State of Gujarat vs Patel Ramesh Nanjibhai

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G.B. Shah, J.—The present appeal is filed by the appellant-State under section 2. Short facts of the case are that a complaint was filed by the complainant-Patel Rugnath Bhudarbhai-father of the victim girl before Halvad Police Station which has been registered as Crime Register No. I-215 of 1994 alleging inter alia that on 26-12-1994 between 8.30 and 10.30 hours, his daughter was kidnapped by the accused persons from his lawful guardianship and also committed theft of cash of Rs. 2,500/- and ornaments worth Rs. 71,500/- with the help of his daughter. In pursuance of registration of the said complaint, the police started investigation. At the end of investigation and on the basis of material collected against the accused, since a prima facie case was made out against the accused, a charge sheet was filed against the accused. As the offences alleged against the accused was exclusively triable by the Court of Sessions, case was committed to the Court of Sessions for trial. Thereafter, charge was framed against the accused. The accused pleaded not guilty to the said charge and claimed to be tried. At the end of trial, after hearing the learned advocates appearing for the prosecution and the defence, the learned Additional Sessions Judge (fast Track Court) Dhangadhra, acquitted the accused of all the charges levelled against them, which is giving rise to the present appeal.

I have heard learned Addl. Public Prosecutor, Mr. K.L. Pandya for the appellant-State and learned advocate, Mr. M.J. Buddhbhatti, for the respondents-accused.

Learned Addl. Public Prosecutor, Mr. K.L. Pandya, for the appellant submitted that the judgment and order of acquittal passed by the court below is contrary to law and evidence on record. He further submitted that the learned Judge has not appreciated the oral as well as documentary evidence in its true and correct perspective and thereby committed error in acquitting the accused. He further submitted that learned Judge has erred in not appreciating the evidence of victim-minor, who was examined at Exh. 21 wherein she has deposed that she was forcibly taken away by the accused under threat. He further submitted that the learned Judge has not appreciated the fact that muddamal ornaments were recovered at the instance of the accused. He further submitted that though copy of School Leaving Certificate of victim issued by the Principal of the School was produced and the Principal of the said School was examined at Exh. 14 and although there was a ''dakhla'' issued by nagarpalika relating to age of the victim, learned Judge has not considered the same in its correct perspective. He further submitted that although the prosecution witnesses namely, complainant, Patel Rugnath Bhudarbhai, Exh. 12, Bhagvatiben Rugnath, Exh. 22, Kantilal Bhudarbha, Exh. 23, Ranjanben Jayantibhai, Exh. 24 Lalitaben Dashrathbhai, Exh. 25, Investigating Officer, Makansinh Ramsinh Dabhi, Exh. 30 and PSI, Jayvantsinh Hemantsinh Zala, Exh. 39 have supported the case of the prosecution and case against the accused has been proved beyond reasonable doubt, learned Judge has committed a grave error in acquitting both the accused.

Learned advocate, Mr. M.J. Budhbhatti, on the other hand, submitted that the trial court has rightly appreciated the oral as well as documentary evidence appearing on the record and the reasons assigned for recording a finding of acquittal are reasonable and justifiable. According to him, there are glaring contradictions and conflicting statements regarding the age of the victim in the depositions of the complainant and the victim with that of the complaint and therefore, the trial court has rightly disbelieved the age shown in School Leaving Certificate and ''dakhla'' issued by the nagarpalika and thereby both the accused were rightly acquitted by the accused. He further submitted that this being an appeal against the order of acquittal, the judgment delivered by the trial court deserves to be upheld as proper as plausible reasons for acquittal have been assigned. He, therefore, urged that the present appeal deserves to be dismissed. In this connection, he relied on the decisions reported in State of Karnataka Vs. Sureshbabu Puk Raj Porral, and S. Varadarajan Vs. State of Madras, .

It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon''ble Apex Court in number of decisions. In the case of State of Goa Vs. Sanjay Thakran and Another, , it has been held by the Hon''ble Apex Court. In para 16 as under:

"16. 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 judgment 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."

Same view has been taken by the Apex Court in State of Uttar Pradesh Vs. Ram Veer Singh and Others, and in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, .

I have gone through the impugned judgment and order passed by the trial court together with oral as well as documentary evidence and also considered the rival submissions made by the learned advocates for the parties in light of the principles laid down by the Hon''ble Apex Court in the aforesaid reported decisions.

In the case on hand, it is pertinent to note that though the police had thought it fit to refer the victim to the hospital for examination which was also carried out, it is the fact that the ossification test relating to age supposed to be conducted when the offence was registered under Sec. 366 of IPC has not been carried out and it is a serious lapse on the part of the investigating agency. In absence of the same, two other documents namely, School Leaving Certificate Exh. 15 and ''dakhla'' issued by nagarpalika Exh. 31 are the only documentary evidence available regarding the age of the victim.

As far as the threat administered on the victim by the accused is concerned, it is the fact that the victim has gone with the accused taking ornaments with her from her house for which, separate complaint has been filed by the complainant. Further, it is clear from the evidence of Ranjanben, who is aunt of victim, that when victim and accused Ramesh came to her residence, though she advised the victim to go back to her parents'' place, she did not obey her. Moreover, although there were sufficient opportunities available for the victim when she was with the accused for four days for revealing about the threat being administered on her, she did not speak about the same to anyone. These speak volume about conduct of the victim and which would falsify the factum of threat having administered on the victim. As far as age of the victim is concerned, it is deposed by the complainant to be 15 years. Complaint Exh. 13 shows age of the victim as 14 years. The Investigating Officer has deposed that complainant in his specific reply has stated the age of the victim as 17 years. In view of the conflicting and contradictory versions regarding the age of the victim appearing in the depositions of the complainant, the victim as well as complaint with that of School Leaving Certificate and ''dakhla'' issued by the nagarpalika and also looking to the conduct of the victim after leaving her house with the accused along with ornaments, the learned Judge has believed the say of the learned advocate for the accused that the victim might be between the age of 18 and 19 years at the time of incident. Under the circumstances, relying upon a decision reported in 1994(2) Crimes (Madhya Pradesh) page 1021, it was rightly held by the learned Judge that no offences under Sec. 366 or under Sec. 380 could be established against the accused and hence, they were acquitted of the charges levelled against them. In view of the above, I am of the view that the accused would be entitled to the benefit of the ratio laid down by the Hon''ble Apex Court in Sureshbabu Puk (supra) relied on by the learned advocate for the respondents that when, in absence of ossification test on the victim, age of the victim becomes doubtful due to conflicting versions on record, then the question of taking the victim from lawful guardianship does not arise.

It appears that the trial court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused. This Court is, therefore, of the opinion that the trial court was completely justified in acquitting the accused of the charges levelled against them. Therefore, the findings recorded by the trial court are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same.

Learned Addl. Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the trial court 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.

Under the above circumstances, appeal is required to be dismissed and is accordingly dismissed. Bail bond, if any, stands cancelled.

Record and proceedings called for, if any, are ordered to be sent back forthwith.