Gujarat High Court
State vs Prakashbhai on 28 July, 2010
Author: A.M.Kapadia
Bench: A.M.Kapadia
Gujarat High Court Case Information System
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CR.MA/1564/2010 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1564 of 2010
In
CRIMINAL
APPEAL No. 286 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
PRAKASHBHAI
ARKHABHAI BHAMBHI (GOHIL) - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, ADDL.PUBLIC PROSECUTOR
for
Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 28/07/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) By means of filing this Application under Section 378(1)(3) of the Code of Criminal Procedure ("the Code" for short), the applicant - State of Gujarat has prayed to grant leave to file Criminal Appeal No.286 of 2010, which is directed against the judgment and order dated 12.11.2009 rendered in Sessions Case No.29 of 2009 by the learned Additional Sessions Judge, 3rd Fast Track Court, Sabarkantha at Himatnagar, by which the respondent-accused ("the accused persons" for short) came to be acquitted of the offences punishable under Sections 366, 376 and 506(2) of the Indian Penal Code ("the Code" for short).
The prosecution case as disclosed in the FIR and unfolded during trial was that;
2.1 The prosecutrix, a married lady, was residing at Village Gadha, Taluka Himatnagar. Her marriage with Arifbhai Hanifbhai was solemnized before 9 to 10 years from the date of the incident. Since last about 3 years from the date of the incident, her husband Arifbhai had gone to Saudi Arabia. The respondent-accused was residing in the neighbourhood of the prosecutrix. It is the case of the prosecution that on dated 13.12.2008, the accused had come to the house of the prosecutrix, and at that time, her mother-in-law had gone to the market and she was alone in the house. Accused asked the prosecutrix to accompany him and further asked her to collect the cash amount lying in the house and the golden ornaments. Thereupon, the prosecutrix collected Rs.25000/- cash amount which was lying in her house as well as a golden chain. It is case of the prosecution that the accused threatened the prosecutrix that if she did not accompany him, carrying cash and golden ornaments, she and her children would be killed. It is the prosecution case that thereafter, the accused took the prosecutrix in a rickshaw to Tejpur ST bus-stand and from there they went to Ambaji and, thereafter, to Mount Abu. They stayed in some hotel in Mt.Abu and it is the case of the prosecution that there the accused raped the prosecutrix without her consent. Thereafter, they both came down to Palanpur from Mt.Abu and at Palanpur ST bus-stand, the accused told the prosecutrix to handover the cash amount as well as the golden ornaments and thereupon the prosecutrix delivered Rs.25000/- as well as her golden chain to the accused. The accused thereafter went somewhere and he did not return. Therefore, on 14.12.2008, she went to Village Mumanvas, Taluka Satlasana where her cousin sister was residing and she narrated the incident to her cousin sister. On 14.12.2008, her cousin sister informed on telephone the incident to relatives of the prosecutrix. The relatives of the prosecutrix came to Mumanvas and took along with them the prosecutrix. It is the case of the prosecution that as she was afraid, she could not immediately lodge the FIR, but the same was lodged on 15.12.2008. The FIR was typed down and the typed script of FIR was presented to the police.
2.2 During the course of police investigation, statements of material witnesses were recorded. The medical examination of the prosecutrix was performed. Necessary medical certificates were collected. After the police collected required material for the lodgment of chargesheet, chargesheet came to be filed in the Court of learned JMFC, Himatnagar. Since the offence was exclusively triable by the Court of Sessions, learned JMFC committed the case to the Court of Sessions, Sabarkantha at Himatnagar which was registered as Sessions Case No.29 of 2009 and the same was made-over to the Court of learned Additional Sessions Judge, 3rd Fast Track Court ('the trial Court' for short) for trial.
The trial Court framed charge against the accused to which he did not plead guilty and claimed to be tried. Thereupon the prosecution examined 12 witnesses and produced necessary documentary evidence detailed in paragraph 5 in the impugned judgment and order. After the prosecution concluded its oral evidence, the trial Court recorded further statement of the accused under Section 313 of the Code, and the accused in his further statement denied generally all the incriminating circumstances emerged from the record and brought to the notice of the accused and he stated that both he himself and the prosecutrix were in love since 2002, but when the love affair between them came to be notice of the family members of the prosecutrix, a false complaint was lodged. After appreciating, analysing and scrutinizing the evidence on record, as well as the submissions made on behalf of both the sides, the trial Court came to the conclusion that the prosecution failed to prove its case beyond any reasonable doubt. The evidence of the prosecutrix was found to be shaky and untrustworthy. Her evidence was also found to be of material contradictions and improvements. The trial Court, therefore, recorded the acquittal of the accused, which has given rise to this acquittal appeal.
