Gujarat High Court
State Of Gujarat vs Jenaji Babaji Thakor on 14 June, 2023
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2057 of 2021
In R/CRIMINAL APPEAL NO. 169 of 2021
With
R/CRIMINAL APPEAL NO. 169 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
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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 or any order made thereunder ?
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STATE OF GUJARAT
Versus
JENAJI BABAJI THAKOR
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Appearance:
PUBLIC PROSECUTOR for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 14/06/2023
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NEUTRAL CITATION
R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023
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ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE M. K. THAKKER) Order in R/CRIMINAL MISC.APPLICATION NO. 2057 of 2021 As record and proceedings was received pursuant to the order dated 10.04.2023, this Court deems it fit to grant Leave to Prefer an Appeal. Hence, the application for Leave to Prefer an Appeal is hereby allowed.
Order in R/CRIMINAL APPEAL NO. 169 of 2021
1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 is preferred against the judgment and order of acquittal passed by the learned Special Judge (POCSO), Gandhinagar in Special (POCSO) Case No.24 of 2017 dated 26.2.2020 acquitting the respondent from the offence punishable under Sections 363, 366, 376, 504 and 506(2) of the Indian Penal Code, Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Atrocities Act') and Sections 4 and Section 6 of the The Protection of Children from Sexual Offences Act, 2012.('POCSO'). Page 2 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023
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2. It is the case of the prosecution that complainant is residing at Village: Aarsodiya, Taluka: Kalol, District:
Gandhinagar and doing the labour work. The complainant having one son and one daughter. That birth date of the daughter who is prosecutrix is 10.7.2000. It is the case of the complainant that daughter enticed by respondent-accused on 20.3.2017, the age of the prosecutrix was 16 years and 8 months at the time of offence. It is further the case of the complainant that prior to the incident, earlier also, the girl was kidnapped by the respondent-
accused and due to intervention of the members of society, the girl was brought back and custody of the girl was handed over to father i.e. to the complainant. That on the day of the incident i.e. 20.3.2017, girl was missing and on inquiring, it is found that the girl had taken away Rs.20,000/- from the house. When the complainant had tried to search the girl, he came to know that respondent-accused is also not available. Page 3 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023
NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined Therefore, the offence was registered before the Kalol Taluka Police Station being I-CR.No.49 of 2017 for the offence punishable under Sections 363, 366, 376, 504 and 506(2) of the Indian Penal Code, Sections 3(w)(i), 3(2)(v) and 3(2)(va) of 'the Atrocities Act' and Sections 4 and 6 of the 'POCSO' Act.
3. On setting Criminal Law in motion, the investigation was carried out, the prosecutrix was traced out and minor girl denied to join with the company of the father and therefore, she was sent to Nari Vikas Gruh and after recording the statement of the prosecutrix under Section 164 of the Criminal Procedure Code as well as following due procedure, the charge-sheet came to be submitted before the Special Court and same was numbered as Special (POCSO) Case No.24 of 2017.
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4. Learned Special Court framed the charge against the respondent-accused below Exh.3 for the offence punishable under Sections 363, 366 and 376 of the Indian Penal code and Sections 4 and 6 of the 'POCSO' Act, however, it seems that learned Judge committed an error in not framing the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Atrocities Act'). The charge was read over and explained to the respondent-accused below Exh.4. The respondent-accused pleaded not guilty for the offence and claimed to be tried. In order to bring home the guilt of the accused, the prosecution had examined 23 witnesses and produced 29 documentary evidences.
