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CR.MA/30/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 30 of 2011
In
CRIMINAL APPEAL No. 5 of 2011
With
CRIMINAL
MISC.APPLICATION No. 29 of 2011
In
CRIMINAL APPEAL No. 5 of 2011
With
CRIMINAL
APPEAL No. 5 of 2011
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
KISHAN
@ KARSANJI CHHANAJI THAKOR & 1 - Respondent(s)
=========================================================
Appearance
:
MR
KARTIK PANDYA, ADDL.PUBLIC PROSECUTOR
for
Applicant(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 26/08/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
The
applicant – appellant – State of Gujarat filed this
application u/s.5 of the Limitation Act, praying for condonation of
delay of 8 days caused in preferring application seeking leave to
prefer appeal challenging impugned judgment and order dated
24.9.2010 rendered by learned Addl.Sessions Judge, Banaskantha at
Palanpur in Sessions Case No.63 of 2009 whereby the respondents
herein, who were original accused in the aforesaid sessions case,
came to be acquitted of the offences punishable under Sections 363,
366, 376 r/w.Section 114 of the IPC.
Mr.Kartik
Pandya, learned APP, for the applicant – appellant –
State submitted that the delay of 8 days is caused on account of
administrative reasons in getting sanction from the legal department
to prefer the instant appeal. It is submitted that the grounds for
delay contended in the application have been duly supported by
affidavit of Under Secretary of Legal Department of the State.
Mr.Pandya, further submitted that the applicant – appellant
has meritorious case, as the trial Court erred in not properly
appreciating the oral evidence adduced by the prosecution, and more
particularly, the deposition of the prosecutrix herself, who was at
the relevant time aged about 16 years and 4 months. It is,
therefore, submitted that if the delay is not condoned and the
appeal is not permitted to be preferred, the applicant –
appellant – State would suffer great prejudice and its
meritorious case shall be adversely affected.
Since
Mr.Pandya, learned APP, for the applicant – appellant submitted that
there are merits in the appeal and if the delay is not condoned,
meritorious case of the applicant – State shall be adversely
affected, and that it shall suffer prejudice, we deem it fit to
examine the merits of the case. For the said purpose, Mr.Pandya,
supplied copies of depositions and other evidence for our perusal.
Considering the impugned judgment and order rendered by the trial
Court, so also the overall evidence on record, it clearly transpires
that at the relevant time i.e. on dated, 14.11.2008 when the
incident occurred, the prosecutrix was aged about 16 years and 4
months and, therefore, she was not under 16 years of age. Perusing
the deposition of the prosecutrix, PW-3, Exh.21, it is true that in
her examination-in-chief, she stated that she was forcibly kidnapped
by both the accused along with other juvenile accused and that she
was taken to different places and for more than one time, she was
raped by respondent – accused No.1 Karsan Chanaji. If her
cross-examination is considered along with the evidence of the
Investigating Police Officer, who recorded her police statement, and
as observed by the trial Court in the impugned judgment and order,
it clearly transpires that before the police, the prosecutrix had
stated that she was knowing the accused No.1 Karsan and that they
were in love. She further stated in her police statement, that on
14.11.2008, as previously understood, both herself and the accused
left their home. It is further pertinent to note that from
14.11.2008 to 2.12.2008, she went to different places along with the
accused and they stayed together in different guest houses, and that
at the place called Varmanagar, they had hired a room and they were
staying in the room. It further transpires that as per the evidence
of the prosecutrix, on 2.12.2008, since they were without any money,
she herself and the accused voluntarily surrendered before Palanpur
police. It further transpires that the parents of the prosecutrix,
namely, PW-2 Ramchandbhai and PW-3 Lilaben were called to the police
station, but the prosecutrix refused to go with them to her home and
opted to go to Nari Sanrakshan Gruh and she actually went to Nari
Sanrakshan Gruh. Further examining the deposition of the
prosecutrix, so also the evidence of Medical Officer, PW-1
Dr.Bhaderu, it transpires that before the Medical Officer, the
prosecutrix gave history to the effect that she was in love with the
accused and had gone together, as mutually understood, and the
intercourse was with her consent.
In
the impugned judgment, the trial Court elaborately discussed the
above aspect of the matter as well as considered earlier decisions
delivered by this Court in almost identical matters. In above view
of the matter, the trial Court, ultimately, came to the conclusion
that the prosecution failed to prove its case against the accused
beyond any reasonable doubt. The trial Court further observed that
even regarding the exact age of the prosecutrix, there was no cogent
evidence and the consistent stand of the accused before the trial
Court was to the effect that the prosecutrix was major. The trial
Court, ultimately, recorded the acquittal of the accused.
Considering
the above aspect of the matter, we are of the considered opinion
that the trial Court did not commit any error in recording the
acquittal of the accused and, therefore, no interference is
warranted in the impugned judgment and order. When such is the
situation, we are further of the opinion that the appeal is,
therefore, devoid of any merits. Under such circumstances, even if
the delay would be condoned and the appeal would be admitted, no
useful purpose would be served. We, therefore, do not agree with the
submission advanced on behalf of the applicant – appellant
that if the delay is not condoned, the meritorious case of the
appellant would be adversely affected and that the applicant –
appellant shall suffer prejudice.
For
the foregoing reasons, the application praying for condonation of
delay, the application seeking leave to prefer appeal and the appeal
stand dismissed.
(D.H.WAGHELA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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