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State Of Gujarat vs Vishalbhai Danabhai Mer on 26 April, 2024

Author: A.S. Supehia

Bench: A.S. Supehia

                                                                                           NEUTRAL CITATION




     R/CR.MA/6169/2024                                        ORDER DATED: 26/04/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 6169 of
                             2024
             In F/CRIMINAL APPEAL NO. 2607 of 2024
==========================================================
                                STATE OF GUJARAT
                                      Versus
                            VISHALBHAI DANABHAI MER
==========================================================
Appearance:
MS ASMITA PATEL, APP for the Applicant(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE VIMAL K. VYAS

                           Date : 26/04/2024
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. Learned advocate Mr.Parth Tolia has submitted that he has instruction to appear on behalf of the respondent and he would be filing his vakalatnama today. Registry shall accept the same, as and when it is filed.

2. The applicant has preferred the captioned appeal challenging the judgement and order of acquittal dated 30.09.2023 passed by learned 2nd Additional Sessions Judge, Gir Somanth at Veraval in POCSO Case No.9 of 2021, wherein the respondent was acquitted for the offence punishable under Sections 376(2)(F)(J) and 376 (3) of the Indian Penal Code, 1860.

NEUTRAL CITATION R/CR.MA/6169/2024 ORDER DATED: 26/04/2024 undefined

3. The brief facts of the case are that on 01.0.2021 at about 13:00 hours at village Rampara, the victim i.e. daughter of the complainant, who was aged about 12 years, 5 months and 18 days at the time of the incident, was playing near her house below the tree alongwith her sister Hiral and other children of the family. The accused, who was sitting on the wall of his vadi, called the victim under the guise of watching mobile and taken her in a hut situated in vadi and molested against her chastity and committed the offence of rape against her will. The F.I.R. to that effect was registered before the Prabhas Police Station.

4. Learned APP has submitted that learned Judge erred in acquitting the respondent for the offence punishable under Sections 376(2)(F)(J) and 376(3) of the IPC as well as Sections 4, 6 and 18 of the POCSO Act. It is submitted that the learned Judge has failed to appreciate the evidence of PW-1, victim at Exh.16, wherein she has clearly deposed that on the date of incident at about 13:00 hours, she was called by the accused to watch mobile and taken her to the hut in vadi, wherein he committed rape on her against her will. She has referred to the evidence of PW-

NEUTRAL CITATION R/CR.MA/6169/2024 ORDER DATED: 26/04/2024 undefined 3, child witness i.e. sister of the victim at Exh.27 and has submitted that this witness has seen the accused sleeping over the victim and mouth of the victim was gauged. She has further referred to the evidence of the Medical Officer i.e. PW-6, Dr.Ashokbhai Bachubhai Sondarva and has submitted that the same reflects that no marks of injury were found on the body of the victim and has issued M.L.C. certificate (Exh.43). It is submitted that the learned Judge has failed to appreciate the statement of the victim recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.). Hence, it is urged that the present application may be allowed.

5. Learned advocate Mr.Tolia has opposed the present application and has submitted that the trial Court has precisely, after perusing the ocular as well as documentary evidence has acquitted the respondent. Thus, it is urged that the leave to appeal may not be granted.

6. Prima facie, from the appreciation of the aforesaid facts, we find that the trial Court has committed error in appreciating the evidence in its true perspective and it is a fit case to grant leave to appeal.

NEUTRAL CITATION R/CR.MA/6169/2024 ORDER DATED: 26/04/2024 undefined

7. Under the circumstances, and in light of the aforementioned facts, the present application stands allowed.

Sd/-

(A. S. SUPEHIA, J) Sd/-

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