orders
Yogesh Jayantilal Bhavasar vs The State Of Gujarat on 23 January, 2025
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.838/2016
YOGESH JAYANTILAL BHAVASAR Appellant(s)
VERSUS
THE STATE OF GUJARAT Respondent(s)
WITH
Criminal Appeal. No. 839/2016
O R D E R
1. Since the challenge in both the captioned Appeals are to the
self same Judgment and Order passed by the High Court, those were
taken up for hearing analogously and are being disposed of by this
common Judgment and Order.
2. The two appeals arise from the Judgment and order passed by
the High Court of Gujarat at Ahmedabad dated 22-9-2015 in Criminal
Appeal No.374/2012, Criminal Appeal No.375/2012 and Criminal Appeal
No.674/2012 respectively, by which the appeals filed by the
appellants – herein (original convicts) came to be dismissed
thereby affirming the Judgment and Order of conviction passed by
the Additional Sessions Judge, Court No.7, Ahmedabad City in
Sessions Case No.269/2008 for the offence punishable under Sections
418, 420, 376 with Section 114 of the Indian Penal Code (for short
Signature Not Verified
the “IPC”). The punishment imposed upon the appellants – herein in
Digitally signed by
VISHAL ANAND
Date: 2025.02.10
19:46:15 IST
Reason:
a tabular form is as under:-
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Offence u/s Punishment
Original 376 r/w 114 IPC RI for three years
Accused No.1
with fine of
Rs.3000/- and in
default, SI for a
further period of
six months.
418 r/w 114 IPC RI for two years with
fine of Rs.3000/- and
in default, SI for a
further period of
three months.
420 r/w 114 IPC RI for two years with
fine of Rs.3000/- and
in default, SI for a
further period of
three months.
Original 376 r/w. 114 IPC RI for one year with
Accused Nos.2 &
fine of Rs.2000/-
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each and in default,
SI for a further
period of three
months.
418 r/w. 114 IPC RI for one year with
fine of Rs.2000/-
each and in default,
SI for a further
period of three
months.
420 r/w 114 IPC RI for one year with
fine of Rs.2000/- and
in default, SI for a
further period of
three months.
3. We take notice of the fact that the Criminal Appeal
No.374/2012 before the High Court was at the instance of the
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original Accused Nos.2 and 3 respectively (uncle and aunt of vic-
tim). The Criminal Appeal No.375/2012 before the High Court was at
the instance of original accused No.1 (the main accused) and Crim-
inal Appeal No.674/2012 was at the instance of the State, seeking
enhancement of sentence imposed upon all the three convicts herein
before us. The two Criminal Appeals filed by the appellants –
herein came to be dismissed and at the same time, the Criminal
Appeal filed by the State for enhancement of sentence also came to
be dismissed.
4. The case of the prosecution may be summarised as under:-
a. The original first informant (prosecutrix) lodged a First
Information Report at the Amraivadi Police Station, Ahmedabad
City on 1-9-2006 against in all 9 accused persons. The First
Information Report reads thus :-
“(1)I am residing at the …………………………………………………………. educated
person having prestige.
(2)I came into introduction and contact with Lorense Samson
Christian …………………..………………………………. I was mentally upset.
(3)During that time I went to the house of my paternal
aunty in February, 2005,
…………………………………………………………………………………….my mother trusted into her
talking.
(4) During the talk ………………………………………………… I used to maintain
the house.
(5)Suddenly on one day, my aunty told me
…………………………………………………………………………….my aunty introduced me with
Bhavsar.
(6)Thereafter Yogesh Bhavsar developed
………………………………………………………………developed intimated relations with
us.
(7)During that time my aunty ………………………………………………………………………….I
was kept closed.
(8)After ten days or so,……………………………………………………. regarding my
residence here.
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(9)After about one month Yogesh Bhavsar
……………………………………………………….was enjoying the physical relations.
(10)As on dated 21/11/2005 ……………………………………………….I was sitting
at inside.
(ll)At the time when …………………………………………………………… remained
present in the Hospital in Surat on duty.
(12)I was fed up with the ………………………………………………….of Natal I
have come to the house.
(13)When I was in the Hospital………………………………………..at Hatkesh-
war Bus Stand.
(14)I felt uneasiness…………………………………………this is my complaint.
DATED; 11/8/2006.
SD/- ILLEG.
POLICE STATION OFFICER,
AMRAIVADI POLICE STATION.
YOURS SD/- IN ENGLISH.
(CHRISTIAN GLORI AUGUSTINBHAI).
