Gujarat High Court
Savitaben W/O Late Bharatbhai Gandhi vs State Of Gujarat on 25 September, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1500 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
===============================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
===============================================================
SAVITABEN W/O LATE BHARATBHAI GANDHI
Versus
STATE OF GUJARAT & ORS.
===============================================================
Appearance:
MR AFTABHUSEN ANSARI(5320) for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Opponent(s)/Respondent(s) No. 2,3,4
MR RAHUL K DAVE(3978) for the Opponent(s)/Respondent(s) No. 2,3,4
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
===============================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 25/09/2024
ORAL JUDGMENT
Page 1 of 13
Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024
NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined (PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
1. Challenge in this appeal filed u/s. 378(1) of the Code of Criminal Procedure, 1973 is to the judgment and order passed by the learned 2nd Addl. Sessions Judge, Bhachau, District:
Kachchh in Sessions Case (New) No.103/2020 [Old Sessions Case No.46/2016] dated 29.08.2022 whereby, the respondents herein, original accused Nos.1 to 3, were acquitted of the charges u/s. 376, 324, 355, 506(2) and 114 of the Indian Penal Code.
2. The facts in brief are as under;
The original complainant (victim), aged about 35 years at the time of alleged incident, filed a complaint (Exhibit-46) before Bhachau Police Station, District: Kachchh-East, Gandhidham on 14.04.2016 bearing I-C.R. No.43 of 2016 against the respondents herein, original accused, inter alia alleging that her husband passed away before about five years on account of illness and that she is residing alone at Village:
Vongh as all her three children, i.e. two daughters and one son, the eldest amongst them being a daughter aged around 14 years, were studying at Rapar / Gandhidham while staying in Hostels.
2.1 It is alleged in the impugned FIR that before about two months, the actual date which the victim does not remember, Page 2 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined at around 1200 hrs., while the victim was at her home, the respondent No.2-accused, who was residing in the same locality, called her on her mobile phone and asked her to come down to his house. When the victim reached his house, the respondent No.2 closed the door of his house, during which time, the respondent No.2 was alone in his house. It is further alleged that thereafter, the respondent No.2 caught hold of the victim and forced himself upon her. The victim made shouts of help, but as there was no one in the surrounding locality, no body came to her rescue. It is alleged that thereafter, the respondent No.2 committed rape of the victim and threatened her with dire consequences, if she discloses about the incident to anybody else. Thereafter, the victim left for her home.
2.2 It is further alleged that on 03.04.2016, the respondent No.3-accused, who happens to be the wife of respondent No.2, came to the house of the victim and demanded Rs.1000/-, which the respondent No.3 had lent to the victim for traveling to Dhordo. When the victim offered the said money to respondent No.3, she did not accept the amount at that time and instead asked the survivor to hand-over the amount by visiting her house. At around 1030 hrs., when the victim went to the house of the respondents, both respondent Nos.3 and 4 were present. The respondent No.3 took the victim to another Page 3 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined room where she questioned her about the alleged incident of rape which had taken place before about two months.
Thereafter, respondent No.4 brought a knife and handed it over to respondent No.3. The respondent No.4 caught hold of the victim, during which time, the respondent No.3 cut the hairs of the victim in order to humiliate her. Thereafter, the respondent No.3 brought a heated iron-press machine and attempted to apply it over the body of the victim. The victim attempted to protect herself from the torture; however, during such time, the heated iron-press machine came in contact with the hands and body of the victim. It is further alleged that thereafter, the respondent No.3 threatened the victim with dire consequences, if she disclosed about the incident to anybody else and thereafter, the victim left for her home.
2.3 On 14.04.2016 the impugned FIR came to be filed against the respondents for the offences u/s. 376, 324, 355, 506(2) and 114 of IPC. Investigation was carried out and statements of witnesses were recorded. As sufficient evidence was found against the respondents-accused, they came to be arrested and at the end of investigation, charge-sheet was filed against them and as the respondents-accused pleaded not guilty to the charge levelled against them, trial was initiated.
3. During the trial, the prosecution had examined 20 Page 4 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined (twenty) witnesses and had relied upon several documentary evidence. However, at the end of trial, the Court below acquitted the respondents-accused of all the charges by granting them benefit of doubt, by passing the impugned judgment and order dated 29.08.2022. Against the said judgment and order of acquittal, the appellant-State has preferred the present appeal.
4. Learned APP assisted by learned advocate Mr. Ansari for the appellant-original complainant submitted that the Court below has committed serious error in acquitting the respondents-original accused of all the charges. He took the Court through the reasoning assigned in the impugned judgment and order and submitted that the Court below has not believed the version of the complainant-victim solely on the ground that the complaint was filed belatedly. However, in her statement recorded under section 164 of Cr.P.C. and also in her deposition before the Court below as PW-1, the complainant-victim has categorically narrated about the involvement of the respondents-accused in the alleged offence. It was, accordingly, urged to quash and set aside the impugned judgment and order of acquittal and to convict the respondents-accused of all the charges levelled against them.
5. Learned advocate Mr. Rahul Dave appearing for Page 5 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined respondent Nos.2 to 4, original accused, submitted that in the impugned FIR, the victim has not mentioned any specific date on which the alleged offence is said to have been committed by the respondents. It is merely averred that before about two months of the date of filing of FIR on 14.04.2016, the alleged offence of rape was committed on her. The victim did not offer any explanation behind the gross delay in filing the impugned FIR. Thus, after considering the oral as well as documentary evidence on record, the Court below did not find substance in the prosecution case and thereby, acquitted the respondents-accused of all the charges levelled against them.