We have considered the submissions advanced by Mr.L.B.Dabhi, learned APP for the applicant
- State of Gujarat. We have perused the impugned judgment and order, and the set of evidence supplied by him during the course of his submission, so also the R & P of Sessions Case No.29 of 2009 called for by us from the trial Court vide order dated 7.7.2010. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case.
The entire prosecution case centres round the evidence of the prosecutrix. There is no dispute that the prosecutrix was a married lady and her marriage was solemnized with one Arifbhai Hanifbhai before about 9 to 10 years from the date of the incident. Since last 3 years from the date of the incident, her husband was staying in Saudi Arabia and she was residing at her matrimonial home with her children and her mother-in-law Kulsumben. According to her evidence, on 13.12.2008, the accused had come to her house and had threatened her and under the pressure of threat, she went along with the accused carrying Rs.25000/- in cash and her golden chain. They both went to Tejpur ST bus-stand in rickshaw, and from there in ST bus, they went to Ambaji and from Ambaji they went to Mt.Abu. They stayed together in some hotel. It is her deposition that in hotel, she was raped by the accused. Thereafter, on next day, they came to Palanpur and at Palanpur bus-stand, accused made his escape good along with cash amount and the golden chain. Instead of going to her matrimonial home, she went to Village Mumanvas, where her cousin sister was staying. Though in her evidence she denied any previous association with the accused, but after the lodgment of FIR, when she was taken to hospital for medical examination, and when she was examined by Medical Officer, Dr.Vipul Sanatkumar, examined at Exh.11 and Dr.Bhaminiben Pandit, examined at Exh.17, she gave history to the effect that on 13.12.2008 it was she who ran away with the accused and that she was knowing the accused since last one year. In her history, she further stated that before about 7 days, in Hotel Navjivan, she herself and accused stayed together and there they had coitus. She further stated in her history that, before that, in the outskirts of their village, three times she met the accused, and there they had coitus and the accused caused intercourse.
5.1 The trial Court in the impugned judgment elaborately discussed this aspect of the matter. The trial Court considered the doubtful conduct of the prosecutrix. It emerged from her evidence that she neither complained the rickshaw driver that she was forcefully kidnapped nor she informed anybody in ST bus-stand at Tejpur, at Ambaji or at Mt.Abu. When they stayed in hotel in Mt.Abu, she did not complain to anybody about her kidnapping. Even after she was allegedly raped, thereafter she did not complain before any person in the hotel or in Palanpur ST bus-stand. From her evidence it further reveals that at Palanpur bus-stand when accused demanded the cash and golden ornaments from her, she willingly handed-over the cash and her golden chain to the accused, despite the fact that according to her, on previous night, she was raped by the accused. It is further pertinent to note that during the course of investigation, neither the cash amount nor the golden chain came to be seized by the police either from the accused or at his instance from any place. The trial Court further observed that the history given by her to two Doctors requires worth consideration. The history given by her to the Doctors, knocks the bottom of the prosecution case. The trial Court observed that the two Doctors are independent witnesses. They have no axe to grind either with the prosecutrix or with the accused, and they are independent witnesses. During the medical examination of the prosecutrix, no marks of violence were found on her body.
On overall view of the matter, according to us, the prosecution has not been able to bring home the charge levelled against the accused person and the complicity of the accused person for commission of the offence is not established as there is no evidence against the accused person to connect him with the alleged crime.
In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality or infirmity has been committed by the trial Court in acquitting the accused person of the offences with which he is charged. We find ourselves in complete agreement with the ultimate conclusion and the resultant order of acquittal, as, in our view, no other conclusion was possible except the one reached by the trial Court.
This is an acquittal appeal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court have been very succinctly explained by the Supreme Court in the matter of AJIT SAVANT MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997 p.3255.
(a) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(b) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(c) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(d) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(e) If the High Court, on a fresh scrutiny and reappraised of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(f) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
In ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992 SC p.598, Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the Trial Judge who had the occasion to watch the demeanour of the witnesses.
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. (See 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 trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the trial Court for acquitting the accused person. Suffice it to say that the trial Court has given cogent and convincing reasons for acquitting the accused person and the learned A.P.P. has failed to dislodge the reasons given by the trial Court and convince this Court to take a view contrary to the one taken by the trial Court.
Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the accused person of the offences with which they were charged.
For the foregoing reasons, the application fails and accordingly it is rejected. Resultantly, leave to appeal is refused, and as a consequence thereof, Criminal Appeal No.286 of 2010 is dismissed.
(A.M. Kapadia, J.) (J.C. Upadhyaya, J.) (binoy) Top