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GUJARAT HIGH COURT
Cheekati Manavendranath Roy and D.M. Vyas, JJ.
State of Gujarat – Appellant
versus
Anilbhai Babubhai Dudhat – Respondent
R/Criminal Appeal (Against Acquittal)
No.1038 of 2013
Decided on 30.6.2025
Counsel for the Parties:
For the Appellant: Ms Krina Calla, APP
For the Respondent: Rule Served
IMPORTANT POINT
Rape – Consensual sexual intercourse between two major partners is not rape.
Headnote:
Indian Penal Code, 1860 – Sections 452, 376 and 506(2) – Gujarat Police Act, 1951 – Section 135 – Criminal Procedure Code, 1973 – Section 378 – House trespass, rape and criminal intimidation – Appeal against acquittal – There is absolutely no medical evidence on record to prove that any forcible sexual intercourse was performed on her by accused against her consent – Conduct of victim in remaining silent throughout for a considerable period of time till she became pregnant and till she reached advanced stage of pregnancy clearly proves that it is a clear case of consent and not at all a case of rape – Doctor had clearly testified to that fact that she is habituated to sexual intercourse – She has indulged in act of promiscuity – No case of Section 376 of IPC or Sections 452 and 506(2) of IPC or under Section 135 of Gujarat Police Act is made out from facts and circumstances of case – Judgment of acquittal affirmed. (Paras 9, 10, 11 and 12)
Result: Acquittal Appeal dismissed.
JUDGMENT (ORAL)
Cheekati Manavendranath Roy, J.—Challenge in this appeal is to the judgment dated 15/04/2013 in Sessions Case No.34 of 2011 on the file of the Sessions Judge, Amreli whereby the sole accused in the case was acquitted of the charges under Sections 452, 376 and 506(2) of the Indian Penal Code as well as Section 135 of the Gujarat Police Act.
2. Facts of the prosecution case germane to dispose of this appeal may briefly be stated as follows:
2.1. The victim in the case is aged about 18 years on the date of lodging report with the police on 15/08/2010. The accused is the resident of the same street where she is residing. It is stated that prior to lodging of the report on 15/08/2010 when the victim was alone in her house as her parents who are labourers went to attend their labour work that the accused trespassed into their house and forcibly committed rape on the victim who is examined as PW-8 and he has threatened her with dire consequences if she discloses about said incident to anyone. Thereafter also the accused repeatedly used to visit the house of PW-8 when she was alone in the house and commit rape on her and consequently she became pregnant. But she did not inform about the incident to anyone or even about her pregnancy till she became 7th or 8th month pregnant. So when she was in advanced stage of pregnancy she informed to her parents that the accused had sexual intercourse with her and that she became pregnant.
2.2. At that time, she lodged a report with the police on 15/08/2010. The police registered a crime against the accused for the offences punishable under Sections 452, 376 and 506(2) of the Indian Penal Code and under Section 135 of the Gujarat Police Act. She was examined by the doctor and the doctor who examined her opined that she is habituated to sexual intercourse.
3. After completion of the investigation, the police filed charge sheet against the accused for the aforesaid offences.
4. The trial court framed charges against the accused for the offences punishable under Sections 452, 376 and 506(2) of the Indian Penal Code and under Section 135 of the Gujarat Police Act. The accused denied the said charges and claimed to be tried.
5. During the course of the trial, the prosecution got examined PW-1 to PW-13 witnesses and got marked 21 exhibits to prove its case against the accused.
6. At the end of the trial, after considering the oral and documentary evidence on record, the trial court acquitted the accused of the said charges as it did not find him guilty for the aforesaid offences. Aggrieved by the impugned judgment, the State has preferred the present appeal.
7. In Section 313 examination of the Criminal Procedure Code, the accused has come up with a version that both he and PW-8 were in love with each other and they had consensual sexual intercourse with each other and he has also produced their joint photographs in support of his defense version.
8. When the appeal came up for hearing before this Court, we have heard learned Additional Public Prosecutor, Ms.Krina Calla for the State. Despite service of notice, respondent did not turn up for hearing, for the reasons best known to him. As it is an old appeal of the year 2013, listed under the caption “critically old matters” for final hearing, we are not inclined to adjourn the hearing of the appeal. Therefore, we have decided to go through the record and dispose of the appeal on merits and the material available on record.
9. Admittedly, the victim who is examined as PW-8 is a major aged about 18 years. Though it is stated by her at the first instance that while she was alone in the house that the accused has trespassed into her house and had forcible sexual intercourse with her, there is absolutely no medical evidence on record to prove that any forcible sexual intercourse was performed on her by the accused against her consent. It is relevant to note here that even according to her own version, there are repeated incidents of both of th