6. Having heard learned advocates on both the sides and on perusal of the oral as well as documentary evidence on record, it transpires that the Court below has not believed the version of the complainant-victim mainly on the ground that the prosecution has failed to establish the actual date on which the alleged offence of rape was committed. In the impugned FIR filed on 14.04.2016, it is alleged that before about two months, as she does not remember the actual date, while she was alone at her home, at around 1200 hrs., she received a call from respondent No.2 on her Mobile Phone asking her to come down to his house. It is alleged that pursuant thereto, the victim went to the house of respondent No.2 and after she entered his house, the respondent No.2 closed the main door.
Page 6 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined At that time, the victim realized that respondent No.2 was alone in his house. It is further alleged that thereafter, the respondent No.2 forced himself upon her and committed the alleged offence of rape.
7. At this juncture, it is pertinent to note that in the impugned FIR, no specific date has been mentioned as regards the commission of the alleged offence of rape by respondent No.2. In fact, a specific averment has been made by the victim that she does not remember the date on which the alleged offence of rape was committed. Even in her deposition before the Court below, the victim has not mentioned the date on which the alleged offence of rape was committed.
8. It is a matter of record that both the victim and respondent No.2 and his family were residing in the same Village at the relevant time. The parents and other relatives of the victim also stayed in the same Village. In spite of that the victim did not inform about the commission of the alleged offence of rape by respondent No.2 either to her parents or relatives / friends or for that matter to the police at the relevant point of time. No plausible explanation has come to the fore as regards the delay of about two months in filing the impugned FIR. In such cases, the natural corollary is to inform the family members and to lodge a police complaint at the Page 7 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined earliest available opportunity. However, in the present case, no such steps have been taken by the victim. In fact, in her cross- examination, the victim has admitted about the non-disclosure of the alleged offence of rape to anybody else. Moreover, as per the say of the victim herself, the alleged incident of rape took place in the month of January, whereas, in the impugned FIR filed on 14.04.2016, it has been averred that the alleged incident of rape was committed before about two months, i.e. in the month of February. Thus, there is serious discrepancy as regards the date on which the alleged offence of rape was committed.
9. It is relevant to note that in her cross-examination the victim also admitted that at the time when the alleged act of rape was committed, the respondent No.2 had used protection, which fact was not disclosed by the victim either in her police statement or in her statement recorded u/s. 164 of Cr.P.C. The victim also admitted that she was having her own Mobile Phone at the relevant time. Considering the aforesaid aspects, this Court is of the opinion that the long and unexplained delay of about two months in filing the impugned FIR and non-disclosure of vital information to the police and in the statement u/s.164 Cr.P.C. goes to the root of the matter and thereby, creates serious doubts about the entire prosecution story. Further, the medical evidence on record in the form of Page 8 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined testimony of the Medical Officer (Exhibit-16) also does not support the prosecution story of the commission of rape.
10. Apart from that there is contradiction in the prosecution case as regards the sequence of events leading into the alleged torture of the victim with heated iron-press. In the initial history given before the Medical Officer on 14.04.2016, the victim had named respondent No.3 as the one who had meted out the torture to her with the heated iron-press, whereas, in the subsequent detailed history recorded by the same Medical Officer late in the evening on the very same day, the victim implicated both respondent Nos.3 and 4. In the above history, the victim stated that on 14.04.2016 both respondent Nos.3 and 4 had come to her house and had asked her to accompany them to their house in connection with some work and thereafter, the alleged torture was meted out. However, in her deposition before the Court below, the victim stated that respondent No.3 had come to her house and had asked her to repay Rs.1000/-, which she had borrowed while they two had travelled to some place and to hand-over such amount by coming to her house. Thus, on the aspect of torture with the heated iron-press also, there are contradictions in the testimony of the victim. Further, the prosecution has also not produced any medical evidence or opinion of F.S.L. to prove the said aspect of torture. Under the circumstances, on the Page 9 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined above count also, the prosecution case fails.
11. The principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the Apex Court has laid down the following principles;
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the Page 10 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
11.1 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
12. In the case of State of Goa V. Sanjay Thakran & Anr., (2007) 3 S.C.C. 75, the Apex Court reiterated the powers of the High Court in such cases. In Paragraph-16 of the said decision, the Court observed as under;
"16. From the aforesaid decisions, it is apparent that Page 11 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
13. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
14. In view of the above discussion and keeping in mind the law governing appeals arising out of a judgment and order of acquittal, this Court finds no substance in the present appeal. We are in complete agreement with the reasoning given by and the findings arrived at by the Court below in the Page 12 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024 NEUTRAL CITATION R/CR.A/1500/2024 JUDGMENT DATED: 25/09/2024 undefined impugned judgment and order and hence, find no reasons to entertain this appeal.
15. In the result, the appeal is dismissed. Bail bonds, if any, stand discharged. Record and proceedings be sent back to the trial Court concerned forthwith.
(A.Y. KOGJE, J) (SAMIR J. DAVE, J) PRAVIN KARUNAN Page 13 of 13 Uploaded by PRAVIN KARUNAN(HC00181) on Tue Oct 15 2024 Downloaded on : Sat Oct 19 21:41:26 IST 2024