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Gujarat High Court · body

2016 DIGILAW 909 (GUJ)

State of Gujarat v. Akbarkhan

2016-04-27

A.J.SHASTRI, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. III of 2003, by which the learned trial court has acquitted the original accused for the offences punishable under sections 363,366, 376, 114, 372 and 373 of Indian Penal Code and under section 6A and 6B of Immoral Traffic (Prevention) Act, the appellant - State has present Criminal Appeal. 2. The case of the prosecution, in nutshell, is as under:- 2.01. That the original complainant - mother of the victim - prosecutrix lodged the complaint with Gayakwad Haveli Police Station on 28/1/2002 against the original accused No. 1 - Akbarkhan alias Pilot alleging that on 24/1/2002 in the night when behind the house, the prosecutrix Mehejabin and accused No. 1 Akbarkhan alias Pilot were talking, at that time, brother of her husband (Diyar) scolded the original accused No. 1 and hence he went. It is stated that since 700 AM in the morning on 25/1/2002, her daughter was found missing. It was alleged that the original accused No. 1 - Akbarkhan @ alias Pilot was driving school rickshaw, and therefore, the prosecutrix came in contact with him and therefore, she stopped the prosecutrix sending the school. Therefore, initially, complaint was lodged against the original No. 1 Akbarkhan alias Pilot only. That thereafter the same was registered as First Information Report being CR No. 1-17 of 2002 with Gayakwad Haveli Police Station. 2.02. The aforesaid First Information Report was first investigated by Kantilal Mangabhai Rathod - P.W. No. 9 - P.S.I., Gayakwad Haveli Police Station. He prepared the panchnama of the place of incident. 2.03. Thereafter, the investigation was handed over to P.I. (Second), Mr. B.K. Ayer - P.W. No. 13. Prior thereto, P.W. No. 9 recorded statement of three persons namely Abdul-Rasulbhai Abdul-Razak Shekh, Valubhai Sulemanbhai Patel and Ormanbhai Lalmohmadbhai. During the course of the investigation, P.W. No. 13 - investigating officer - B.K. Ayer recorded statements of relatives of the victim. He also recorded statement of father of the prosecutrix. On 30/1/2002, the prosecutrix appeared in the police station along with the original accused No. 1. He arrested the original accused No. 1 - -Akbarkhan alias Pilot as well as prosecutrix, by drawing panchnama. He also recorded statement of father of the prosecutrix. On 30/1/2002, the prosecutrix appeared in the police station along with the original accused No. 1. He arrested the original accused No. 1 - -Akbarkhan alias Pilot as well as prosecutrix, by drawing panchnama. He sent the prosecutrix as well as original accused No. 1 - Akbarkhan alias Pilot to the Civil Hospital for medical examination. He also prepared panchnama of the place of incident shown by the accused No. 1 - Akbarkhan alias Pilot. The prosecutrix refused to go with her parents and therefore, as per the desire of the prosecutrix, the learned Metropolitan Magistrate ordered to sent her to Vikas Gruh, Odhav (Nari Saurakshan Gruh). That, thereafter, after a period of 13 days, pursuant to the order passed by the learned Metropolitan Magistrate, the custody of the prosecutrix was handed over to her father. 2.04. That again statement of the prosecutrix was recorded on 19/2/2002. 2.05. The investigating officer also collected documentary evidence to prove the age of the victim - prosecutrix. As per the said Certificate, the age of the victim was 16 years and 7 months on the date of the commission of the alleged offence. 2.06. During the course of the investigation, names of other accused came to be disclosed and therefore, they came to be arrested by the said investigating officer. 2.07. That thereafter a report was submitted to add the offence under section 373 of the Indian Penal Code. 2.08 That at the conclusion of the investigation, investigating officer filed chargesheet against all the accused for the offences punishable under sections 363, 366, 376, 114, 372 and 373 of Indian Penal Code and under section 6A and 6B of Immoral Traffic (Prevention) Act in the court of learned Metropolitan Magistrate, Ahmedabad. 2.09. As the case was exclusively triable by the learned Court of Sessions, the learned Metropolitan Magistrate committed the case to the learned City Sessions Court, Ahmedabad, which was numbered as Sessions Case No. III of 2003 which was thereafter transferred to the learned Additional City Sessions Judge, Ahmedabad. 2.10. That the learned trial court framed Charge against the accused for the offences punishable under sections 363, 366, 376, 114, 372 and 373 of Indian Penal Code and under section 6A and 6B of Immoral Traffic (Prevention) Act. 2.11. 