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2015 DIGILAW 1274 (GUJ)

State of Gujarat v. Veljibhai Lakhubhai Aahir

2015-12-11

M.R.SHAH, Z.K.SAIYED

body2015
JUDGMENT : M.R. Shah, J. 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 04.04.2007 passed by the learned Additional Sessions Judge (Fast Track Court No. 3), Gandhidham, Kutch (hereinafter referred to as "trial Court") in Sessions Case No. 62/2003 by which the learned trial Court has acquitted the respondents herein - original accused for the offence punishable under sections 376 read with 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), the State has preferred the present Criminal Appeal. 2.0. That as per the case of the prosecution the original complainant Matuben wife of Pravin Ahir, aged about 20 years, resident of Meghpar Boricha, Taluka Anjar, District Kutch filed a complaint before the Adipur Police Station on 15.07.2003 being I-CR No. 69/2003 for the offence under section 376 read with section 114 of the IPC. As per the case of the prosecution and the original complainant, original complainant Matuben was resident of village Meghpar Boricha, Taluka Anjar, District Kutch and that she was residing at the same address along with her father, mother and two brothers as well as three sisters. As per the case of the prosecution the original complainant was married with one Ahir Pravinbhai Naranbhai prior to two years from the date of incident and that her husband was plying the truck. It was further the case of the prosecution that at the relevant point of time, she visited her parental house at Meghpar Boricha. According to the complainant and the prosecution, on 15.07.2003 at about 8.00 hours, while complainant had gone to Wada for the purpose of cleaning work, the accused came there on motorcycle and that original accused No. 2 Manu Visanji Maharaj caught hold of the complainant and the original accused No. 1 Velji Laku Ahir committed the rape on her and thereafter, again original accused No. 2 - Manubhai also committed rape on her. As per the case of the prosecution, the complainant shouted for help but nobody came there for help and lastly one Karabhai Ismailbhai Musalman came there and shouted for help and the accused persons ran away on motorcycle from the place of incident. That thereafter the complainant filed the aforesaid complaint with Adipur Police Station alleging inter alia that both the accused have committed the offence punishable under section 376 read with section 114 of the IPC. 2.1. That thereafter the complainant filed the aforesaid complaint with Adipur Police Station alleging inter alia that both the accused have committed the offence punishable under section 376 read with section 114 of the IPC. 2.1. That investigation was carried out by one G.N. Jalvaniya, Incharge PSI, Adipur Police Station. He prepared the panchnama of the place of incident. He took the prosecutrix to Government Hospital, Rambaug for medical examination. He recorded the statement of concerned witnesses - 9 in number. He arrested both the accused as both of them produced themselves before the police station and both of them were sent to hospital for medical examination. After conclusion of the investigation and having found prima facie case the Investigating Officer filed the charge-sheet against both the accused in the Court of learned JMFC, Gandhidham for the offence punishable under section 376 read with section 114 of the IPC. As the case was exclusively triable by the Court of Sessions, learned JMFC, Gandhidham committed the case to the Sessions Court, Gandhidham, Kutch, which was numbered as Sessions Case No. 62/2003 which ultimately came to be transferred to the Court of learned Additional Sessions Judge (Fast Track Court No. 3), Gandhidham, Kutch. That the learned trial Court framed the charge against both the accused at Exh.1 for the offence punishable under section 376 read with section 114 of the IPC. Both the accused pleaded not guilty and therefore, they came to be tried by the learned trial Court for the aforesaid offences. 