Gujarat High Court
State Of Gujarat vs Ikbal Amadbhai Tarakban on 7 July, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.MA/11973/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC. APPLICATION (FOR LEAVE TO APPEAL) No. 11973 of
2016
In
CRIMINAL APPEAL No. 771 of 2016
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STATE OF GUJARAT....Applicant(s)
Versus
IKBAL AMADBHAI TARAKBAN....Respondent(s)
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Appearance :
Ms. MOXA THAKKER, APP for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 07/07/2016
ORAL ORDER
(PER : HONOURABLE Mr. JUSTICE ANANT S. DAVE) This Appeal for leave to appeal under Section 378 [1] (3) of the Code of Criminal Procedure, 1973 ["CrPC" for brevity] is preferred by the State of Gujarat against the judgment and order of acquittal dated 17th March 2016 passed by the learned 2nd Addl. Sessions Judge, Rajkot at Gondal in Sessions Case No. 31 of 2011.
Heard Ms. Moxa Thakker, learned APP for the applicant-State of Gujarat. She has taken us to the following facts, which are briefly stated hereunder : Page 1 of 6
HC-NIC Page 1 of 6 Created On Wed Jul 13 00:06:38 IST 2016 R/CR.MA/11973/2016 ORDER Initially, the complainant got her complaint registered at Gondal Taluka Police Station, being I-C.R No.183/2010 against the accused for offence punishable under Section 376 and 506 (2) of the Indian Penal Code. The genesis of the complaint being unfortunate incident which took place seven years, where mother of the victim set herself ablaze and thereafter victim and her sister were residing with her maternal uncle, since father got re- married. However, prior to one and a half years of the incident in question, when the complainant was alone at home, son of Amadmama viz., Iqbal Amadbhai Tarakban- the accused herein came there and under the pretext that her mother had called her, therefore, she went alongwith him to the house of Iqbal where no body was present at that time. It is her say in the complaint that the said Iqbal committed rape over her forcefully without her consent and thereafter threatened her with dire consequences; including threat to her life. Thus, initially no complaint was registered. However, since the illegal act continued frequently, she lodged a complaint; as aforestated.
Upon committal of the case to the Sessions Court by Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Jul 13 00:06:38 IST 2016 R/CR.MA/11973/2016 ORDER the learned JMFC, as it was a sessions triable case under the provisions of Section 209 CrPC, it was registered as Sessions Case No. 31 of 2011 and was tried accordingly. At the end of trial, acquittal was ordered, as recorded earlier.
According to the learned APP, in the facts of this case, the prosecution successfully examined sixteen witnesses and produced twenty one documentary evidences in support of its case about the guilt of the respondent-accused. But, the trial Court failed to appreciate the same and it was held that case of prosecution was not proved beyond reasonable doubt, bringing home guilt of the accused. It is submitted that prosecutrix had supported case of the prosecution and there was no consent on her part, though there was delay initially in lodging the complaint only because accused had given threats to the prosecutrix and further she was staying with her maternal uncle due to death of her mother, and therefore, it was not possible for her to immediately ventilate her grievance and disclose the offence. It is submitted that if the version of the Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Jul 13 00:06:38 IST 2016 R/CR.MA/11973/2016 ORDER prosecutrix is seen alongwith medical evidence and testimonies of Investigating Officer, who was examined at Exh. 52, there was no reason for the learned trial Judge not to disbelieve the evidence laid by the prosecution. Likewise, she has taken us to other panch witnesses, though turned hostile, but to some extent supported the case of the prosecution. According to the learned APP, in an offence under Section 376 IPC, testimony of victim may be solitary, is sufficient enough to convict the accused and in the facts of this case, victim was fully dependent upon her maternal uncle, whose son being accused in the offence. Under the circumstances, it is submitted that leave be granted; as prayed for, as in the appeal, the appellant had a good prima facie case.
On perusal of the record of the case alongwith the submissions made by the learned APP and judgment and order of acquittal under challenge, we find that incident in question for offence punishable under Section 376 and 506 [2] IPC as registered had taken place around 17:00 hours one-and-half years before the date of registration of FIR. In the FIR, it culls out that the incident of rape had Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Jul 13 00:06:38 IST 2016 R/CR.MA/11973/2016 ORDER taken place on three different occasions. While in the testimony, the victim deposes that she was raped on five different occasions. Even, there was a talk going on for "Nikha" ceremony of victim with the accused, as it was permissible in the community. Thus, the applicant and the accused were known to each other and further another sister of the victim was also staying along with her in the house of maternal uncle and there was no reason for the prosecutrix not to disclose the fact of heinous crime even to her. The Medical Officer [PW-13] Dr. Hansaben Laljibhai Kachariya, who was examined at Exh. 32, in no uncertain terms deposed that the pregnancy report of victim was negative and other evidences also do not support the case of prosecution that rape was committed over her. Even about the age of prosecutrix that she was below 17 years or below 18 years, there was no record produced before the trial Court.
Thus, the trial Court appreciated such evidences in the context of other attending circumstances and found testimony of prosecutrix not inspiring any confidence, and therefore, not trustworthy and reliable. We find no Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Jul 13 00:06:38 IST 2016 R/CR.MA/11973/2016 ORDER different view can be taken, after having heard learned APP extensively, and therefore, powers under Section 378 [1] (3) CrPC seeking leave to prefer an appeal in the facts and circumstances of the case are not to be exercised here. Hence, leave to appeal stands refused. Criminal Misc. Application is rejected.
(ANANT S. DAVE, J.) (B.N. KARIA, J.) Prakash Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Jul 13 00:06:38 IST 2016