Gujarat High Court
Mamtaben vs State
Author: Sonia Gokani
Bench: Sonia Gokani
CR.RA/524/2006 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 524 of 2006
For
Approval and Signature:
HONOURABLE
MS JUSTICE SONIA GOKANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MAMTABEN
W/O. DINESHBHAI BALADHA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance
:
MR
PRAVIN GONDALIYA for Applicant(s) : 1,
MR JK SHAH, ADDL. PUBLIC
PROSECUTOR for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
MR NIKUNJ D BALAR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 03/02/2012
ORAL
JUDGMENT
1. This is a revision preferred against the order and judgment of learned Additional Sessions Judge 10th Fast Track Court dated 14.7.2006 in Sessions Case No.5 of 2005.
2. The case is arising in the following factual background:-
2.1 The complaint has been lodged against present respondent No.2 on 24.11.2004 before Jamkandorna police station registered as CR No.I-89 of 2004. On due investigation it culminated into filing of chargesheet against present respondent. When committed to the Court of Sessions, charges were framed against the respondent, particularly after prosecution examined 11 witnesses to prove charges levelled against the accused. The Court recorded further statement of the accused. He also chose to examine 6 witnesses in his defence and after hearing both the sides the Court concluded the same acquitting the respondents of all the charges levelled against him. This order and judgment of the Sessions Court is in challenge before this Court by way of the present revision preferred by original complainant raising various grounds in this petition preferred under Section 397 read with Section 401 of the Criminal Procedure Code.
3. It is vehemently contended by learned advocate Mr. Gondalia appearing for the original complainant that mere delay in filing complaint cannot be a ground for the Court to acquit the respondent when the delay has been sufficiently explained not only in the complaint itself but in the depositions of all the witnesses examined by the prosecution.
4. He has further submitted that considering the fact that this was the matter of prestige for the family as in allegation of rape on the person of the prosecutrix, if there is delay, that should not be fatal to the prosecution. He further urged the Court that the entire evidence would lead the Court to conclude evidence against the accused and there is no reason why a lady would falsely lodge any complaint in this regard. He urged the Court that this is a fit case for the Court to remand the matter for re-appreciation of the entire evidence. He urged the Court to remand the matter for re-appreciation of the entire evidence.
5. Learned APP Mr. J.K.Shah has pointed out that no appeal has been preferred and the State has chosen to take a conscious decision in this regard considering the overall circumstances and the evidence that has come on the record.
6. Learned advocate Mr. N.D. Balar appearing for the respondent No.2 has vehemently urged that not only there is delay of 14 days but the conduct of the prosecutrix also did not inspire confidence. He also urged that the house of the prosecutrix is situated in thickly populated area and her close relatives were also residing in the same building. Not only she has not raised any alarm but there is routine life in the post incidental days. Moreover, lodging of the complaint at midnight on the 14th day is also very strange phenomenon not explained by the prosecution. Learned advocate has further submitted that the defence that has been put-forth is of the amount of Rs.15,000/-, which was due from husband of the prosecutrix and only with a motive to see that the amount is not to be paid to the accused that the false complaint has been filed. He sought to rely upon following three judgments:-
(1) Aman Kumar and another vs. State of Haryana reported in 2004 Cri.L.J. 1399.
(2) Masauddin Ahmed vs. State of Assam reported in AIR 2010 SC 3813.
(3) Johar and ors. vs. Mangal Prasad and anr. reported in AIR 2008 SC 1165.
7. On duly considering the submission of both the sides and on giving due regard to the material on record, this revision is decided.
8. At the outset, it requires to be noted that this Court is deciding the fate of this petition in the revision application and not in the Criminal Appeal. As laid down, time and again by this Court, and by the Apex Court and as is provided under the statute, the scope of the revision is very restricted, particularly, while deciding the matter where the trial Court has acquitted the accused. The Apex Court in the case of Johar and ors. vs. Mangal Prasad and anr (supra) has reiterated this principle in the following manner:-
"17.
The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally restricted, particularly when it arises from a judgment of acquittal."
9. In light of this discussion, the judgment of the trial Court as well as the evidence that has been adduced before it shall have to be considered.
10 At this stage, it would be necessary to make a mention of the judgment of State of Punjab vs. Gurmit Singh reported in 1996 (2) SCC 384, wherein the Court has emphatically laid down that no corroboration is required to the deposition of prosecutrix in the matter of rape and on some minor discrepancies deposition of the prosecutrix cannot be discarded.
Being fully conscious of this decision of the Apex Court, examination is being made to the deposition of prosecutrix in the instant case and on appreciation of the same, it can be noted that on the date of incident i.e. on 10.11.2004 at around 8.00 p.m. when the prosecutrix was all alone in her house and resting, the accused tress passed the house and had committed the offence of rape. This was done without the consent and against the will of the prosecutrix and this act, therefore has been complained against and had been examined by the Court. It needs to be noted here that though this factum had been revealed by the prosecutrix to her husband on that very day, his husband, who had returned from work complaint was not filed for the reason that, that was the period of festivities particularly being the day of 'Dhanteras', which is one of the important days of festivals of Hindus. It was difficult for them to lodge a complaint, particularly considering the prestige of the family as during the Diwali period all the members of the family would be getting together. As can be also further noted from the record that the Panchnama of the person of the victim and that of the scene of offence has been done simultaneously and that also has been seriously questioned by the trial Court. Be that as it may, as can be seen from the judgment of the trial Court, what is weighed with this Court is the late filing of the complaint and the conduct of the prosecutrix in the post incidental period. It is reiteratively referred to by the Court that it is unusual for a lady to get engaged into routine chores and also to be a part of the festival if such a serious offence has occurred. Moreover, it would be very unlikely for the husband to act and to respond to it particularly after a lapse of 14 days. Moreover, what further weighed with the Court is the fact that though she claimed not to have known the accused initially, and therefore, he was not a stranger for her when he entered the house. She had referred to him to the husband by name and his identity was not questioned later on so as to require the Test Identification Parade. Court, of course, did not believe the version of the defence witness to hold that for the paltry sum of Rs.15,000/- there was any motive in lodging false complaint of rape. Nonetheless, the Court found all charges levelled against the accused unsustainable.
On overall consideration of the sequence of evidence that had taken place right from the day on which the incident took place and the manner in which the witness of the prosecution conducted themselves, the Court when did not find it relatable to hold charges as proved, in such eventuality, there is very minimum scope that this Court finds in upholding the version of the revisionist and remanding the matter back to the trial Court for re-appreciation.
11. In the revision, this Court is not to replace its own findings with those of the trial Court. Merely because some other findings could have been possible from the material on record and interpretation as made from evidence could have been differently made, could also not be the ground for this Court to interfere with the findings. Unless such findings are so incoherent and palpably wrong so as to conclude grave infirmity or error on the part of the trial Court, no interference in revision is possible.
12. It would be worthwhile to note here that the Supreme Court in the recent decision in the case of Musauddin Ahmed vs. State of Assam (supra), did not uphold the the conduct of the prosecutrix. In the case of Bhaiyamiyan @ Jardar Khan & Anr. vs. State of Madhya Pradesh reported in AIR 2011 SCW 3104, there was a delay of 60 hours in filing the FIR. From the overall conduct of the complainant, Court did not accept the explanation of delay in filing the complaint.
However, in criminal trial, each matter is to be considered on the basis of evidence that comes before the Court and in the instant case, if nothing could be pointed out to this Court, which would necessitate interference with the orders of the trial Court and to accede to the request of allowing the revision. Resultantly, this revision is dismissed. Rule is discharged.
(Ms. Sonia Gokani, J. ) sudhir