State of Gujarat vs Chandrabhai R. Vasava and Another

K.S. Jhaveri, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order dated 05.11.1988 passed by the Additional Sessions Judge, Vadodara in Sessions Case No. 125 of 1988 whereby the accused has been acquitted of the charges leveled against him u/s 366 and 376 of Indian Penal Code. He was however convicted of the offence u/s 363 of Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and fine of Rs. 300, in default to undergo rigorous imprisonment for two months.

The brief facts of the prosecution case are as under:

2.1 The victim who was the youngest daughter of the complainant had gone for labour work on 05.04.1988. She did not return beyond her usual time. The complainant presumed that she might have gone to any relative''s house. However when she did not return even till late night the complainant inquired about her but could not find her. Fearing family prestige he did not file any complaint. Thereafter on 16.04.1988, one Sanabhai who was working with the victim informed the complainant that he had spotted the victim with the accused and handed them over to the police chowky. The complainant thereafter went to Waghodia police station and lodged his complaint accusing that the respondent No. 1 accused had taken away his daughter.

2.2 Therefore a complaint with respect to the aforesaid offence was filed against the accused-present respondent No. 1 with Waghodia Police Station. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondent was arrested and ultimately, charge-sheet was filed against him. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

2.3 The trial was initiated against the respondents and during the course of trial the prosecution examined the following witnesses as oral evidences:

Dr. Uday Ramchandra Purandare Ex. 8

Dhulabhai Govindbhai Ex. 10

Shanabhai Prabhatbhai Ex. 12

Sonaben Dhulabhai Ex. 13

Ramanbhai Bhajibhai Ex. 14

Dahyabhai Chittabhai Ex. 20

Abdul Rahim Ahmed Shaikh Ex. 23

2.4 The prosecution also exhibited the following documentary evidences:

Medical certificate of rape Ex. 6

Certificate of age Ex. 7

Certificate of examination of accused Ex. 8

Yadi to Medical Officer Ex. 9

Complaint Ex. 11

Entry about birth from register Ex. 21

Xerox copy of birth register Ex. 22

Report from Head Constable Vasad Ex. 15

Message from Anand to Waghodia Ex. 24

2.5 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the accused of all the charges leveled against him by judgement and order dated 05.11.1988.

2.6 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal.

It was contended by Ms. Shah, learned APP that the judgement and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents . Learned APP has also taken this Court through the oral as well as the entire documentary evidence.

3.1 Ms. Shah has submitted that the trial court ought to have seen that the girl is aged about 13 � years and that the accused induced the girl and also threatened her on certain occasions. She has submitted that the trial court ought to have given due weight to the evidence of the sole eye-witness and victim and ought not to have acquitted the present accused.

Mr. A.D. Shah, learned advocate for the accused has submitted that the trial court has gone through the evidence in detail and has rightly acquitted the respondent-accused. Learned advocate has submitted that the judgement and order of the trial court is just and proper and does not call for interference by this Court.

4.1 Mr. Shah has submitted that the victim in her evidence has not mentioned any physical relation or force by the accused. He has submitted that even from the cross examination it is borne out that the accused had not had any physical intercourse with the victim and therefore this Court may not interfere with the order of the trial court.

At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.

5.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:

From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

5.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

5.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:

From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.

5.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of M.P. reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

5.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under:

This court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.

5.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the parties. The trial court has clearly recorded a finding that it is not emerging from the evidence that the victim was taken away with the intention to have illicit relation or physical relation with the accused. The accused does not seem to have had any physical intercourse with the victim during their stay as could be infered from the cross examination of the victim.

6.1 Apart from that, from the cross examination it is also admitted by the victim that except hugging the victim the accused had not developed any physical intimacy with her. The house where they stayed had only one room where apart from the victim two other people also used to sleep. The medical evidence does suggest that the victim was habituated to intercourse as her hymen had ruptured. But her own statement does not bring out any case that during the said period of stay together the accused had intercourse with the victim. Thus the evidence is falling short of drawing an inference of sexual intercourse and therefore the trial court has rightly acquitted the accused of the offences u/s 366 and 376 of Indian Penal Code.

6.2 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Ms. Shah, learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

The judgement and order dated 05.11.1988 passed by the Additional Sessions Judge, Vadodara in Sessions Case No. 125 of 1988 acquitting the respondents-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled. R & P if any to be sent back forthwith.