Gujarat High Court Case Information System
Print
CR.MA/1550/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1550 of 2010
In
CRIMINAL
APPEAL No. 279 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
BHAGVANBHAI
@ BHAGO CHIMANBHAI GOHEL - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, ADDL.PUBLIC PROSECUTOR
for
Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 02/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
By
means of filing this Application under Section 378(1)(3) of the Code
of Criminal Procedure (“the Code” for short), the
applicant – State of Gujarat has prayed to grant leave to file
Criminal Appeal No.279 of 2010, which is directed against the
judgment and order dated 10.11.2009 rendered in Sessions Case No.92
of 2008 by the learned Additional Sessions Judge and Presiding
Officer, Fast Track Court, Anand, by which the respondent-accused
(“the accused” for short) came to be acquitted of the
offences punishable under Sections 363, 366 and 376 of the Indian
Penal Code (“the IPC” for short).
The
prosecution case as disclosed in the FIR and unfolded during trial
was that;
2.1 The
prosecutrix informed Vasad police that on or about 23.3.2008, she
was aged about 16 years and that she was residing with her parents
at Village Adas; at 5 a.m. in the morning, the accused forcibly
kidnapped her with evil object to cause illicit intercourse, and
thereafter, took her to various places and raped her. Her FIR was
registered. During the course of investigation, statements of
material witnesses were recorded. The accused was arrested. The
medical examination of the prosecutrix as well as of the accused was
carried out. Necessary articles were forwarded to FSL for
examination. After collecting required material for the purpose of
lodgment of chargesheet, chargesheet came to be filed in the Court
of learned JMFC, Anand. Since the offence alleged against the
accused is triable by the Court of Sessions, learned JMFC committed
the case to the Court of Sessions, Anand which was registered as
Sessions Case No.92 of 2008 and the same was made-over to the Court
of learned Additional Sessions Judge and Presiding Officer, Fast
Track Court, Anand (‘the trial Court’ for short) for trial.
The
trial Court framed charge against the accused to which he did not
plead guilty and claimed to be tried. Thereupon the prosecution
examined 11 witnesses and produced 11 documents detailed in
paragraph 6 in the impugned judgment and order. After the
prosecution concluded its oral evidence, the trial Court recorded
further statement of the accused under Section 313 of the Code, and
the accused in his further statement denied generally all the
incriminating circumstances emerged from the record and put to him
by the trial Court and stated that he was falsely implicated in this
case.
3.1 After
appreciating, analysing and scrutinizing the evidence on record, as
well as the submissions made on behalf of both the sides, the trial
Court came to the conclusion that the prosecution failed to prove
its case beyond any reasonable doubt and ultimately recorded
acquittal of the accused which has given rise to this State Appeal.
We have considered the
submissions advanced by Mr.L.B.Dabhi, learned APP for the applicant
– State of Gujarat. We have perused the impugned judgment and
order, and the set of evidence supplied by him during the course of
his submission, so also the R & P of Sessions Case No.92 of 2008
called for by us from the trial Court vide order dated 12.7.2010.
This Court has also undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record with reference to broad and reasonable
probabilities of the case.
Considering
the record and proceedings of the aforesaid Sessions Case, it
transpires that the entire case centres round the evidence of the
prosecutrix, examined at Exh.40 as PW-3. We have gone through her
evidence. Her date of birth is 17.1.1992 and the incident occurred
on dated 23.3.208. Under such circumstances, on the day of the
incident, she was aged 16 years and 2 months. Her occipital test was
also performed and according to the opinion of the Medical Officer,
she was aged between 15 to 17 years.
5.1 About
the incident, the prosecutrix though in her examination-in-chief
stated that during night hours, while she was sleeping, the accused
came near her cot and threatened her and took her to various places
and raped her, however, in her cross-examination, she admitted that
she was in love with the accused.