2.2. To prove the case against the accused the prosecution examined following 14 witnesses. PW No. Name of Witness Exh. No. 1 Ramjibhai Bhimabhai Natda 11 2 Ibrahimsha Pathaisha 13 3 Narendrabhai Premjibhai Chudasama 16 4 Matuben Wife of Pravinbhai 19 5 Aamadsha Pathaisha 26 6 Bhagesh Ramjibhai 28 7 Punjiben Wife of Amrabhai 38 8 Shantaben Babubhai 39 9 Ashok Bharvarlal Joshi 40 10 Jusabsha Ismailsha 41 11 Kumbhabhai Vajubhai 42 12 Ratanbhai Jakhrabhai 46 13 Dr. Chhotelal Changaram Jonwala 48 14 Gishulal Navalram Jalvaniya 62 Through the aforesaid witnesses the prosecution also brought on record following documentary evidences Sr. No. Details of documentary evidence Exh. No. 1 Panchnama of place of incident 12 2 Panchnama 14 3 Panchnama 17 4 Panchnama 27 5 Affidavit dated 16.07.2003 of complaint Matuben Pravinbhai 29 6 Affidavit dated 05.08.2003 filed by complaint Matuben Pravinbhai submitted in the proceedings of Criminal Misc. No. Details of documentary evidence Exh. No. 1 Panchnama of place of incident 12 2 Panchnama 14 3 Panchnama 17 4 Panchnama 27 5 Affidavit dated 16.07.2003 of complaint Matuben Pravinbhai 29 6 Affidavit dated 05.08.2003 filed by complaint Matuben Pravinbhai submitted in the proceedings of Criminal Misc. Application No.163/2003 30 7 Affidavit dated 25.07.2003 filed by complaint Matuben Pravinbhai submitted in the proceedings of Criminal Misc. Application No.163/2003 31 8 Affidavit dated 25.07.2003 filed by complaint Matuben Pravinbhai submitted in the proceedings of Criminal Misc. Application No.163/2003 32 9 Affidavit dated 17.07.2003 filed by Punjiben Amrabhai Ahir 33 10 Affidavit dated 05.08.2003 filed by Punjiben Amrabhai Ahir 34 11 Letter dated 16.07.2003 written by complaint to PSI, Adipur Police Station 35 12 Affidavit dated 17.07.2003 of Bayaben Samirbhai 36 13 Affidavit dated 17.07.2003 of Bayaben Samirbhai 37 14 Medical Certificate of complainant Matuben 49 15 Medical certificate of accused Manu Visanji 50 16 Medical certificate of accused Velji Ahir 51 17 Original complaint 63 18 Extract of Anjar Police Station Diary 64 19 Letter to FSL, Junagadh for sending report and FSL Report 65,66 That after the closure purshis by the prosecution at Exh.42, the defence examined following two defence witnesses Sr. No. Name of Witness Exh.No. 1 Navinchandra Maganlal Mathakiya 72 2 Parshotambhai Ratanshibhai Maru 111 Through the aforesaid witnesses the defence also brought on record the following documentary evidences. Sr. No. Details of documentary evidence Exh.No. 1 Original affidavit dated 16.07.2003 filed by complainant Matuben Pravinbhai 73 2 Original affidavit dated 17.07.2003 filed by Kara @ Jusabsha Ismailsha 74 3 Original affidavit dated 17.07.2003 filed by Punjiben Amarabhai Ahir 75 4 Original affidavit dated 16.07.2003 filed by Bayaben Samirbhai 76 That thereafter defence submitted the closure purshis. That thereafter further statement of both the accused came to be recorded under section 313 of the CrPC. Both of them have denied having committed any offence as alleged. It was their specific case that to take revenge and with malafide intention as on the earlier day a N.C. complaint was filed against the brother of the complainant, a false complaint has been filed against them. 2.3. Both of them have denied having committed any offence as alleged. It was their specific case that to take revenge and with malafide intention as on the earlier day a N.C. complaint was filed against the brother of the complainant, a false complaint has been filed against them. 2.3. That Ramjibhai Bhimabhai Natda (PW-1) - panch of the panchnama of the place of incident; Ibrahimsha Pathaisha (PW-2) - panch of the panchnama of the recovery of the clothes of the accused; Narendrabhai Premjibhai Chudasama (PW-3) - panch of the panchnama of the recovery of the clothes of the prosecutrix; Rambabu Sharma (PW-5) - panch of the panchnama of the arrest of the accused; Aamadsha Pathaisha (PW-6) - panch of the panchnama of the recovery of the motorcycle alleged to have been involved and Bhagesh Ramjibhai (PW-7) - panch of the panchnama of the recovery of number plate, meter box etc. did support the case of the prosecution and as such all the aforesaid witnesses were declared hostile. Even PW-11, PW-12, PW-13 also did not support the case of the prosecution. 2.4. That thereafter on appreciation of evidence more particularly considering the defence and the documentary evidences brought on record by the defence, by impugned judgment and order the learned trial Court has acquitted the accused from both the offences for which they were tried. Hence, the State and the original complainant have preferred the present Criminal Appeal. 3.0. At the outset it is required to be noted that as such during the pendency of the present appeal, original accused No. 1 - Veljibhai Ahir has expired. Therefore, vide order dated 12.10.2015, present appeal has been dismissed as having been abated qua original accused No. 1. Hence, present Criminal Appeal is required to be considered qua original accused No. 2 only. 3.1. Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the original accused. It is vehemently submitted by Shri Raval, learned APP that the learned trial Court has materially erred in not believing the case of the prosecution as narrated and stated by the prosecutrix. It is submitted that though the prosecutrix fully supported the case of the prosecution, the learned trial Court has materially erred in discarding the deposition/evidence of the prosecutrix and consequently acquitting the original accused. It is submitted that though the prosecutrix fully supported the case of the prosecution, the learned trial Court has materially erred in discarding the deposition/evidence of the prosecutrix and consequently acquitting the original accused. It is vehemently submitted by Shri Raval, learned APP that the learned trial Court has not properly appreciated the evidence of complainant Matuben who was examined at Exh.19, who clearly deposed in her deposition that both the accused committed rape on her and thereafter both of them ran away on their motorcycle. It is further submitted that in the present case, the medical evidence fully supports the case of the prosecution more particularly the evidence of Dr. Chhotelal Gangaram Jonvala. 3.2. It is further submitted that even the learned trial Court has not properly appreciated FSL Report at Exh.65. It is submitted that the learned trial Court has materially erred in not properly appreciating the deposition/evidence of Punjiben Wife of Amarabhai who was examined at Exh.38, who fully supported the case of the prosecution. 3.3. It is further submitted by Shri Raval, learned APP that the learned trial Court has committed grave error in relying upon the affidavits produced by defence at Exhs.73, 74, 75 and 76. It is further submitted by Shri Raval, learned APP that the learned trial Court has materially erred in holding that as the original accused No. 1 earlier filed the complaint against the father and the brothers of the original complainant before the Anjar Police Station on 15.07.2003 being N.C. Complaint No. 19/2003 for the offence punishable under sections 323, 504 and 114 of the IPC and therefore, with a malafide intention and to take revenge a false complaint has been filed. It is further submitted that the learned trial Court has not properly appreciated the decisions/judgments cited at the Bar on behalf of the prosecution. It is further submitted that in any case the learned trial Court ought to have convicted both the accused relying upon the deposition of the prosecutrix as well as her mother and the medical evidence. 4.0. Present Criminal Appeal is opposed by Shri Umang Oza, learned advocate appearing on behalf of the original accused No. 2. It is further submitted that in any case the learned trial Court ought to have convicted both the accused relying upon the deposition of the prosecutrix as well as her mother and the medical evidence. 4.0. Present Criminal Appeal is opposed by Shri Umang Oza, learned advocate appearing on behalf of the original accused No. 2. It is vehemently submitted by Shri Oza, learned advocate appearing on behalf of the original accused No. 2 that the finding recorded by the learned trial Court while acquitting the accused are on appreciation of evidence and therefore, the impugned judgment and order of acquittal is not required to be interfered by this Court in exercise of appellate jurisdiction. 4.1. It is submitted that on appreciation of evidence more particularly deposition of the prosecutrix - Matuben and her mother who were examined at Exh.19 and Exh.38 and on appreciation of evidence led by the defence, the learned trial Court has rightly disbelieved the case of the prosecution more particularly the evidence of the prosecution witnesses and thereby the learned trial Court has rightly acquitted the accused. It is further submitted by Shri Oza, learned advocate appearing on behalf of the original accused No. 2 that most of the witnesses have not supported the case of the prosecution. It is submitted that the evidence of the original complainant - prosecutrix and her mother who were examined at Exh.19 and Exh.38 are not corroborated by other independent witnesses. 4.2. It is further submitted that on appreciation of evidence the learned trial Court has rightly held that because of the complaint filed by the original accused No. 1 against the father and the brothers of complainant which was filed just one day prior to the alleged incident, with a malafide intention a false complaint was filed against the accused. It is further submitted that even the original complainant herself filed the affidavit before the Court which was produced at Exh.73 by the defence in which she has categorically stated that the complaint was filed against the accused due to some misunderstanding. It is submitted that the affidavit sworn by the prosecutrix Matuben herself which was signed before the Court Officer has been established and proved by the defence by examining different witnesses. 