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Judgment
Sr. No.,Particulars,Exh. No.
1,Complaint,15
2,Birth certificate of the victim,16
3,Application of the victim u/sec. 164 of CrPC,17
4,Panchnama of the place from from the victim was abducted,23
5,Seizure Panchnama of the vehicle used in crime,25
6,Panchnama of the clothes of the victim,27
7,Panchnama of the clothes of the accused,28
8,Panchnama of the place were accused committed rape,38
9,Medical certificate of the victim,44
10,Medical certificate of the accused,45
11,Yadi written for the medical examination of the victim,46
12,Yadi written for the medical examination of the accused,47
13,Birth certificate of the victim,57
14,Dispatch note,58
15,Yadi written for receipt of the medical certificate of the victim,59
16,Yadi written for receipt of the medical certificate of the accused,60
17,Yadi written for receipt of complaint u/sec. 164 from the victim,61
18,Schedule of crime,62
19,"Copy of the extract of the entry No. 1908 of the general register of
the school",65
20,"Copy of the extract of the entry No. 1103 to 1771 of the general
register of the school",66
21,Copy of admission form of the school,68
22,Annual Report card of the victim of Standard 1,70
23,"Attendance report from 2005-2006 of the school attended by the
victim",71
24,"Attendance report from 2006-2007 of the school attended by the
victim",72
25,Annual Report card of the victim of Standard 4,73
26,Annual Report card of the victim of Standard 5,74
27,Annual Report card of the victim of Standard 6,75
28,Annual Report card of the victim of Standard 7,76
29,Annual Report card of the victim of Standard 8,77
30,Receipt acknowledging receiving of mudamal,79
31,Letter from F.S.L.,80
32,Report from F.S.L.,81
33,Opinion of F.S.L.,83
victim and accused. It further transpires from the record that the Investigating Officer has clearly admitted that he has recorded statement of the flat,,
owner on 15.02.2017 when he went to the flat where the victim and accused stayed together for drawing panchnama. In his statement the flat owner,,
Vishal Manubhai Gondalia has clearly revealed that the victim and accused had stayed together in his flat at Naroda as husband and wife. These are,,
the aspects whereby we are in agreement with the view taken by the learned trial Court that no satisfactory evidence is produced to show the date of,,
birth of the victim as 30.05.1999, on the contrary, from the record produced during the trial clearly reveals and can easily be presumed by applying",,
preponderance of probability that the date of birth of the victim is 30.05.1998. Therefore on the date of the alleged offence it can be easily inferred,,
that the victim is major and aged more than 18 years. Secondly, the conduct of the victim that she has stayed without making any hue and cry on",,
every available opportunity with her and she has stayed uninterruptedly between 07.02.2017 till 14.02.2017 with the accused and more particularly,,
they have given their identity to the flat owner as husband and wife creates serious doubt about the story narrated by the victim, in any case the",,
prosecution has grossly failed in proving the charges as per the charge framed in the above mentioned matter under the provision of sections 363, 366,",,
365 376 and 506(2) of the IPC and sections 4 and 6 of the POCSO Act and in any case when the doubt about the veracity of any document is created,,
then the benefit should be given in the favour of the accused. Hence the trial Court has rightly acquitted the accused from the charges leveled against,,
him.,,
It is a cardinal principal of criminal jurisprudence that in an acquittal appeal if other view is possible, then also the 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. (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 learned trial Court are perverse, contrary to material on",,
record, palpably wrong, manifestly erroneous or demonstrably unsustainable.",,
In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, 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.""",,
As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in,,
the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment",,
of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's",,
interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court",,
should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.",,
In the very recent judgment reported in 2021 (15) SCALE Pg. 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of,,
Karnataka, the hon’ble Apex Court has observed the scope of section 378 of the Code as under:-",,
“Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that,,
can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of",,
innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as",,
there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which",,
is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of",,
not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible",,
view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty",,
along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a,,
certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while",,
dealing with a case of an acquittal.,,
Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of,,
evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of,,
courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the,,
sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.,,
At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the",,
one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The",,
district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own",,
merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a,,
decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a",,
degree of caution before making any remark.â€,,
Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of,,
appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.",,
In view of the above and for the reasons stated above, present application for leave to appeal being Criminal Misc. Application No. 20081 of 2021",,
fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, Criminal Appeal No.",,
1676 of 2021 also deserves to be dismissed and is accordingly dismissed.,,