2.10. That the learned trial court framed Charge against the accused for the offences punishable under sections 363, 366, 376, 114, 372 and 373 of Indian Penal Code and under section 6A and 6B of Immoral Traffic (Prevention) Act. 2.11. All the accused pleaded not guilty and therefore, they came to be tried by the learned trial court for the aforesaid offences. 2.12. At this stage, it is required to be noted that initially original accused Nos. 1 to 6 were chargesheeted for the offences punishable under sections 363, 366, 376, 114 of Indian Penal Code only. However, thereafter, additional chargesheet was filed against the accused Nos. 2, 3, 4 and 7 for the offences punishable under section 372 read with 6A and 6B of Immoral Traffic (Prevention) Act and further additional chargesheet was filed against the original accused No. 7 for the offence punishable under section 373 of Indian Penal Code. 2.13. As observed hereinabove, all the accused pleaded not guilty and therefore, all of them came to be tried by the learned trial court for the aforesaid offences. 2.14. To prove the case against the original accused, the prosecution examined the following witnesses: Oral Evidence PW No. Particulars Ex No. 1 Mimtajbibi Shekh 17 2 Mahejabin 19 3 Nurmohmad Mansuri – witness who registered the birth date of the victim 31 4 Sumanlal Srimali – Medical Officer 33 5 Firozbhai Dhodvala 40 6 Nathlal Shetty 42 7 Hiralal Vyas 49 8 Amarnath Tiwari 51 9 Kantilal Ratohd – PSI who registered the FIR 53 10 Vijaybhai Patel 55 11 Mohmad Faruk Shekh 58 12 Jetubha Chudasama PSI 59 13 Bharatbhai Ayar PI 62 2.15. Through the aforesaid witnesses, the prosecution brought on record the following documentary evidence: Documentary Evidence Sr. No. Particulars Ex.No. 1 Complaint 18 2 Entry of birth of the victim in the Register of Birth 32 3 Panchnama near the house of the complainant 50 4 Panchnama of the clothes of the Mahejabin amd accused No.1 47 5 Panchnama of the clothes of the accused No.1 52 6 Muddamal Ravangi Nondh. 65 7 Receipt of FSL 66 8 Medical certificate of Mahejabin 34 9 Medical certificate of accused Akbar 37 10 Medical certificate of accused Ashram 38 11 FSL Report 68 12 Serological Report 69 13 Panchnama of the Kinetic Honda 41 2.16. 65 7 Receipt of FSL 66 8 Medical certificate of Mahejabin 34 9 Medical certificate of accused Akbar 37 10 Medical certificate of accused Ashram 38 11 FSL Report 68 12 Serological Report 69 13 Panchnama of the Kinetic Honda 41 2.16. After the closing pursis was submitted by the prosecution, Further Statement of the accused under section 313 of the Code of Criminal Procedure came to be recorded and they stated that false case has been filed against them. 2.17. The original accused No. 5 - Gulam-Rasul stated that he accompanied the prosecutrix to take her to the police station only and original accused No. 1 stated in his Further Statement that in fact, he was married, however the prosecutrix wanted to marry him and therefore, he told the prosecutrix to go, however, she told that if the original accused No. 1 that if he does not marry her, she will file false case against him. The original accused No. 7 also denied having committed any offence and stated that a false case has been filed against her. At the conclusion of the trial, on appreciation of evidence and by giving cogent reasons and findings, by the impugned judgment and order, the learned trial court has acquitted the accused for the offences for which they were tried. 2.18. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred present appeal under section 378 of the Code of Criminal Procedure. 3. Ms. Nisha Thakore, learned Additional Public Prosecutor has appeared on behalf of the State and Mr. J.B. Dastoor, learned advocate has appeared on behalf of the respondent No. 3 - original accused No. 3, Mr. Harshad K. Patel, learned advocate has appeared on behalf of the respondent No. 7 - original accused No. 7 and Mr. Pratik Barot, learned advocate has appeared on behalf of the respondent No. 2-original accused No. 2. 4. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned trial court has materially erred in acquitting the accused for the offences for which they were tried. 4.01. Ms. 4. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned trial court has materially erred in acquitting the accused for the offences for which they were tried. 4.01. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that in the facts and circumstances of the case, the prosecutrix has fully supported the case of the prosecution and therefore, the learned trial court ought to have convicted the original accused relying upon the deposition of the prosecutrix - P.W. No. 2 who has been examined at 19. It is submitted that when the prosecutrix has fully supported the case of the prosecution, her deposition/evidence is not required to be further corroborated by other evidence. It is submitted that therefore, in the facts and circumstances of the case the learned trial court ought to have convicted the original accused relying upon and considering the evidence of the prosecutrix - P.W. No. 2. 