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Gujarat High Court · body

2016 DIGILAW 1135 (GUJ)

State of Gujarat v. Bhanjibhai Mansangbhai Patel

2016-06-20

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 31.5.2005 rendered by learned Additional Sessions Judge, 7th Fast Track Court, Palanpur in Special Case No. 28 of 2003. 2. The short facts giving rise to the present appeal are that the complainant registered the complaint stating the fact that on 4.10.1998 at about 10.30 hours at village Malsan sim, near Talav, while prosecution witness Sitaben was going to her field for agricultural work, the respondent accused chased her and by applying whistle, she was directed to stop. It is alleged that the accused caught hold of her and made illegal demand of having sexual intercourse with her, therefore, the said witness shouted for help and in the meantime, her husband as well as wife of brother of the complainant came to the spot of incident and saved the prosecution witness Sitaben. It is alleged that the accused had also given filthy abuses to the complainant relating to his caste and thereby insulted in public. It is alleged that the respondent accused had also given blow of dhoka to the complainant and caused injuries. Hence, the complaint came to be registered against the respondents accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondent accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined 7 witnesses and also produced documentary evidences such as original complaint of the complainant Exh.10, panchnama of scene of offence Exh.22, injury certificate of Harijan Seghabhai Exh.23 etc. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 5.1 Mr. L.B. Dabhi, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that learned trial Court failed to appreciate the evidence on record and wrongfully acquitted the accused though ample evidence is available on record. In his submission, therefore, learned trial Court ought to have convicted the accused and hence, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondent is required to be convicted, as such. 6. On the other-hand, Mr. Saiyed, learned Advocate for the respondent accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Saiyed further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant State and Mr. Saiyed, learned advocate for the respondent accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 7. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant State and Mr. Saiyed, learned advocate for the respondent accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution case, while the wife of the complainant i.e. Sitaben was returning from the field to the house, at that time, respondent intervened and demanded sexual favour from her and in order to put into action his desire, the accused thrown away basket and in order to secure help, she shouted, due to which, her husband as well as her sister-in-law came to the place of incident and she was rescued; at that time, the accused uttered abusive language as well as derogatory words concerning the caste of the complainant. 8.1 As per the deposition of PW 1-Seghabhai Sartanabhai Chamar, Exh.9, he reitered the allegations made in his complaint. However, in the cross examination, he has admitted that at the time of incident, he was at the house. He also admitted that the distance is about 1/2 kms from the place of incident to his house. He also admitted that as regards to the incident, he has gathered information from his wife and when he reached to the place of incident, none other was there; he did not know from where the accused came and at which place, he fled away. 8.2 PW 2 - Sitaben Seghabhai Harijan, Exh.11 has deposed that the incident had happened at about 10.00 O'clock and at that time, she was returning from the agricultural field along with his sister-in-law Monghiben and when she was bringing Karingana, she was accompanied by her sister-in-law and her husband, at that time, the accused intervened and asked for sexual intercourse, caught hold her hand and thrown away basket, due to which, she shouted for help. At that time, her sister-in-law came to help her and thereafter there was scuffle between her husband and the accused. In her cross examination, the witness has admitted that she got married about a year ago and she came recently in the village and, therefore, except her family members, she did not know anybody. The witness has also admitted that she did not know accused Bhanji. In her cross examination, the witness has admitted that she got married about a year ago and she came recently in the village and, therefore, except her family members, she did not know anybody. The witness has also admitted that she did not know accused Bhanji. The witness admitted that her police statement was recorded as per the say of her husband and the police did not ask anything to her. 8.3 PW 3 - Monghiben Pathubhai Harijan, Exh.12 has deposed that the incident occurred for about 5 to 6 years back and on the day of incident, she and her sister-in-law as well as her husband were proceeding towards the field for bringing Karingana and while they were passing nearby lake, at that time, accused Bhanji arrived there and demanded for sexual intercourse. The witness stated that at that time, her sister-in-law shouted and her brother-in-law came there and thereafter there was scuffle between them. In her cross examination, the witness admitted that she has no agricultural land as she is doing agricultural labour work. She has also admitted that it was not stated before the police that the accused applied whistle. 8.4 On overall analysis of the evidence on record of the aforesaid two witnesses, it is clear that learned trial Court has elaborately dealt with in the impugned judgment wherein the victim as well as her sister-in-law have made lots of improvements in their versions as given to the police. Not only that, but as per the deposition of the victim herself, she did not know the accused and she cannot recognize him except her family members as she recently came at the matrimonial home and, therefore, she is not in a position to recognize any person or villager though in the police statement, she gave detailed description and also the name of the accused. As per the versions of the victim as well as sister-in-law, the victim was accompanied by her husband as well as sister-in-law on the day of incident. However, on going through the deposition of the husband of the victim, it clearly emerges out that at the time of incident, the husband of the victim was at home and he had not accompanied his wife when the incident took place. However, on going through the deposition of the husband of the victim, it clearly emerges out that at the time of incident, the husband of the victim was at home and he had not accompanied his wife when the incident took place. 8.5 In view of the aforesaid nature of evidence, there is no uniformity in the evidence of all the three witnesses and the evidence of all the three witnesses if read together and appreciated in comparison with their previous statements, third story is clearly coming on record which is in contradiction to their previous statements. Further, as it appears from the record of the case that no independent witness has been examined in this case. In this view of the matter, the prosecution miserably failed to connect the accused with the crime in question even for the offence punishable under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act. Under the circumstances, learned trial Court has rightly acquitted the respondent accused considering the nature of evidence on record. 9. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 11. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.