COPY FORWARDED TO;
THE VATVA G.I.D.C. POLICE STATION,
AHMEDABAD CITY.”
b. Upon registration of the FIR, the Police undertook
the investigation by recording Statements of the victim and
other witnesses. At the end of the investigation, Police
filed charge-sheet against only three persons named in the
FIR, i.e., the original accused Nos.1, 2 and 3 (convicts)
whereas the closure report was filed against the other six
persons named in the FIR.
c. The Trial Court proceeded to frame charge against all the
three appellants – herein vide the order dated 9-3-2009 Ex-
hibit `P3’.
d. The charge reads thus :-
“Charge
5I, Shri A.H. Shah, Judge, Additional City Session Judge,
Court No.20, Ahmedabad City, hereby frame the present
charge sheet against the aforesaid accused persons as un-
der:
1. You, accused no.2 and 3 are the real aunty (Foi) and
Uncle (Fua) of the complainant lady; After the demise of
the complainant’s father, you took the complainant into
confidence by giving inducement of performing her mar-
riage with a man of her choice being Laurence Wilson
Christian and brought her from the residence of her
mother father to your rented residence at Ravirandal So-
ciety, Jashodanagar, which is of the ownership of witness
Gopalbhai Parmanand Koshti. Thereafter, you, accused no.1
and 2, being the co-religionist and despite he being mar-
ried and a father of two children, you, accused no.2 and
3, have, with an intention to perform marriage of the
complainant with accused no.1, introduced the complainant
with accused no.1 with the help of Renison alias Sanju
Vishwashbhai Mistry. Therefore, you accused no.1 had
taken the complainant into confidence and though you be-
ing married, you had enticed and cajoled her for marriage
and enjoyed physical pleasure (sexual pleasure) and
thereafter, in connivance of each other you all the three
accused had brought the complainant lady to Surat for of-
fering her job as a Nurse and offered her job as a Nurse
at the hospital of witness Dr. Devang R. Patel and there-
after, accused no.1 had talks for several through mobile
and informed the complainant for marriage and travelled
her at different places and stayed in hostel and enjoyed
sexual pleasure with the complainant and thereafter,
brought the complainant to Ahmedabad from Surat and hide
her at personal place i.e. in the house of witness Kal-
aben by making it sure that none of her relatives could
know the same. Further, upon the complainant becoming
ill, she was admitted and treated at the hospital of wit-
ness Dr. Nayan N. Patel and thereafter by taking her to
several places, you accused no.1 have enjoyed sexual
pleasure and made her pregnant and thereafter by taking
her to the hospital of witness Dr. Mahesh C. Jariwala,
carried out her abortion and thereafter you deserted her.
Thereafter, since the complainant had got published news
item in the newspapers regarding you accused no. had com-
mitted aforesaid criminal acts with your own niece, you
accused no.3 had made attempt for your defense. An of-
fence in respect of the same has been registered with Am-
raiwadi Police Station.
2. In this manner, in connivance of each other you all
the accused have committed offences on the complainant
lady at different times between the period 12.02.05 to
11.08.06, which are punishable under Sections 420, 418,
376, 362, 365, 366, 368, 344, 346, 312, 313, 114 of In-
dian Penal Code. Since accused persons have committed the
offences, which are punishable under the aforesaid sec-
tions of Indian Penal Code, within the jurisdiction of
this Session Course, I am directing to conduct the trial
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proceedings of the case against the accused persons be-
fore this Sessions Court.
On this 9th day of March 2009
Sd/-
(A. H. Shah)
Judge, Additional Session
Judge, City Civil Court No.20,
Mirzapur, Ahmedabad”
e. In the course of the trial, the prosecution examined the
following witnesses:-
P.W. Name of Witness Exhibit No. No. 1. Dilipsinh Madhubha Parmar 11 2. Dabhaibhai Abhaysinh Rathod 13 3. Nitesh Pramodrai Jani 17 4. Ishwarbhai Babarbhai Rathod 21 5. Gautambhai Somabhai Patel 23 6. Dipakbhai Kantilal Vaghela 25 7. Survivor 31 8. Serena Augustin Christian 51 9. Grita Kennet Jaina 52 10. Dr. Dipak Shantilal Mehta 53 11. Dr. Jayant Nagardas Solanki 56 12. Samsung Lennet Christian 58 13. Mahesh Chimanlal Jariwala 60 14. Dr. Nayan Nathalal Patel 61 15. Urmilaben Bhagwanbhai Jat 64 16. Mitul Kanubhai Patel 66 17. Devidas Hasanbhai Gavli 68 18. Kalaben Naranbhai Barot 72 19. Savitaben Rajubhai Vachheta 73 20. Nazirali Rasulmiya Sayed 74 21. Mukeshkumar Abhayrajbhai 77 22. Serenaben Aayubbhai Desai 82 23. Rajan Mahendrabhai Desai 89 7
f. The prosecution also placed reliance on several pieces of
documentary evidence, particularly, the complaint at Exh. 34,
Medical Certificate of victim at Exh.54, FSL Reports at
Exh.97 & 100 and Serological Reports at Exh.98 & 101.