5. Learned Public Prosecutor has examined before the Special Court following witnesses:
Number Name of P.W. Relation Exh. 1 Complainant / Father of Complainant 6 the victim Page 5 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined 2 Victim Victim 10 3 Prafulbhai Kantibhai Panch Witness 12 Parmar 4 Umedbhai Kantibhai Panch Witness 14 Solanki 5 Kuvarben Narsinhbhai Panch Witness 16 Chauhan 6 Rajubha Parbatsinh Zala Panch Witness 28 7 Mukeshkumar Amratlal Panch Witness 30 Prajapati 8 Indrajitsinh Divansinh Witness 33 Solanki (In Charge Principal, Shah Samarben Mansukhram Vidyalaya, Katosan, Taluka & Dist. Mehsana) 9 Hiralben Vasudevbhai Police Witness 36 Chaudhari 10 Kiritbhai Chakulal Jani Witness 37 (Dy. Mamlatdar, Jotana, District: Mehsana) 11 Dr.Vijaybhai Kantilal Medical Officer, Civil 42 Chauhan Hospital, Gandhinagar 12 Maheshbhai Hirabhai Police Witness 54 Desai 13 Dr.Latikaben Ravinder Gynecologist, Civil 55 Mehta Hospital, Gandhinagar 14 Dr.Nilaben Rameshbhai Radiologist, GMERS, 56 Gandhi Medical College, Gandhinagar 15 Mother of the victim Witness 58 16 Dr.Jayshankar Purshottam Tutor, Dental 60 Pillai Hospital, Page 6 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined Ahmedabad 17 Brother of the victim Witness 64 18 Uncle of the victim Witness 66 19 Diptiben Dineshbhai Witness 68 Parmar 20 Uncle of the Victim Witness 70 21 Babubhai Mansungbhai Police officer who 71 Patel (PSI) has taken complaint 22 Rajesh Gopaldas Bhavsar Investigating Officer 73 (Dy.S.P.) 23 Dalpatsinh Ratansinh Officer who 80 Vaghela (ASI) registered the crime
6. On completion of examination of the witnesses, the closing pursis came to be filed below Exh.84. Thereafter, learned Judge has explained the circumstances and incriminating material put by the prosecution against the respondent-accused and recorded his further statement under Section 313 of the Code of Criminal Procedure, 1973 where the accused had denied the charges levelled against him and pleaded false implication for the offence. Page 7 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023
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7. Thereafter, learned advocates for the parties were heard by the Special Court, Gandhinagar and dealt with documentary evidences as well as oral evidence in the form of depositions and after discussing the same with reasoning, has come to the conclusion that prosecution failed to establish the case beyond reasonable doubt against the respondent- accused and after appreciating the evidence on record, learned Special Court observed that the evidence does not inspire confidence and therefore, respondent is entitled to be acquitted from the charges levelled against him.
8. Learned Special Court further observed that prosecutrix and accused married with each other and child also begotten out of said wedlock. In view of the above, learned Special Court acquitted the respondent-accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code Page 8 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined and Sections 4 and 6 of the 'POCSO' Act.
9. Heard the learned APP for the State.
10. Learned APP, Ms.C.M.Shah, relied upon the oral evidence and assailed the judgment of the learned Special Court, Gandhinagar in Special (POCSO) Case No.24 of 2017. Ms.Shah, learned APP submitted that despite ample evidence produced by the prosecution, the learned trial Court has committed grave error in acquitting the respondent-accused from the charges levelled against him. Ms.Shah, learned APP further submitted that the complainant was examined below Exh.6 at PW-1, namely, Ramanbhai Chhaganbhai Solanki, who deposed before the Court that his minor daughter was abducted by respondent-accused in order to commit rape. This witness further deposed that after one day, the daughter was produced by the police officer. He also produced the documentary Page 9 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined evidences in form of Leaving Certificate, which was exhibited below Exh.9 from where age can be ascertained of the prosecutrix. Prosecution also relied on the evidence of Principal of School i.e. PW-8 to establish the age of prosecutrix. Learned APP, Ms.Shah, further drew the attention of this Court to the evidence of the prosecutrix, who was examined below Exh.10, PW-2, also supports the case of the accused. Learned APP, Ms.Shah, further relied upon the evidence of PW-10, Exh.37, namely, Kiritbhai Chandubhai Jani, who was Deputy Mamlatdar and issued the certificate with regard to the caste of the complainant. Learned APP also relied upon the evidence of the Medical Officer at Exh.42, PW-11, Dr.Vijay Kantilal Chauhan, who had examined the prosecutrix and issued the certificate at Exh.44 and submitted that through this witness, the prosecution established the case of the rape committed by the respondent-accused. Learned APP, Ms.Shah, further Page 10 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined drew the attention of this Court to the evidence