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Judgment
Sr. No,Name of Witness,Exhibit
1,Hiteshbhai Nagjibhai Makwana â€" Panch Witness,08
2,Babbhai Tapubhai Ghaghal â€" Panch Witness,10
3,Dr. Meghaben Mansukhbhai Kanani â€" Medical Officer,11
4,Dr. Kiritkumar Nathubhai Bathvar â€" Medical Officer,15
5,Sanjaybhai Jagabhai Chohla â€" Panch Witness,25
6,Jamnadas Shantidas Desani â€" Panch Witness,31
7,Mustaqbhai Mubarkbhai Jokhiya â€" Panch Witness,34
8,Irfanbhai Ibrahimbhai Padrashi â€" Panch Witness,35
9,Rekhaben Rameshbhai Vaghodiya â€" complainant,38
10,Victim- daughter of Rameshbhai,40
11,Sanjaysinh Ratansinh Chavda â€" Talati-cumMantri,45
12,"Niteshbhai Chhaganbhai Sagar, who recorded complaint",50
13,Hirabhai Ratangiri Goswami â€" Investigating Officer,53
14,Jaduvirsinh Verubha Rana â€" Investigating Officer,57
15,Pravindan Baldevji Gadhvi who filed charge-sheet.,58
6,OPD case of victim,17
7,"Forwarding Yadi with regard to handing over of the sample to the Police for sending to FSL after
medical examination of the victim",18
8,Certificate of examination of victim,19
9,"Slip with regard to referring the victim to SIR T Hospital, Bhavnagar for knowing the exact age and
pregnancy of the victim.",20
10,Yadi with regard to collection of necessary sample of the victim in relation to committing rape on her,21
11,OPD Case of Victim,22
12,"Forwarding Yadi with regard to handing over of the sample to the Police for sending to FSL of the
accused.",23
13,Certificate of medical examination of accused,24
14,Recovery Panchnama of clothes of accused,26
15,Panchslips of the Panchnama wit,27 to 29
16,"Panchnama with regard to collection of samples of medical examination by the Police in presence of
the Panchas",32
17,Complaint,39
18,Statement of the victim recorded under Section 164 of Code.,41
19,Forwarding letter with regard to recording of statement of victim,42
20,"Yadi issued by CPI, Botad with regard to issuance of birth certificate of the victim.",46
21,Birth certificate of victim,47
22,True copy of register for the year 2004,48
23,Computer copy of station diary,51
24,Order of handing over the investigation,52
25,"Yadi forwarded to learned Chief Judicial Magistrate, Botad to record the statement of victim under
Section 164 of Cr.PC",54
26,"Report to Paliyad Police Station with regard to making an entry in the station diary for making arrest
of the accused.",59
27,Report for addition of Section 6 of POCSO,60
28,"Yadi to FSL, Junagadh with regard to sending medical samples of victim and accused.",61
29,"Receipt of muddamal received by the FSL, Junagadh",62
30,"Forwarding letter by FSL, Junagadh",63
31,Biology and Serology Report,64
evidence placed before the learned trial Judge. We have not found any reason or ground to interfere with the findings of facts recorded by the learned,,
trial Judge. No doubt, the victim was minor at relevant time of incident i.e. on 23/12/2018; but on close scrutiny of the evidence of victim, she has",,
clearly stated in her examination in chief that no any act of intercourse is committed by the respondent-accused. Whatsoever the evidence of physical,,
relation disclosed by victim was prior to the lodgment of the FIR. The deposition of complainant also does not lead to infer that any of the ingredients,,
of the offences are established / proved. Though the learned APP tried to prove the case on the basis of other corroborative evidence viz., medical",,
history; but when from the deposition of the material evidence and more particularly star witness viz., victim- girl is examined, the act of committing",,
sexual intercourse with the victim by respondent-accused is not proved. We are of the considered view that the prosecution is required to prove the,,
ingredients of the offence through the evidence of victim first and if the evidence of victim does not disclose the occurrence of the offence as alleged,,
against the respondent-accused, in that event, the Court cannot consider the appeal on the basis of other corroborative evidence viz., medical history",,
given before the Doctor/s who were examined as PW 3 and 4. It is also relevant to note that complainant has specifically disclosed before the Court,,
that victim- girl has not disclosed anything before the complainant with regard to incident in question. Under the circumstances, the learned trial Judge",,
has rightly acquitted the respondent- accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the,,
learned trial Judge leading to the acquittal.,,
It is a cardinal principle 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.",,
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 fails and same deserves to be dismissed and is",,
accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is",,
accordingly dismissed.,,