Gujarat High Court
Hinaben Chhaganbhai Khimsuriya vs State Of Gujarat & on 11 January, 2016
Bench: M.R. Shah, Z.K.Saiyed
R/CR.MA/18463/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18463 of
2015
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HINABEN CHHAGANBHAI KHIMSURIYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. YOGENDRA THAKORE, ADVOCATE for the Applicant(s) No. 1
MR. K.P. RAVAL ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 11/01/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Present application has been preferred by the applicant herein - original complainant for leave to appeal under Sections 378(1) and 378(3) of the Code of Criminal Procedure challenging the impugned judgment and order of acquittal passed by the learned 9th Additional Sessions Judge, Ahmedabad (Rural) passed in Sessions Case No.130 of 2011, by which, the learned trial Court has acquitted the respondent no.2 herein - original accused for the offences under Sections 376, 452, 323, 506(2) and 294 B of the Indian Penal Code.
2.0. To prima facie satisfy ourselves whether there is any merit in the appeal and therefore, whether the leave to appeal as prayed for is to be granted or not, we have heard Shri Y.M. Thakore, learned advocate for the applicant. We have perused the impugned judgment and order of acquittal passed by the learned trial Court. We have also reappreciated the entire evidence which has been produced by Shri Thakore, learned advocate for the applicant, produced for the perusal of the Court.
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R/CR.MA/18463/2015 ORDER
3.0. Undisputed facts are that the alleged incident of rape had taken place on 21.10.2009 at about 3 a.m. in the early morning. It is an admitted position that the factum of alleged rape by the accused was informed by the prosecutrix to her husband within a period of 7 to 8 days from 23.10.2009 when her husband came from Mount Abu. Still no complaint whatsoever was filed against the accused for the alleged offence. From the record, it emerges and it is not in dispute that there were cross complaints between the family members of the accused as well as complainant in the month of March 2010. At that stage, there was no allegation at all by the prosecutrix with respect to the alleged rape alleged to have been committed by the accused. That after a period of 13 and half months from the date of the alleged offence for the first time the FIR came to be lodged on 16.11.2010 alleging that the accused committed the rape on her on 21.10.2009. Thus, the FIR / complaint came to be lodged belatedly and there is no plausible explanation whatsoever for such a delay in lodging FIR / complaint. It has come on record and in the cross examination the prosecution has admitted that she had earlier relation with the accused and they used to meet at her own residence when her husband was not at the house and they were having sexual intercourse also. Thus, when the complaint had belatedly i.e. after a period of 13 and half months and that too after cross complaint between the family members for the incident happened on 15.3.2010 and even at that stage also no such allegation of rape was made, we are prima facie of the opinion that learned trial Court has rightly disbelieved the prosecutrix and discarded the deposition of prosecutrix and has rightly acquitted the accused. Even the injuries alleged to have been sustained by the complainant are not established and proved by leading cogent evidence. The view taken by the learned trial Court is plausible and findings recorded by the learned trial Court Page 2 of 3 HC-NIC Page 2 of 3 Created On Wed Jan 13 01:57:59 IST 2016 R/CR.MA/18463/2015 ORDER are on appreciation of evidence and the same cannot be said to be either perverse and / or contrary to the evidence on record. Under the circumstances, appeal lacks merit. Under the circumstances, when appeal lacks merits, present application for leave to appeal deserves to be dismissed and is accordingly dismissed. Consequently, Criminal Appeal against the order of acquittal may not be registered.
sd/ (M.R.SHAH, J.) sd/ (Z.K.SAIYED, J.) Kaushik Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed Jan 13 01:57:59 IST 2016