of the Dr.Nilaben Rameshbhai Gandhi, who was examined below Exh.56, PW-14, through this evidence, the prosecution had tried to submit the age of the prosecutrix, which is referred in the x-ray taken by the Radiologist wherein, the age is mentioned more than 18 years and less than 20 years. The prosecution further relied upon the evidence of the mother, who was examined below Exh.58, PW-15 and submitted that the victim did not take any articles from the house and at present, she is staying with the accused. The prosecution further relied on the evidence of Dr.Jayshankar Purshottambhai Pillai, who examined the teeth of the proseuctrix to ascertain the age of the victim. In the evidence of the aforesaid witness, the age is mentioned more than 16 years and less than 25 years. The prosecution further relies upon the evidence of brother of the prosecutrix below Exh.64, PW-17, wherein it comes on the record that after Page 11 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined registering of offence again prosecutrix eloped with the respondent-accused on the day of the recording of the evidence of this witness, the prosecutrix and respondent-accused were staying together. The prosecution further relies upon the evidence of the uncle of the prosecutrix who also confirms that after the production of the prosecutrix by the Police Officer, in this offence, again the proseuctrix eloped with the respondent-accused for which separate offence was registered. The prosecution further relies upon the evidence of PW-21, Exh.71, Babubhai Mansinh Patel, who was serving as Police Sub Inspector at the relevant point of time. Learned APP further relied upon the evidence of PW-22, Exh.73, namely, Rajeshbha Gopaldas Bhavsar, who was serving as Dy.S.P. and investigated the offence and submitted that though panch witnesses were declared hostile and through the evidence of this witness, the said panchnama was proved. At the end, learned APP, Page 12 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined Ms.Shah, submitted that there was no material discrepancies found during the recording of the evidence. The learned Special Court committed grave error in acquitting the respondent-accused. Ms.Shah, learned APP further submitted that prosecution had proved the case beyond reasonable doubt. However, learned trial Court had not appreciated the evidence in it's true and correct perspective. Therefore, learned APP, Ms.Shah, prayed to allow this appeal and convict the respondent-accused for the charges levelled against him.
11. That on the other hand, though 'Notice' was issued in leave to appeal, respondent was not represented by any of the advocate. However, Report was submitted by Dy.S.P. Mr.V.J.Chaudhary, SC & ST Cell, dated 26.7.21 informing to the office of the Government Pleader that on recording the statement of the complainant, namely, Ramanbhai Chhaganbhai Page 13 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined Solanki, it transpired that the victim and accused were staying together and the complainant had also accepted the respondent-accused as son in-law and he does not want to proceed further.
12. This Court has taken the complete and comprehensive appreciation of all vital views of the case and entire evidence on record with reference to broad and reasonable probabilities of the case. That to prove the age of the prosecutrix, the reliance was placed on the Leaving Certificate through the evidence of the complainant i.e. PW-1 and In charge Principal, Mr.Indrajitsinh Solanki, PW-8. The prosecution also relies upon the evidence of Medial Officers, namely, Dr.Vijaybhai K. Chauhan, PW-11, Dr.Latikaben R. Mehta, Gynecologist, PW-13, Dr.Nilaben R. Gandhi, PW-14 and Dr. Jayshankar P. Pillai, Tutor, Dental Hospital, PW-16. This Court had gone through the evidence of all witnesses to ascertain the age of the Page 14 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined prosecutrix. The Leaving Certificate produced through the evidence of the complainant shows that prosecutrix was aged around 16 years and 8 months as in the Leaving Certificate, the date of birth is mentioned as 10.07.2000. However, evidence of the independent witnesses i.e. Medical Officer, Gynecologist, Radiologist that age is differing from 18 to 25 years. All these evidences if considered together then it is difficult to come to the conclusion with regard to the age of the prosecutrix to hold that she is a minor. As all the evidence to prove the age produced by the prosecution differs from one to another. This Court is finding difficult to conclude the age of the prosecutirx independently If individual version of these important witnesses be considered, it does not tally or reconcile on the material aspect of age of the victim.
Therefore, we find it difficult to accept the evidence of the complainant and other witnesses to Page 15 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined convict the accused in absence of other acceptable evidence on record.