g. Upon closure of the recording of the oral evidence, the
Trial Court recorded the further statements of all the three
appellants – herein under Section 313 of the Code of the
Criminal Procedure, 1973, to which they claimed to be inno-
cent and submitted that they had been falsely implicated.
h. The Trial Court upon appreciation of the oral as well as
the documentary evidence on record, recorded a finding that
the prosecution had been successful in establishing its
case against all the three appellants – herein beyond reason-
able doubt and accordingly held them guilty for the of-
fence enumerated above.
i. The three appellants before us, being dissatisfied with
the judgment and order of conviction passed by the Trial
Court, went in appeal before the High Court. The appeals also
failed. The High Court affirmed the judgment and order of
conviction passed by the Trial Court.
5. In such circumstances, referred to above, the appellants are
here before this Court with their respective appeals.
6. We have heard Mr. K.T.S. Tulsi, the learned Senior counsel
appearing for the original accused No.1 namely Yogesh Jayantilal
Bhavasar. No one appeared in the connected appeal.
7. Mr. Tulsi would submit that the courts below committed a
serious error in holding his client guilty of the alleged offence.
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8. According to Mr. Tulsi, the entire conviction is based on the
evidence of the victim and she cannot be said to be a reliable
witness. He would submit that the evidence on record would indicate
that she was a consenting party and only when things went sour, out
of vengeance, she decided to lodge a false FIR against the main ac-
cused.
9. He would submit that there is documentary evidence on record
in the form of letters said to have been written by the victim and
which have been exhibited in evidence indicating that the victim
was in a relationship with his client on her own free will and vo-
lition. He would submit that there is nothing to indicate that she
was oblivious of the fact that the accused was a married man and
having a family.
10. According to the learned Senior counsel, even if the entire
case of the prosecution is believed to be true, no offence could
be said to have been made out.
11. In such circumstances, referred to above, the learned counsel
prayed that there being merit in his appeal, the same may be al-
lowed.
12. Since no one has appeared on behalf of the original Accused
Nos.2 & 3 in the connected appeal, i.e., uncle and aunt of the
victim, we on our own with the assistance of Ms. Swati Ghildiyal,
the learned Standing counsel appearing for the State of Gujarat
looked into the evidence on record. We also looked into the grounds
raised in the Memorandum of their appeal.
13. On the other hand, Ms. Swati Ghildiyal, the learned Standing
counsel appearing for the State of Gujarat submitted that no error
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not to speak of any error of law could be said to have been
committed by the courts below in holding the appellants – herein
guilty of the offences enumerated above.
14. She would submit that there is no good reason to disbelieve
the victim.
15. According to her, the entire examination-in-chief of the
victim could be said to have gone unrebutted. The defence was
unable to elicit anything from the cross-examination of the victim
on the basis of which, it could be said that the victim is an
unreliable witness.
16. In no manner, the credibility of the victim could be said to
have been shaken.
17. She submitted that the evidence which has come on record is
something very disturbing. All the three appellants could be said
to have taken undue advantage of the helpless situation in which
the victim was put at the relevant point of time. She would submit
that she was actually forced to get into flesh trade and for that
purpose, she was being physically assaulted at times.
18. In such circumstances, referred to above, the learned Standing
counsel for the State submitted that there being no merit in both
the appeals, those may be dismissed.
19. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in dismissing the two appeals filed by the appellants –
herein.
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20. Before we proceed to look into the appeals on merit, we must
first look into our order dated 9-1-2025 which reads thus:-
“1. The operative part of the judgment and order passed by
the trial court reads thus:-
“for the offence punishable u/s.376 and 114 of the
I.P.C. the accused No.1 Yogesh Jayantilal Bhavsar is
ordered to undergo a rigorous imprisonment of 3 (Three)
years and to pay a fine of Rs.3,000/- (Rupees Three
Thousand only) and in default of payment of fine, he
shall undergo a further simple imprisonment of 6 (Six)
months.
