State of Gujarat vs Ajay Bhagwandin Kori (Bhaiyaji)

J.R. Vora, J.—Instant criminal appeal is preferred u/s 378 of the Criminal Procedure Code, by the State of Gujarat - appellant against the judgment and order delivered by learned Additional Sessions Judge, Court No. 19, City Sessions Court, Ahmedabad on 31.12.2008 in Sessions Case No. 189 of 2008 whereby the present respondent being accused of said Sessions Case came to be acquitted by the trial Court for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code.

In Criminal Misc. Application No. 5883 of 2009 vide order dated 04.11.2009 leave to appeal is granted to the State u/s 378(3) of the Criminal Procedure Code. We have called for Record & Proceedings from the trial Court for our scrutiny.

Appeal is admitted. The respondent is not required to be called upon in our humble view.

Learned APP Mr. A.J. Desai appearing on behalf of the State is heard extensively in respect of this matter at this stage also and we are finally deciding the matter. We have called for Record & Proceedings from the trial Court and we have gone through the same thoroughly and the evidence recorded during the trial, is scrutinized by us threadbare. We have dispassionately reached to our conclusion and we have also scrutinized the reasoning of the learned trial Judge for the conclusion of acquittal.

As per the brief facts of the case, complaint in this case came to be lodged by the mother of the victim PW.7 - Minaben Kantibhai Indrekar. Accordingly on 01.05.2008, late at night her daughter aged about 18 years named Mamta, while they were sleeping outside of the house on account of summer, was not found in her bed. Inquiry, at the house of accused was made and it was found that accused was driven away by his brother from his house and hence, the complaint came to be filed. A crime came to be registered and victim - Mamta was found from Uttar Pradesh in February, 2008. According to the school leaving certificate of the victim, her date of birth was 25.06.1988. Eye witness i.e. Principal of the School has been examined to prove this certificate. A charge-sheet came to be filed against the accused and the case was committed to the Court of Sessions and made over to the trial Court. Vide Ex. 4 a charge was framed for the abovesaid offences against the accused. He pleaded not guilty. The evidence was recorded and in statement u/s 313 of the Criminal Procedure Code, the accused denied of having committed any offence.

The prosecution examined the following witnesses.

PW-1 Dr.Shital Kishorbhai Turkhia Ex.7 PW-2 Hardikbhai Chandrakant Pandya Ex.8 PW-3 Dr.Manish Bachubhai Ghelani Ex.13 PW-4 Dr.Nilesh R. Chauhan Ex.16 PW-5 Lilaben K. Salat Ex.18 PW-6 Mamtaben S. Indrekar Ex.21 PW-7 Minaben K. Indrekar Ex.22 PW-8 Manish K. Indrekar Ex.25 PW-9 Khengarji Chaturji Rajput Ex.27 PW-10 Abrahamsinh B. Thakore Ex.37 PW-11 Kantibhai S. Palia Ex.38

The prosecution also produced on record the following documentary evidence.

Sr. No. Particulars Ex. No. 1. Seizure panchnama of clothes. 9 2. Panch slips 10 3. Seizure panchnama of saliva, 11 blood, hair of the accused and victim. 4. Medical certificate of victim 14 5. Medical certificate of accused 15 6. Xerox of diagnosis of victim by Gynecologist of Civil Hospital. 17 7. Self-attested copy of school 18 register of victim 8. Self-attested copy of L.C. of 20 victim 9. Original complaint 23 10. Report u/s 157 28 11. Certificate of School No. 1 29 12. Letter regarding A Summary 30 13. A Summary Report 31 14. Letter regarding Broadcast 32 15. Yadi for search of accused at U.P. 33 16. F.S.L. Forwarding note 34 17. F.S.L. Receipt 35 18. F.S.L. Report 36 19. Serological report 36A

After hearing both the parties, the trial Court came to the above conclusion to acquit the accused and hence the present appeal.

What is required to be appreciated in this case is the evidence of prosecutrix. Undoubtedly, she was below 18 and above 16 years when the incident occurred. When we appreciated the evidence of victim herself we find that in no uncertain terms she admitted in deposition that she had love affair with the accused and by her own volition she had been to Faizabad along with the accused from Ahmedabad. Thereafter, at Uttar Pradesh both of them entered into wedlock and through this wedlock they had an issue and the child died after nine months. She was staying with the accused as his wife. Except that, there is no other independent evidence of prosecution connecting the accused with the offence punishable u/s 376 of the Indian Penal Code. The learned trial Judge though stated that according to school leaving certificate which is produced at Ex. 20, she was 17 years of age but she stated in her deposition that when she went to Faizabad along with accused she was aged about 19 years. However, even if we consider the age of the victim at about 17 years at the relevant juncture we find that she had entered into wedlock with the accused with her own volition and the question of committing offence by the accused u/s 376 of the Indian Penal Code, would not arise at all. Likewise, for the offences punishable under Sections 363 and 366 of the Indian Penal Code is concerned, it is clear from the deposition of the prosecutrix that she had gone with accused by her own volition and no force was used by anybody to accompany accused to go to Faizabad. There is no evidence that she was seduced. In this view of the matter, learned trial Judge, after considering the evidence of victim and other evidence recorded during the trial, rightly came to the conclusion that the prosecution has failed to prove the case against the accused. According to us, this is the possible conclusion from appreciation of the evidence recorded during the trial. We do not find any error in the manner by which the learned trial Judge has appreciated the evidence recorded during the trial and the conclusion arrived at by the trial Court. When we appreciated the evidence, we also come to the same conclusion that the prosecution has failed to prove the case against the accused for the above said reasons. It must be noted that the conclusion of the acquittal of the trial Court cannot be interfered with only because second view is possible. Inference in orders of acquittal would be permissible only when the order of acquittal is so perverse that it would not stand to reason at all.

In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality is committed by the learned Additional Sessions Judge in acquitting the accused of the offences with which he was charged and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the learned trial Judge, as, in our view, no other conclusion is possible except the one reached by the learned trial Judge.

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 Vs. State of Gujarat, 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.

In the case of Ram Kumar Vs. State of Haryana, , 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.

It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon''ble Supreme Court in the case of Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, and State of Karnataka Vs. Hemareddy Alias Vemareddy and Another,

Viewing this appeal in the above contest, we do not find any reason to interfere with the impugned judgment and order of acquittal of the accused for the offences for which he was charged.

In the result, for the reasons stated above, appeal stands dismissed.