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CR.MA/9756/2009 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9756 of 2009
In
CRIMINAL
APPEAL No. 1498 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
ARVINDBHAI
AMBALAL PADHIYAR & 2 - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI Ld. APP for Applicant(s) : 1,
None for Respondent(s) : 1
- 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/04/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
present application for leave to prefer appeal is directed against
the judgment and order dated 18.4.2009 passed by the learned Addl.
Sessions Judge, in Sessions Case No. 201/2007, whereby, the accused
have been acquitted for the offence under sec. 363, 366, 376 and 114
of IPC.
2. We
have considered the judgment and reasons recorded by the learned
Addl. Sessions Judge. We have considered the Record and Proceedings
and also heard learned APP for the State.
3. It
appears to us that pending trial, the victim has expired, therefore,
the evidence of the victim has not come on record. Even the father of
the victim was also material witness has expired and his evidence has
also not come on record. The only evidence has come on record was to
the extent that the victim had gone on motor-cycle for filling-up
the petrol and for taking the milk and, thereafter when she was
returning back, the father of the victim wanted to stop her but she
did not stop and went away. Under the circumstances, the ingredients
of kidnapping under sec. 363 or 366 of IPC would not be satisfied. So
far as offence under sec. 376 of IPC is concerned, as observed
earlier the victim has expired, therefore, there was no evidence of
victim. In the medical history, the Doctor has also not supported the
case to the extent that there was any compulsory physical relation.
No semen is found. There was no injury on the private part of the
victim. Even on the aspect of birth date, the ossification test was
not conducted. Under the circumstances, if the learned City
Sessions Judge has found that the prosecution has not been able to
prove the case beyond reasonable doubt, the same cannot be said to be
erroneous.
4. Hence,
leave does not deserves to be granted and, therefore, not granted.
Application stands disposed of accordingly.
(JAYANT
PATEL, J.)
(Z.K.SAIYED,
J.)
mandora/
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