Gujarat High Court
State Of Gujarat vs Vanrajsinh Bhupatsinh on 20 March, 2013
Author: M.R. Shah
Bench: M.R. Shah
STATE OF GUJARAT....Applicant(s)V/SVANRAJSINH BHUPATSINH PARMAR....Respondent(s) R/CR.MA/14756/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.14756 of 2012 In CRIMINAL APPEAL NO. 1629 of 2012 With CRIMINAL APPEAL NO. 1629 of 2012 ============================================= STATE OF GUJARAT....Applicant(s) Versus VANRAJSINH BHUPATSINH PARMAR....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 : 20/03/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Present application under Section 378(1)(3) of the Code of Criminal Procedure, 1973 has been preferred by the applicant State of Gujarat for Leave to Appeal against the impugned judgment and order dated 13.06.2012 passed by the learned 8th Additional Sessions Judge, Vadodara in Sessions Case No.125 of 2009 acquitting the respondent herein original accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ).
[2.0] Ms. C.M. Shah, learned Additional Public Prosecutor appearing on behalf of the applicant State has produced the relevant evidence produced before the learned trial Court inclusive of the deposition of the prosecutrix PW-9 Priyankaben Vikramsinh.
[3.0] On perusal of the impugned judgment and order of acquittal and the evidence on record and for the reasons stated hereinafter, we do not see any ground to grant Leave to Appeal to the applicant against the impugned judgment and order of acquittal. Therefore, we have considered the relevant evidence at this stage to satisfy ourselves whether any Leave to Appeal as prayed for is required to be granted or not.
[3.1] On perusal of the impugned judgment and order it appears that the respondent herein original accused was charged/prosecuted for the offences punishable under Sections 363, 366 and 376 of the IPC alleging inter alia that he had run away with the daughter of the complainant Vikramsinh Chhatrasinh Parmar aged 17 & ¿ years and had sexual intercourse with his daughter.
[3.2] To prove the case against the accused, prosecution examined in all 17 witnesses inclusive of the complainant as well as the prosecutrix Priyankaben. The prosecution also led documentary evidences. Considering the deposition of the prosecutrix and considering the fact that the accused and the prosecutrix ran away from Godhra on motorcycle and thereafter they travelled and/or moved from one place to another place i.e. from Godhra to Surat in bus, Surat to Shirdi in bus, staying in the guest house, thereafter travelling to Goa staying in guest house and thereafter travelling to Vapi to Daman, on appreciation of evidence the learned trial Court has held that the prosecutrix had ran away with the accused voluntarily and had sexual intercourse with the accused with her consent and voluntarily, by impugned judgment and order the learned Additional Sessions Judge, Vadodara has acquitted the accused for the aforesaid offences.
[4.0] We have considered the relevant evidence which has been relied upon by the learned APP during the course of hearing. We have considered the judgment and reasons recorded by the learned Additional Sessions Judge. We have also heard the learned APP for the State.
[4.1] Considering the deposition of the prosecutrix herself Priyankaben (PW-9), who was examined at Exh.27, though has stated that the accused has induced her to run away, however, it is her specific case that she had gone with the accused on the motorcycle from Godhra. It is also admitted by her that from Godhra they went to Surat in bus and thereafter from Surat to Shirdi in bus. At Shirdi they stayed in guest house and had sexual intercourse. At Shirdi they stayed for a night. That thereafter they have travelled to Mumbai and also stayed in a guest house in Mumbai. Thereafter they travelled to Goa and there also they stayed in a guest house and had sexual intercourse. That thereafter they had gone to Vapi in train and stayed in the guest house at Vapi. That thereafter they have travelled from Vapi to Daman and travelled from various places. Thus, for 18 days they have travelled together and at no point of time the prosecutrix raised any objection and/or made any grievance. Considering the aforesaid facts and circumstances and on appreciation of evidence the learned Judge has acquitted the accused for the offences punishable under Sections 363, 366 and 376 of the IPC, it cannot be said that the learned trial Court has committed any error and/or illegality in acquitting the accused for the offences punishable under Sections 363, 366 and 376 of the IPC.
[4.2] In light of the aforesaid testimony of the prosecutrix and the facts which have come on record that the prosecutrix and the accused were knowing each other as the accused was coming to her residence/house for shooting employed by her father and that they were having talks on mobile and having come to know about the relationship between the accused and the prosecutrix, she was sent to Gandhinagar, it cannot be said that she had not voluntarily gone and/or she was compelled to leave or was seduced to leave the lawful custody of the guardian. It is to be noted that the age of the victim is more than 17 years and considering the entire evidence on record it appears that she had gone voluntarily with the accused, stayed with him for 18 days, moved from one place to another place and had sexual intercourse at various places. In the cross-examination she has specifically admitted that there was no force for sexual intercourse by the accused. On the contrary she has specifically admitted in the cross that from Shirdi they went to Pune and stayed in the guest house and had sexual intercourse with consent.
[5.0] Considering the aforesaid facts and circumstances, when the learned Judge has acquitted the accused for the offences punishable under Sections 363, 366 and 376 of the IPC, the same cannot be said to be an error which may call for interference of appellate jurisdiction of this Court against the judgment and order of acquittal. Considering the entire evidence on record, we are of the opinion that the conclusion arrived at by the learned Judge and the findings given while acquitting the accused are based on appreciation of evidence and are plausible and therefore, we see no reason to interfere with the impugned judgment and order of acquittal.
[5.1] 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.
[5.2] 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."
[5.3] As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Ors. vs. State of Uttar Pradesh reported in (2011)11 SCC 444 and in the case of Bhaiyamiyan alias Jardar Khan and Anr.
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 in 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.
[6.0] 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 Code of Criminal Procedure, 1973, no case is made out to interfere with the impugned judgment and order of acquittal.
[6.1] In view of the above, as we do not see any reason to interfere with the impugned judgment and order of acquittal, present Criminal Miscellaneous Application for Leave to Appeal deserves to be dismissed and is, accordingly, dismissed. Consequently, Criminal Appeal No.1629 of 2012 also deserves to be dismissed and is accordingly dismissed.
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(M.R.SHAH, J.) Sd/-
(S.H.VORA, J.) Ajay Page 6 of 6