4.3. It is submitted that the affidavit sworn by the prosecutrix Matuben herself which was signed before the Court Officer has been established and proved by the defence by examining different witnesses. 4.3. It is further submitted that as the present appeal is against the impugned judgment and order of acquittal, which is on appreciation of evidence and the findings recorded, which are neither perverse nor contrary to the evidence on record, it is requested to dismiss the present appeal. 5.0. Heard learned advocates appearing for respective parties at length. Perused the impugned judgment and order passed by the learned trial Court and re-appreciated the entire evidence on record both oral as well as documentary led by the prosecution as well as the defence. At the outset it is required to be noted that as such the impugned judgment and order passed by the learned trial Court acquitting the accused is on appreciation of evidence and the findings recorded by the learned trial Court cannot be said to be perverse and/or contrary to the evidence on record. 5.1. It is also required to be noted that on appreciation of evidence more particularly the medical evidence the prosecution has failed to prove that the rape was committed on the prosecutrix against her will and/or there was any force used. No injuries were found on any part of the body of the prosecutrix. Thus, the medical evidence does not support the case of the prosecutrix/prosecution. On appreciation of evidence the learned trial Court has not believed the evidence of prosecutrix. Though according to the prosecutrix, the place of incident was an open Wada and the alleged incident took place at 8 a.m., if the incident as alleged would have taken place, in that case, some neighbors would have seen the incident. According to the prosecutrix on the earlier night there was rain and according to the prosecutrix she fell down, however on the clothes, no stains have been found. Even the clothes of the prosecutrix are also not found torn. According to the prosecutrix, she shouted however nobody from the neighbor came. According to the prosecutrix on the earlier night there was rain and according to the prosecutrix she fell down, however on the clothes, no stains have been found. Even the clothes of the prosecutrix are also not found torn. According to the prosecutrix, she shouted however nobody from the neighbor came. The aforesaid is required to be considered along with the case of the defence that on earlier day the original accused No. 1 filed N.C. complaint against the father and brothers of the prosecutrix with Anjar Police Station for the offence punishable under sections 323, 504 and 114 of the IPC and thereafter with malafide intention a false complaint has been filed against them. At this stage it is required to be noted that even subsequently the prosecutrix herself filed the affidavit in the Court which were affirmed before the Notary as well as the Court Registrar in which she categorically stated that due to some misunderstanding a false complaint was been filed against the accused. Those affidavits are produced at Exhs.73, 74, 75 and 76. The aforesaid affidavits have been proved by the defence by examining defence witness Nos. 1 and 2, one of them was Notary Public and Advocate and another was Court Officer i.e. Registrar of Principal Senior Civil Judge, Bhuj. Considering the aforesaid facts and circumstances of the case, it cannot be said that learned trial Court has committed any error in acquitting the accused. The findings recorded by the learned trial Court are on appreciation of evidence and they are neither found to be perverse nor contrary to the evidence on record. Under the circumstances, no interference of this Court is called for in exercise of appellate jurisdiction and in the appeal against the order of acquittal more particularly considering the principles laid down by the Hon'ble Supreme Court and this Court in catena of decisions with respect to exercise of appellate jurisdiction against the order of acquittal. 6.0. In view of the above and for the reasons stated above, present Criminal Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. Impugned judgment and order dated 04.04.2007 passed by the learned Additional Sessions Judge (Fast Track Court No. 3), Gandhidham, Kutch in Sessions Case No. 62/2003 is hereby confirmed.