Further, for the offence punishable u/s.418 and 114 of
the I.P.C. the accused No.1 Yogesh Jayantilal Bhavsar
is ordered to undergo a rigorous imprisonment of 2
(Two) years and to pay a fine of Rs.3,000/- (Rupees
Three Thousand only) and in default of payment of fine,
he shall undergo a further simple imprisonment of 3
(Three) months. Further, for the offence punishable
u/s.420 and 114 of the I.P.C. the accused No.1 Yogesh
Jayantilal Bhavsar is ordered to undergo a rigorous
imprisonment of 2 (Two) years and to pay a fine of
Rs.3,000/- (Rupees Three Thousand only) and in default
of payment of fine, he shall undergo a further simple
imprisonment of 6 (Six) months.
Whereas, for the offence punishable u/s.376 and 114 of
the I.P.C. the accused No.2 Sheelaben V/o. Goldenbhai @
Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai
both, are ordered to undergo a rigorous imprisonment of
I (One) year and to pay a fine of Rs.2,000/- (Rupees
Two Thousand only) each and in default of payment of
fine by any of them, they shall undergo a further
simple imprisonment of 3 (Three) months.
Further, for the offence punishable u/s.418 and 114 of
the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @
Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai
both, are ordered to undergo a rigorous imprisonment of
1 (One) year and to pay a fine of Rs.2,000/- (Rupees
Two Thousand only) each and in default of payment of
fine by any of them, they shall undergo a further
simple imprisonment of 3 (Three) months. Further, for
the offence punishable u/s.420 and 114 of the I.P.C.
the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai
and the accused No.3 Goldenbhai @ Ganeshbhai both, are
ordered to undergo a rigorous imprisonment of 1 (One)
year and to pay a fine of Rs.2,000/- (Rupees Two
Thousand only) each and in default of payment of fine
by any of them, they shall undergo a further simple
imprisonment of 3 (Three) months.
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It is hereby ordered that all the sentences awarded to
the accused persons shall run concurrently and the
period spent by them in the prison shall be given as
set off.
It is also hereby ordered that the muddamaal of the
instant case shall be disposed of after expiry of the
appeal period and each accused herein shall be provided
with one copy of this judgment, free of cost.”
2. We fail to understand how trial court could have imposed
sentence of three years rigorous imprisonment for the
offence of rape punishable under Section 376 of the Indian
Penal Code,1860 (for short “the IPC”). Section 376 of the
IPC, even prior to its amendment in 2013, provided that
the minimum punishment shall be that of seven years, which
may be for life or for a term which may extend to 10
years.
3. We also take notice of the fact that the State had
preferred an appeal seeking enhancement of sentence.
However, the said appeal was dismissed by the High Court.
4. Even the High Court while dismissing the criminal appeal
filed by the appellants herein did not take notice of the
fact that how could the trial court have imposed sentence
of three years for the offence of rape punishable under
Section 376 of the IPC whereas the minimum is seven years.
5. According to Ms. Swati Ghildiyal, the learned counsel
appearing for the State of Gujarat, it is a serious error
on the part of both, the trial court as well as the High
Court going to the root of the matter. However, even
according to her, she has been left wondering how this
situation can be taken care of the absence of any appeal by
the State before this Court.
6. We will have to look into this aspect closely. The
learned counsel appearing for the appellants shall first
address us on this issue on the next day of hearing.
7. We also take notice of the observations made by the
High Court in para 8 of its impugned judgment. The plain
reading of para 8 would indicate that the High Court was
conscious of this error committed by the trial court in
imposing sentence of three years. However, the High Court
seems to have overlooked this aspect of the matter.
8. The learned counsel appearing for the parties shall be
provided with the soft copy of the entire record of the
case at the earliest.”
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21. In reply to the aforesaid order, the State has filed an affi-
davit duly affirmed by one Rajanikant Son of Manubhai Parmar serv-
ing as Police Inspector at GIDC Vatva Police Station, Ahmedabad. In
the affidavit, the following has been stated:-
“That the present short affidavit is being filed for the
limited purpose to place on record the bare text of Section
376 of the Indian Penal Code, 1860 (“IPC“) as it stood on
17.03.2012 when the Ld. Additional Sessions Judge, Ahmed-
abad had passed judgment in Sessions Case No. 269 of 2008
convicting the Appellant of committing offences punishable
under sections 418, 420, 376 and 114 of the IPC. It may be
noted that section 376(1) of the IPC before the passing of
the Criminal Law (Amendment) Act, 2013, contained a proviso
stating that “provided that the Court may, for adequate or
special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years”.
A True Copy of the bare text of Section 376 of the IPC,
1860 before and after the Criminal Law Amendment Act, 2013
is marked and annexed herewith as Annexure A/2.