5.2
Moreover, the prosecution examined Medical Officers, namely, PW-5
Dr.Patel, PW-6 Dr.Vaishnav and PW-7 Dr.Mehta. In the history given
by the prosecutrix before the Medical Officer, she stated that she
was knowing the accused since last three years and they both were in
love. That many a times, sexual intercourse was caused. On
22.3.2008, she of her own will left her house and joined the accused
and they both moved together to different places. That the sexual
intercourse was caused with her consent. The trial Court in the
aforesaid premises came to the conclusion that since the prosecutrix
was not under 16 years of age and as emerged from the record, she
was a consenting party, the trial Court came to the conclusion that
no offence charged against the accused can be said to have been
proved. The trial Court relying upon the evidence of Investigating
Police Officer observed that the prosecutrix even before the
Investigating Police Officer narrated the said facts, which she
narrated before the Medical Officer in form of history. The trial
Court further observed that even considering the conduct of the
prosecutrix, that during the time both the prosecutrix and the
accused moved to different places, she did not try to escape nor she
informed anybody that either she was kidnapped or raped, goes to
suggest that she was consenting party and especially when in the
history before the Medical Officer as well as in her statement
before the Police Officer, she categorically stated that she was
consenting party, the accused deserved acquittal. Moreover,
considering the case of the State of Himachalpradesh
Vs.Sureshkumar (2008)10 SCC 104, it
transpires that the respondent accused therein was facing charge of
the offences punishable under Sections 363, 366 and 376 IPC and
considering the facts and circumstances of the case, the prosecutrix
aged about 16 years had voluntarily accompanied the accused and was
consenting party to sexual intercourse. While rejecting the State
appeal, Hon’ble the Apex Court observed that “since she had
voluntarily accompanied and was a consenting party, the State appeal
had not merits”.
On
overall view of the matter, according to us, the prosecution has
not been able to bring home the charge levelled against the accused
and the complicity of the accused for commission of the offence is
not established as there is no evidence against the accused to
connect him with the alleged crime.
In view of the
unsatisfactory evidence led by the prosecution, we are of the
considered opinion that no illegality or infirmity has been
committed by the trial Court in acquitting the accused of the
offences with which he is charged. We find ourselves in complete
agreement with the ultimate conclusion and the resultant order of
acquittal, as, in our view, no other conclusion was possible except
the one reached by the trial Court.
This
is an acquittal appeal. The principles which would govern and
regulate the hearing of appeal by the High Court against an order of
acquittal passed by the Trial Court have been very succinctly
explained by the Supreme Court in the matter of AJIT SAVANT
MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997
p.3255.
(a)
In an appeal against an order of acquittal, the High Court possesses
all the powers, and nothing less than the powers it possesses while
hearing an appeal against an order of conviction.
(b)
The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and findings
in place of the findings recorded by trial court, if the said
findings are against the weight of the evidence on record, or in
other words, perverse.
(c)
Before reversing the finding of acquittal, the High Court has to
consider each ground on which the order of acquittal was based and
to record its own reasons for not accepting those grounds not
subscribing to the view expressed by the trial Court that the
accused is entitled to acquittal.
(d)
In reversing the finding of acquittal, the High Court has to keep in
view the fact that the presumption of innocence is still available
in favour of the accused and the same stands fortified and
strengthened by the order of acquittal passed in his favour by the
trial Court.
(e)
If the High Court, on a fresh scrutiny and reappraised of the
evidence and other material on record, is of the opinion that there
is another view which can be reasonably taken, then the view which
favours the accused should be adopted.
(f)
The High Court has also to keep in mind that the trial Court had the
advantage of looking at the demeanour of witnesses and observing
their conduct in the Court, especially in the witness box.
(g)
The High Court has also to keep in mind that even at that stage, the
accused was entitled to benefit of doubt. The doubt should be such
as a reasonable person would honestly and conscientiously entertain
as to the guilt of the accused.
In
ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992
SC p.598, Supreme Court has held that in an appeal against
acquittal, the High Court should attach greater weight to
appreciation of evidence by the Trial Judge who had the occasion to
watch the demeanour of the witnesses.
It
is a cardinal principle of criminal jurisprudence that in an
acquittal appeal if other view is possible then also appellate
Court cannot substitute its own view by reversing the acquittal into
conviction, unless the findings of the trial Court are
perverse, contrary to the material on record, palpably wrong,
manifestly erroneous or demonstrably unsustainable. (See Ramesh
Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the
instant case, the learned APP has not been able to point out to us
as to how the findings recorded by the trial Court are perverse,
contrary to material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable.
On
overall appreciation of evidence, this Court is satisfied that there
is no infirmity in the reasons assigned by the trial Court for
acquitting the accused. Suffice it to say that the trial Court has
given cogent and convincing reasons for acquitting the accused and
the learned A.P.P. has failed to dislodge the reasons given by the
trial Court and convince this Court to take a view contrary to
the one taken by the trial Court.
Seen
in the above context, we do not find any valid reason or
justifiable ground to interfere with the impugned judgment
and order acquitting the accused of the offences with which he is
charged.
For
the foregoing reasons, the application fails and accordingly it is
rejected. Resultantly, leave to appeal is refused, and as a
consequence thereof, Criminal Appeal No.279 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.
Upadhyaya, J.)
(binoy)
Top