Gujarat High Court
State Of Gujarat vs Brijesh Bharatbhai on 9 April, 2013
Author: M.R. Shah
Bench: M.R. Shah
STATE OF GUJARAT....Applicant(s)V/SBRIJESH BHARATBHAI SHARMA....Respondent(s) R/CR.MA/12459/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 12459 of 2012 In CRIMINAL APPEAL NO. 1338 of 2012 With CRIMINAL APPEAL NO. 1338 of 2012 ============================================= STATE OF GUJARAT....Applicant(s) Versus BRIJESH BHARATBHAI SHARMA....Respondent(s) ============================================= Appearance: MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 09/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Present Criminal Miscellaneous Application under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC ) along with the criminal appeal has been preferred by the applicant State of Gujarat for Leave to Appeal against the impugned judgment and order of acquittal dated 19.05.2012 passed by the learned Additional Sessions Judge, Gandhinagar in Sessions Case No.53 of 2008 acquitting the respondent herein original accused for the offences punishable under Sections 366, 376, 506(2), 467 and 468 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ).
[2.0] That the prosecutrix original complainant lodged a private complaint before the Court of learned JMFC, Gandhinagar against the respondent herein original accused for the offences punishable under Sections 366, 376, 506(2), 467 and 468 of the IPC on 28.12.2007 for the offences alleged to have happened between 28.11.2007 to 17.12.2007. It was the case on behalf of the original complainant that her marriage has taken place with one Dipak Panchalbhai Parmar prior to one year from the date of the incident and as her study was continued, she was staying at her parental home. It was further the case on behalf of the complainant that she was going to the house of her friend Hemlata for study and she was knowing the accused through her friend Hemlata. According to the complainant, on 28.11.2007, accused gave intoxicating substance to victim in drink (sarbat) and taken her at Keshavnagar in unconscious condition, where she was kept upto 01.12.2007 and there the accused committed rape on her against her will by administering threat. It was further the case of the complainant that on 01.12.2007, the accused again gave intoxicating substance to her and by making her unconscious, obtained the signatures of the victim original complainant on blank papers and taken her to Bhachau, where the accused had sexual intercourse with her against her will upto 06.12.2007. It was also the case on behalf of the complainant that from 07.12.2007 to 17.12.2007, she was taken to various places and as soon as she became unconscious, she appeared herself before the police and thereafter she lodged the private complaint before the Court of learned JMFC, Gandhinagar against the accused for the aforesaid offences. That the learned Magistrate passed an order for inquiry under Section 156(3) of the CrPC. That the Investigating Officer after conclusion of the investigation submitted the charge-sheet against the accused in the Court of learned JMFC, Gandhinagar for the offences punishable under Sections 36, 376, 506(2), 467 and 468 of the IPC. As the case was exclusively triable by the Court of Sessions, the learned JMFC, Gandhinagar committed the case to the Sessions Court, Gandhinagar, which was numbered as Sessions Case No.53 of 2008. That the summonses were issued to the respondent accused and after service of the summons, he appeared before the Court. That the learned Sessions Court read over the charge to the accused. The accused pleaded not guilty and he prayed to be tried and accordingly he came to be tried by the learned Additional Sessions Judge, Gandhinagar for the aforesaid offences.
[2.1] To prove the case against the accused, the prosecution examined the following witnesses.
PW No. Exh.
No. Name and particulars of witness / evidence 1 12 Dr. Geetanjali Keshavlal Funkan Medical Officer who examined the body of the accused 2 15 Dr. Rajeshkumar Bhikhabhai Patel Medical Officer who examined the body of the victim 3 18 Deposition of the victim 4 27 Deposition of Kantibhai Rajabhai Shekaliya (father of the complainant) 5 31 Bhikhabhai Bababhai Parmar (Panch Witness of Exh.32 panchnama) 6 33 Jigneshbhai Sureshbhai Solanki (Panch Witness of Exh.32 panchnama) 7 34 Manekji Khodaji (Panch Witness of Exh.35 panchnama) 8 38 Kamleshji Kaluji Thakor (Panch Witness of Exh.35 panchnama) 9 39 Vijaybhai Chinubhai Gurjar (Panch Witness of Exh.40 panchnama) 10 41 Veljibhai Premjibhai (Panch Witness of Exh.42 panchnama) 11 43 Lalitbhai Dhanabhai (Panch Witness of Exh.42 panchnama) 12 53 Akash @ Shailesh Laxmansinh Rajput (Panch Witness of Exh.40 panchnama) 13 56 Vikramsinh Lalsinh Vaghela (PSO who registered the FIR) 14 59 Gafurbhai Nagardas Suthar (Officer who investigated Janva Jog Entry No.267/07 with regard to missing of victim) 15 61 Prakashchandra Kanjibhai Patel (Investigating Officer) 16 73 Jayantilal Harjivandas Pandya (Investigating Officer/PSI, Chandkheda) The prosecution also led and produced the following documentary evidence:
PW No. Exh.