4.02. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that the prosecutrix in her deposition has categorically stated that the original accused Nos. 1, 5 and 6 had sexual intercourse with her against her will and wish. It is submitted that even the prosecution has been successful in proving the case against other accused more particularly original accused Nos. 2, 3, 4 and 7 for the offences punishable under sections 372 and 373 read with section114 of Indian Penal Code and under section 6A and 6B of Immoral Traffic (Prevention) Act. It is submitted that in the present case, the learned trial court has materially erred in discarding the deposition of the prosecutrix and therefore, the learned trial court has materially erred in acquitting the original accused. 4.03. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that the learned trial court has materially erred in acquitting the original accused by discarding the deposition of the prosecutrix which has resulted into miscarriage of justice. No other submissions have been made. By making above submissions, it is requested to allow the present appeal and quash and set aside the impugned judgment and order of acquittal and consequently convict the original accused for the offences for which they were tried. No other submissions have been made. By making above submissions, it is requested to allow the present appeal and quash and set aside the impugned judgment and order of acquittal and consequently convict the original accused for the offences for which they were tried. Present appeal is opposed by Mr. J.B. Dastoor, Mr. Harshad K. Patel, and Mr. Pratik Barot, learned advocates appearing on behalf of the respondents - original accused. 5. The learned advocates appearing on behalf of the respective accused have vehemently submitted that, as such the present appeal is an appeal against the order of acquittal. It is submitted that as per the catena of decisions of the Hon'ble Supreme Court as well as this Court unless and until the findings recorded by the learned trial court while acquitting the original accused are found to be perverse and/or contrary to the evidence on record, which has resulted into miscarriage of justice, interference of this Court in exercise of appellate jurisdiction is not warranted. 5.01. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even as per the catena of decisions of the Hon'ble Supreme Court as well as this Court even if on appreciation of evidence two views are possible and while acquitting the original accused, the learned trial court has taken one view and has acquitted the original accused, in that case also order of acquittal is not required to be interfered with in exercise of appellate jurisdiction. 5.02. The learned advocates appearing on behalf of the respective accused have vehemently submitted that in the present case, the deposition of the prosecutrix is full of material contradictions. It is submitted that what was stated by the prosecutrix before the Doctor before whom the prosecutrix was produced for medical examination and what she has stated before the concerned investigating officer, is just denied by the prosecutrix in her deposition before the Court and she has stated altogether a new story. It is submitted that there are material contradictions in her deposition before the Court and in her statements before the police and even her statement before the Doctor in the form of history. It is submitted that therefore, the learned trial court has rightly discarded the deposition of the prosecutrix and has rightly acquitted the original accused. 5.03. It is submitted that there are material contradictions in her deposition before the Court and in her statements before the police and even her statement before the Doctor in the form of history. It is submitted that therefore, the learned trial court has rightly discarded the deposition of the prosecutrix and has rightly acquitted the original accused. 5.03. The learned advocates appearing on behalf of the respective accused have vehemently submitted that there is material improvement in the story by the prosecutrix in her deposition before the Court. It is vehemently submitted that before the investigating officer as well as Doctor, she has categorically stated that she was knowing the original accused No. 1 as well as accused No. 6 as she wanted to marry the original accused No. 6 - Ashraf and therefore, she had voluntarily gone from her parental house. 