Gujarat High Court
State Of Gujarat vs Rajeshbharthi Vilashbharthi on 15 April, 2013
Author: M.R. Shah
Bench: M.R. Shah
STATE OF GUJARAT....Applicant(s)V/SRAJESHBHARTHI VILASHBHARTHI GOSWAMI R/CR.MA/14216/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 14216 of 2012 In CRIMINAL APPEAL NO. 1556 of 2012 =========================================================== STATE OF GUJARAT....Applicant(s) Versus RAJESHBHARTHI VILASHBHARTHI GOSWAMI & 1....Respondent(s) ================================================================ Appearance: MS CM SHAH APP for the Applicant(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 15/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.H.VORA)
1. Feeling aggrieved and dissatisfied with the judgment and order dated 25.07.2012 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No.87 of 2011 whereby, the respondents accused Nos.1 and 2 came to be acquitted for the offence punishable under Sections 363,366,376 and 114 of the Indian Penal Code, the applicant-State of Gujarat preferred this application to grant leave to appeal as provided under Section 378(1)(3) of the Code of Criminal Procedure (for short, the 'Code').
2. Briefly stated, it is the case of the complainant Gigabhai Bhikhubhai Mori that he lodged complaint before Savarkundla Rural police station being I-C.R.No.61 of 2011 against the present respondents accused Nos.1 and 2 for the aforesaid offences. It is the case of the prosecution that on 23.08.2011 at about 3:00 hrs. (in the morning), the respondents accused Nos.1 and 2 kidnapped daughter of the complainant's uncle aged 17 years by coaxing and enticing her under the temptation of marriage with an intention to commit illicit intercourse with her and took her Bokarva to Badhada and Badhada to Surat and thereafter, accused No.1-Rajesh took victim Dhakuben at Mount Abu where, the victim was harassed and was forcibly raped.
3. In pursuance to the complaint lodged by the complainant, the Investigating Agency collected evidence in the form of statement of various witnesses and gathered documentary evidence and after having found sufficient material against the respondents accused Nos.1 and 2, chargesheet came to be filed in the Court of the learned Judicial Magistrate First Class, Savarkundla. As the said Court lacked jurisdiction to try the offence as aforesaid, it committed the case to the Sessions Court as provided under Section 209 of the Code. Upon committal of the case, the learned trial Judge framed charge against the respondents- accused Nos.1 and 2 for the offence, as aforesaid, below Exh.5. Both the accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge, the prosecution has examined nine witnesses as well as produced and proved documentary evidence consisting of complaint, panchnama of the scene of offence, mobile call details, copy of the school Leaving Certificate of the victim and such other relevant documentary evidence.
5. On conclusion of the trial, both the accused were generally examined under the provisions of Section 313 of the Code and in their further statement, both the accused denied their involvement in the crime and further stated that false case has been lodged against them. After hearing both the sides and after analysis of the evidence adduced by the prosecution before the trial Court, both the respondents accused came to be acquitted from the charge of offence framed against them.
6. We have minutely examined the oral and documentary evidence adduced by the prosecution before the trial Court and we have heard the submissions of learned A.P.P. Ms.C.M. Shah, appearing for the applicant-State.
It is evident from the record that at the time of incident, the victim girl was aged about 17 years 7 months and 8 days old (D.O.B. 05.01.1994). According to the evidence of the prosecution witness, the victim became unconscious after taking Prasad after returning from the temple and therefrom, she was taken at Surat. The incident has been witnessed by the complainant. However, the complaint came to be lodged on 29.08.2011. For such delay, no sufficient explanation has been tendered by the prosecution witness. If at all, such incident has been seen by the complainant and still however, the complainant chosen not to file complaint for 6 days which does not appear to be believable or acceptable or natural conduct of any witness. Apart from that, we have minutely examined the evidence of the victim recorded below Exh.27. In para 4 of her deposition, she has deposed that she regained consciousness at Surat in the house of accused No.2 and at that place, accused No.2 gave some drink and she became again unconscious and when she regained consciousness, she found herself at Mount Abu. In paragraph No.5, she deposed that as she got time, she called at her home and according to her deposition, her family would have file the complaint and, therefore, police come at Mount Abu. In cross-examination, she, in terms, deposed that though she made two or three calls, however, she did not give address of the place where, she was. As such, victim has deposed the facts as to occurrence of the incident first time in the Court and she has not narrated anything before the police when her statement was recorded. Meaning thereby, she has made a lot of improvement. In para 13 of her cross-examination, she has shown ignorance as to whether when she was abducted, she was compelled to sit in the car or in the motorbike. In paragraph No.17, she has admitted that on the date of incident, almost all the people of the village gathered to celebrate the birthday of Lord Krishna. At the time, when such festival was celebrated by the village people, the victim girl came to be abducted. In para 24 of the deposition of the victim, she has stated that when the police came at Mount Abu, she was sitting on the wall of the hotel. It is also stated by her that as she was crying, person sitting on the counter helped her and further got her connected over telephone to her family members. At that time, she has informed the said person that as she astrayed, she requested to connect number of phone of her family which she supplied. There was no reason for the victim to speak lie that she has been astrayed and at that time, she has an opportunity to tell truth before the person sitting on the counter of the hotel that she has been kidnapped or she has been kept there under compulsion. No such attempt has been made on the part of the victim girl, who is aged about 17 years and 7 months. Therefore, her evidence does not inspire any confidence in our mind as to occurrence of the incident in question. On overall re-appreciation of the deposition of the victim and also evidence of complainant, both the stories narrated by both the witnesses i.e. complainant and victim, do not inspire any confidence in our mind so as to believe occurrence of the incident in the manner stated by both these witnesses. Looking to the self-contradictory evidence of the victim herself and considering the conduct of the complainant and the victim, we are not in a position to accept the occurrence of the incident, as alleged by the prosecution witnesses and, therefore, the learned trial Judge has rightly recorded findings of acquittal as the prosecution has failed to establish the essential ingredients of offences for which the respondent-accused were charged and tried and thus, we do not find any infirmities or compelling reason to interfere with the order of acquittal recorded by the learned trial Judge.
8. Lastly, the appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Keeping in mind the evidence adduced before the trial Court and also settled principle as to scope of appeal against the acquittal order there are no good reasons to interfere with the findings of the trial Court as there is no iota of evidence to infer that the respondent-accused have committed an act of rape as alleged.
9. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the 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. (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 learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
10. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
11. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
12. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
13. In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No.14216 of 2012 fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, Criminal Appeal No.1556 of 2012 also deserves to be dismissed and is accordingly dismissed.
(M.R.SHAH, J.) (S.H.VORA, J.) Hitesh Page 9 of 9