No. Name and particulars of witness / evidence 1 14 Medical certificate of the accused 2 17 Medical certificate of the victim 3 19 Complaint 4 28 Janva Jog application with regard to missing of the victim 5 32 Panchnama of the place where accused stayed with the victim 6 35 Panchnama of seizure of cloths of the victim 7 40 Panchnama of house at Keshavnagar where accused stayed 8 42 Panchnama of house at Shikra where accused stayed 9 60 Panchnama of seizure of cloths of accused 10 74 Note regarding dispatch of muddamal to FSL 11 75 Acknowledge of receipt of muddamal by FSL 12 76 Letter written by FSL to PSI, Adalaj 13 77 Analysis report of FSL 14 78 Report of Serological Department, FSL That after closure of the evidence on behalf of the prosecution, further statement of the accused was recorded under Section 313 of the CrPC in which he specifically stated that he is innocent and has not committed any offence as alleged. That thereafter the learned Judge heard the learned advocate appearing on behalf of the prosecution as well as the defence and on appreciation of entire evidence on record, the learned Judge by impugned judgment and order has acquitted the accused for the offences punishable under Sections 366, 376, 506(2), 467 and 468 of the IPC by holding that the prosecution has failed to prove the accused giving intoxicating substance in the drink to the victim whereby the victim became unconscious and the accused committed rape on the victim against her will and wish. On considering the entire evidence on record, the learned Judge has specifically given the finding that as such the victim was the consenting party and she ran away voluntarily and after she was caught, she has filed the false complaint against the accused (Exh.19) in the Court of learned JMFC, Gandhinagar and consequently the learned Judge has, by impugned judgment and order acquitted the accused.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the applicant State of Gujarat has preferred the present application for Leave to Appeal along with Criminal Appeal under Section 378 of the CrPC.
[3.0] We have heard Ms. C.M. Shah, learned APP appearing on behalf of the applicant State of Gujarat at length. Learned APP has taken us through the entire evidence on record, more particularly, the evidence/deposition relied upon by the prosecution and we have considered the same in detail. We have considered and gone through the entire evidence on record which has been produced by the learned APP and we have re-appreciated the entire evidence on record.
[3.1] We have thoroughly considered the deposition of the prosecutrix as well as the original complainant at length and in detail. It is required to be noted that as, as such there is a marriage between the accused and the prosecutrix registered before the office of the Sub-Registrar. There are affidavits of the prosecutrix affirmed before the Notary. It appears from the deposition that the accused and the prosecutrix have travelled from one place to another place and therefore, it is not believable that all throughout the prosecutrix was unconscious as alleged. Even considering the photograph of marriage produced at Exh.26, it does not seem that the prosecutrix was unconscious and/or not in fit state of mind. Considering the photograph it appears that she has given photograph voluntarily and with smiling face. It is also required to be noted that even the original complaint/janva jog information given by the father of the prosecutrix was with respect to running away of the prosecutrix. It appears that despite marriage, the prosecutrix ran away with the accused and thereafter when she was caught by the police along with the accused on 17.12.2007, thereafter, after a period of 11 days, a private complaint has been filed by her. Considering the aforesaid facts and circumstances of the case, it cannot be said that the learned Judge has committed any error in acquitting the respondent for the offences punishable under Sections 366, 376, 506(2), 467 and 468 of the IPC, which calls for interference of this Court in exercise of powers under Section 378 of the CrPC. On re-appreciation the entire evidence on record, we are also of the opinion that it cannot be said that the accused has committed any offences as alleged for the offences punishable under Sections 366, 376, 506(2), 467 and 468 of the IPC. It also appears to us that all throughout the prosecutrix ran away with the accused voluntarily and she has moved/travelled with the accused from one place to another place and therefore, her story that every time the accused was giving the intoxicating substance in drink/soda/sarbat is not believable at all and the said story seems to be a got up one only with a view to save herself when despite the marriage, she has subsequently ran away with the accused and she was caught. The view which is taken by the learned Judge is plausible and the finding given by the learned Judge are on appreciation of evidence which are neither perverse nor contrary to the evidence on record and therefore, the same are not required to be interfered by this Court in exercise of powers under Section 378 of the CrPC.
[3.2] 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. [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.
[3.3] In the case of Ram Kumar vs. 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."
[3.4] 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 is 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.
[3.5] 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 CrPC, no case is made out to interfere with the impugned judgment and order of acquittal.
[4.0] In view of the above and for the reasons stated above, present application for Leave to Appeal fails and same deserves to be dismissed and is, accordingly, dismissed. In view of dismissal of the application for Leave to Appeal, Criminal Appeal also deserves to be dismissed and is, accordingly, dismissed.
(M.R.SHAH, J.) (S.H.VORA, J.) Ajay Page 8 of 8