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2016 DIGILAW 1474 (GUJ)

State of Gujarat v. Satish

2016-07-25

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 5.4.2006 rendered by learned Additional Sessions Judge, Porbandar in Sessions Case No. 29 of 2004. 2. The short facts giving rise to the present appeal are that while the complainant has gone to hospital, the respondent accused has attempted to abduct and/or entice away the minor daughter of he complainant from her lawful possession with clear intention to have illicit sexual intercourse with her. Hence, the complaint came to be lodged against the respondent 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 8 witnesses and also produced documentary evidences such as original complaint Exh. 11, panchnama of scene of offence Exh. 13 and panchnama of arrest of the accused Exh. 14. 3.2. At the end of the trial, after recording the statement of the accused under section 313 of the Cr PC 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. 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. Dabhi, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. 5.1. Mr. 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 even though the victim was minor and she has deposed as regards as to what has happened with her and the same has been supported by deposition of another minor though it is not getting corroboration from other independent witness and wrongfully acquitted the accused though ample evidence is available on record for the alleged offences. 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 respondents are required to be convicted, as such. 6. On the other-hand, Mr. Hardik Shah, 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. Shah further submitted that there is no iota of evidence available against the present accused. He submitted that the complainant has lodged the complaint on here say information and she has not witnessed the incident. He submitted that entire case of the prosecution is rested upon the evidence of two minor and the said evidence has no uniformity and lots of improvements have been made during the trial. He submitted that the evidence of the minor also suffers from lots of contradictions and, therefore, the said evidence is rightly not believed by learned trial Court. He submitted that even otherwise also, the evidence of minor is not getting support from other eye witness Madhuben who turned hostile. He submitted that in absence of corroboration and supports from independent witness, conviction should not be based upon the sole testimony of the minor witness whose evidence is tainted with improvements and exaggeration. He, therefore, 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. He, therefore, 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. Hardik Shah, 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, on 19.11.1999 while the son and daughter of the complainant were passing nearby Gundi Faliya during nocturnal hours, at that time, the respondent intervened and allured them to buy fire crackers and tried to abduct Divya in order to outrage her modesty and, thereby committed the offences punishable under sections 363, 366 and 511 of IPC. 8.1. In order to prove the case against the accused, the prosecution has examined PW 1 Manjulaben Hirabhai who is mother of the victim. The witness has deposed that incident occurred five years prior to the date of incident during nocturnal hours and at that time, she had gone to Asha Hospital. The witness has stated that her son Mitesh informed that the present respondent under the pretext of buying fire crackers and advancing Rs. 10/- abducted Divya, thereafter her clothes were removed and thrown her in dirty place. The witness stated that she has also been informed by one neighbour Madhuben the same story as stated by her children. Indisputably, the complainant has not witnessed the incident. 8.2. PW 2-Pravinbhai Mepabhai who is father of the victim has also not witnessed the incident. PW 3-Miteshkumar Pravinbhai who was minor aged about 12 years has deposed that on the day of incident, while they were passing nearby Mithi Masjid, at that time, the respondent came there and said to advance Rs. 10/- to buy fire crackers and thereafter, the accused lifted Divya, removed her clothes and thereafter thrown her in dirty place. The same story is narrated by his mother. The same story is also narrated by victim Divya in her deposition at Exh. 18. PW 7-Madhuben Bhimjibhai has deposed that she knows Manjulaben who is the complainant as well as her children and they are residing at Khatkiwad. The same story is narrated by his mother. The same story is also narrated by victim Divya in her deposition at Exh. 18. PW 7-Madhuben Bhimjibhai has deposed that she knows Manjulaben who is the complainant as well as her children and they are residing at Khatkiwad. However, the witness has not supported the case of the prosecution. In her cross examination, the witness has admitted that place of incident is surrounded by several houses and she has not witnessed the incident and she did not know regarding the incident. 8.3. On overall evaluation of the evidence on record, it appears that the complaint is lodged after a day from the date of incident. Indisputably, alleged incident has occurred during nocturnal hours where in the nearby place, devotional/religious songs programme was going on and the said place is surrounded by various persons. As per the prosecution version also, the incident occurred during Diwali festival. The respondent as well as the victim are acquainted with each other and, therefore, allegation regarding advancing Rs. 10/- for buying fire crackers is also not getting support from other evidence. Not only that the evidence on record has also not established that the respondent accused lifted victim Divya and thrown away in dirty place in order to abduct her. No injury or any incriminating marks were found over the person of the victim. In this view of the matter, though the evidence of two minor victims are available on record, but in absence of any corroboration from the evidence of eye witness, the accused cannot be linked with the crime in question. 8.4. Under the circumstances, learned trial Court has rightly acquitted the respondent accused considering the nature of evidence on record. There is no iota of evidence to link the accused with the crime in question. Nothing reveals from the complaint itself. 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 respondent of the charges leveled against him. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent 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.