13. Prosecution relies on the evidence of PW-1, Ramanlal Chhaganbhai Solanki, father of the prosecutrix who had deposed in his evidence that prior to incident, prosecutrix eloped with respondent- accused and society members brought victim back then again victim eloped with respondent-accused, the police had brought the prosecutrix on the same day from Katosan Dhanpura alongwith the respondent- accused. This witness further deposed that after the daughter was traced out, she denied to join the company of the father and therefore, she was sent to Nari Vikas Gruh. The evidence of this witness further tried to be corroborated with the evidence of the other family members, namely, mother, who examined below Exh.58, the brother, who examined below Exh.64 and uncle, who examined below Exh.66. From Page 16 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined the evidence of the aforesaid witnesses, it transpired that prior to the date of incident, the victim had eloped with the boy. However, due to intervention of the society members, the girl was brought back. Again the victim eloped with the respondent-accused where present 'FIR' was registered and on the same day of the 'FIR', she was brought back and sent to the Nari Vikas Gruh. It further transpired that after her evidence was recorded in this offence again the victim was eloped and both were married as well as having one child out of the wedlock. On the date of recording the evidence of the aforesaid witness, the girl was staying with the respondent-accused. That from the communication addressed by Dy.S.P., SC and ST Cell dated 26.7.2021, it also transpired that as on date, their relationship is accepted by the complainant- father and complainant shown his desireness not to proceed further. In view of the aforesaid evidence of the witnesses, it transpired that as on date, the victim Page 17 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined is staying with the respondent-accused and having the child.
14. That after analyzing, sifting and assessing the evidence on record with particular reference to its trustworthiness and truthfulness by a process of dispassionate judicial scrutiny, this Court finds that there was no evidence to connect the accused with the crime. Prosecution failed to prove the case beyond the reasonable doubt. Therefore, learned Special Court had rightly acquitted the respondent from the charges levelled against him. In our view, acquittal of the respondent can hardly be regarded as illegal or erroneous on the basis of the evidence on record.
15. We have gone through the ratio laid down in the decision of the Apex Court in the case of Harijana Thirupala and others V/s. Public Prosecutor, High Court of A.P. reported in AIR 2002 Supreme Court p. 2821 and in the case of Kunju Page 18 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined Mohammed V/s. State of Kerala reported in JT 2003 (7) SCC 114 .The Apex Court has held as under:
"Doubtless the High Court in appeal either against an order of acquittal or conviction as a Court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial Court would have proceeded to record a conviction: a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity." Page 19 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023
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16. This Court has also considered the ratio laid down by the Apex Court in the case of Jafarudheen and others V/s. State of Kerala reported in (2022) 8 SCC 440 more particularly para- 25, which is reproduced herein below.
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters".
17. This Court has also gone through the decision rendered by the Supreme Court of India in the case of Ramesh Babulal Page 20 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined Doshi vs The State Of Gujarat reported in 1996(9) SCC 225 para-7 reproduced herein below.
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly Page 21 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not".
18. Lastly in the case of Mahavirsinh V/s. State of Madhya Pradesh reported in 2016 (10) SCC 220, the Hon'ble the Apex Court in para-12 of the said decision, has reminded the Hon'ble Court to remain very cautious in interfering with an appeal against acquittal unless there are compelling and substantial Page 22 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023 NEUTRAL CITATION R/CR.MA/2057/2021 JUDGMENT DATED: 14/06/2023 undefined grounds to interfere with the order of acquittal.
19. It is, therefore, that this Court in acquittal appeal will be slow in interfering with the findings of fact arrived at by the learned trial Judge on scrutiny of evidence on record and, when two views are possible even on re-appreciation of evidence, benefit of doubt must go in favour of the accused as per the settled law, and therefore, in the present case, no infirmity in appreciating the evidence by the learned Special Judge is found and, therefore, the order of acquittal passed by the learned Special Court does not require any interference by this Court.
20. In the result, the appeal fails and is dismissed. Muddamal, if any, to be disposed of in terms of the directions given by the learned Judge in the judgment impugned in the appeal. Bail bond stands cancelled. Record and proceedings be sent back to the court concerned forthwith.
(UMESH A. TRIVEDI, J) (M. K. THAKKER,J) ASHISH M. GADHIYA Page 23 of 23 Downloaded on : Sat Sep 16 20:14:52 IST 2023