Gujarat High Court
State Of Gujarat vs Rasidmiya Ahemadmiya Shaikh & 2 on 15 July, 2014
Bench: Anant S. Dave, Sonia Gokani
R/CR.MA/5560/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) No. 5560 of 2014
In
CRIMINAL APPEAL No. 560 of 2014
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STATE OF GUJARAT....Applicant(s)
Versus
RASIDMIYA AHEMADMIYA SHAIKH & 2....Respondent(s)
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Appearance:
Mr JK SHAH APP for the Applicant(s) No. 1
MR NITIN M AMIN, ADVOCATE for the Respondent(s) No. 1 3
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CORAM: HONOURABLE Mr. JUSTICE ANANT S. DAVE
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
15th July 2014
ORAL ORDER (PER : HONOURABLE Mr. JUSTICE ANANT S. DAVE)
Heard learned APP Mr. JK Shah for the applicantState. This application is filed by the applicantoriginal complainantState of Gujarat seeking leave to prefer an appeal under Section 378 [1](3) of the Code of Criminal Procedure , 1973 {"CrPC" for short} against the judgment and order of acquittal dated 18th January 2014 passed by the learned Additional Sessions Judge, Gandhinagar in Sessions Case No. 88 of 2011 acquitting the opponents for the offences under Sections 363, 366, 376, 506 (2) & 114 of the Indian Penal Code {"IPC" for short} .
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R/CR.MA/5560/2014 ORDER It is the case of prosecution that one Noorbhai Lalbhai Belim, father of the victim, filed a complaint before Dahegam Police Station, being IC.R No. 104 of 2010 against the accused for offences punishable under Sections 363, 366, 376, 506 (2) and 114 IPC, and as per the complaint, the accused no.1, with the help of other accused persons on 13th September 2010, during late night and early morning of 14th September 2010, daughter of the complainant, aged 17 years, was kidnapped on a scooter attached with sidecar from the legal custody of her guardians against her consent, wish and will, and she was subjected to forcible intercourse at various places. Later on, after completion of investigation, case was committed to the concerned trial Court and the accused were tried where oral and documentary evidence were led and considering the testimony of the victim, medical officer, mother and father of the victim, as surfaced on the record in the form of school leaving certificate, medical certificate of the injury, FSL and various panchnamas of place of offence, the trial Court found that no case was made out by the prosecution bringing sufficient evidence, and accordingly, the accused came to be acquitted.
Learned APP Shri JK Shah appearing for the State would contend that a specific case of the prosecutrix was that offence was committed against her consent by the accused persons and there was no reason for her to falsely implicate the accused, and accordingly, the learned trial Judge ought to have Page 2 of 4 R/CR.MA/5560/2014 ORDER believed the evidence of victim PW5, who was examined at Exh. 29 and has fully supported the case of prosecution. It is further submitted that alongwith the above deposition of the victim, the medical certificate and statement made before the Medical Officer when the victim taken for medical examination, she has stated about the nature of incident and illegal acts of sexual intercourse by the accused no.1 against her wish and consent. The other attending circumstances would also reveal that the victim was forcibly subjected to sexual intercourse and in the grounds of appeal urged in accompanying memo are entirely pressed into service, seeking leave to appeal.
Learned advocate Shri Nitin Amin appearing for the original accused respondents herein would contend that the entire case, if perused, would reveal that no legal evidence surfaces on the record and it is not in dispute that the victim had refused to join her parents and she stayed at Nari Sarakshan Gruh and during the period of ten days, her parents visited her on seven different occasions, but, she was reluctant to stay with them and later on when she was taken by her parents and thereafter, the nature of statement of victim changed and the respondents accused are falsely implicated. According to the learned advocate, even the medical examination papers and FSL report would not support the case of prosecution, as the victim was above sixteen years and she had given her consent for which there was no coersion in any manner so as to Page 3 of 4 R/CR.MA/5560/2014 ORDER commit any crime under Section 376 IPC. Moreover, deposition of other witnesses; including Medical Officer a Doctor, who examined her, would also conclusively support the case of prosecution, and accordingly, acquittal of the respondents herein is not to be disturbed at this stage and no case is made out for granting leave to appeal.
Upon consideration of overall facts and circumstances, the nature of deposition - oral as well as documentary evidence, specific testimony of the victim and her parents, medical certificate, appreciation thereof and the resultant findings, we are satisfied that a case is made out to grant leave to appeal.
Order accordingly.
{Anant S. Dave, J.} {Ms. Sonia Gokani, J.} Prakash* Page 4 of 4