5. That, it is humbly submitted that during the course of
hearing on 09.01.2025, the Bare Act available with the
counsel for the Respondent – State did not contain the pro-
viso to section 376(1) as it stood on 17.03.2012 and only
mentioned substitution of the words ” shall not be less
than seven years, but which may extend to imprisonment for
life and shall also be liable to fine at the footnote. It
appears that this Hon’ble Court also had same copy of the
Bare Act, which did not contain the entire deleted provi-
sion, which led to the passing of the aforesaid order.
That, in view of the above, the Answering Respondent humbly
seeks leave of this Hon’ble Court to place on record the
correct provision of section 376 as it stood before the
passing of the Criminal Law (Amendment) Act, 2013 for the
consideration of this Hon’ble Court.”
22. Thus, it appears that at the time of the incident i.e. in the
year 2006, the minimum punishment for the offence of rape punish-
able under Section 376 IPC was undoubtedly 7 years but the proviso
therein enabled the Court for adequate or special reasons to be
mentioned in the judgment to impose a sentence of imprisonment for
a term of less than 7 years. It appears that the Trial Court on
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very flimsy grounds invoked the proviso so as to reduce the minimum
sentence of 7 years to 3 years. The High Court also failed to pay
attention to this part of the order of the Trial Court and affirmed
the same.
23. The High Court went one step ahead. The High Court did not deem
fit to even look into the appeal filed by the State for en-
hancement of sentence.
24. Be that as it may, it is too late in the day for this Court to
say anything as regards sentence because State is not before us by
way of any appeal so far as the quantum of sentence is concerned.
So the issue of sentence is set at rest at this stage. We shall now
proceed to consider whether the Courts below rightly held the ap-
pellants – herein guilty of the alleged offence.
25. We have gone through the entire oral evidence of the victim. We
have also gone through the reasonings assigned by the Trial Court
while appreciating the evidence of the victim. We have also looked
into the impugned judgment of the High Court.
26. We are of the view that there is no good reason to disbelieve
the oral version of the victim.
27. The learned Standing counsel for the State of Gujarat is right
in her submission that the defence was unable to elicit anything
substantial from the cross-examination of the victim so as to
discredit her in any manner.
28. In this regard, the learned Senior counsel submitted that
although the cross-examination may be deficient, yet the Court
14
should look into the overall and broad probabilities of the matter
and then determine the guilt of the accused.
29. The learned Senior counsel may be right to some extent in sub-
mitting that cross-examination is not the only mode of discrediting
the witness and from the examination-in-chief, itself if the Court
finds the entire case to be doubtful, then it is always open for
the Court to discard the entire evidence.
30. However, in the case on hand, we do not find anything im-
probable or doubtful so far as the case put up by the victim is
concerned.
31. There is no good reason for us to disturb the concurrent
findings recorded by the two Courts as regards the guilt of the
accused persons.
32. In the result, both the appeals fail and are hereby dismissed.
33. The appellants are on bail. Their bail bonds stand cancelled.
34. They shall now surrender before the Trial Court and the Trial
Court upon surrender shall forward them to the jail authorities to
serve out the remaining sentence.
35. They shall surrender within a period of eight weeks from
today.
…………………………………………J
(J.B. PARDIWALA)
…………………………………………J
(R. MAHADEVAN)
NEW DELHI
23RD JANUARY, 2025.
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ITEM NO.102 COURT NO.14 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.838/2016
YOGESH JAYANTILAL BHAVASAR Appellant(s)
VERSUS
THE STATE OF GUJARAT Respondent(s)
[ AS ITEM NO. 2 ] FOR EXEMPTION FROM FILING O.T. ON IA 7894/2016)
WITH
Crl.A. No. 839/2016 (II-B)
Date : 23-01-2025 These matters were called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE J.B. PARDIWALA
HON’BLE MR. JUSTICE R. MAHADEVANFor Appellant(s) :
Mr. K T S Tulsi, Sr. Adv.
Mr. Raj Kamal, AOR
Ms. Pallavi Malhotra, Adv.
Ms. Troeeta Bhuniya, Adv.
Ms. Stuti, Adv.
For Respondent(s) :
Ms. Swati Ghildiyal, AOR
Ms. Devyani Bhatt, Adv.
Mr. Ojaswa Pathak, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1. Exemption Application is allowed.
2. Both the appeals fail and are hereby dismissed, in terms of
the signed order.
3. The appellants are on bail. Their bail bonds stand cancelled.
They shall surrender within a period of eight weeks from today.
4. Pending applications, if any, shall also stand disposed of.
(VISHAL ANAND) (POOJA SHARMA)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed Order is placed on the file)