5.04. The learned advocates appearing on behalf of the respective accused have vehemently submitted that the prosecutrix has categorically stated before the Doctor while giving history that the original accused No. 1 had not done anything and that the accused No. 6 had intercourse with her with her consent. It is submitted that at that time, no other allegations were made against any other accused in the history before the Doctor. It is submitted that the Doctor before whom the prosecutrix had given history has been examined by the prosecution as P.W. No. 4 at Ex. 33 and in the injury certificate produced at Ex. 34, history given by the prosecutrix has been recorded. It is submitted that four times statements of the prosecutrix were recorded by the investigating officer and in all the statements the prosecutrix has categorically stated that she was in love with the accused No. 6 Ashraf and she wanted to marry him and therefore, she had voluntarily ran away. It is submitted that thereafter before the Court and in her deposition, the prosecutrix has stated altogether a different story and even she has gone to the extent saying that she was not even knowing the original accused No. 1 - Akbarkhan alias Pilot and original accused No. 6 - Ashraf, however, subsequently she has admitted that she was knowing both of them. 5.05. 5.05. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even the prosecutrix has moved with the original accused No. 1 and/or from one place to another place and at different places, however, at no point of time, she shouted for any help. It is submitted that if she was kidnapped and/or abducted by the original accused No. 1 and/or original accused No. 6 against her will and wish and by force, in that case, she would have shouted for help. 5.06. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even the prosecutrix has gone to the extent and even she has disputed and/or doubted the order passed by the learned Metropolitan Magistrate, Ahmedabad by which she was sent to Nari Saurakshan Gruh - Vikas Gruh, Odhav. 5.07. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even in her deposition the prosecutrix has stated that as such when she appeared before the police on 30/1/2002, she wanted to go with her parents, however, as the learned Metropolitan Magistrate, Ahmedabad passed order to send her to the Nari Saurakshan Gruh, Odhav, she agreed to go to the Nari Saurakshan Gruh, Odhav. 5.08. The learned advocates appearing on behalf of the respective accused have vehemently submitted that investigating officer in his deposition has categorically stated that the prosecutrix had refused to go with her parents and she desired to go to Nari Saurakshan Gruh and therefore, the learned Metropolitan Magistrate, Ahmedabad passed order to send her to the Nari Saurakshan Gruh, Odhav. It is submitted that thereafter, after 13 days on an application given by the father of the prosecutrix, her custody was handed over to her father. 5.09. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even medical evidence does not support that she was subjected to sexual intercourse by the original accused No. 1 and/or original accused No. 6 by force and/or against her wish and will. 5.10. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even the deposition of the prosecutrix is not corroborated by other independent evidence. 5.11. 5.10. The learned advocates appearing on behalf of the respective accused have vehemently submitted that even the deposition of the prosecutrix is not corroborated by other independent evidence. 5.11. The learned advocates appearing on behalf of the respective accused have vehemently submitted that there can be conviction solely relying upon deposition of the prosecutrix without any corroboration provided that her testimony is found to be reliable and trustworthy. It is submitted that in the present case, as observed and held by the learned trial court, prosecutrix is not reliable and trustworthy and it is not safe to convict the accused solely relying upon the deposition of the prosecutrix. 5.12. The learned advocates appearing on behalf of the respective accused have vehemently submitted that the reasons given by the learned trial court discarding the deposition of the prosecutrix and/or not relying upon the deposition of the prosecutrix and thereafter, on appreciating the evidence on record when the learned trial court has acquitted the original accused, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. By making above submissions, it is requested to dismiss the present appeal. 6. Heard the learned advocates appearing on behalf of the respective parties at length. We have perused the impugned judgment and order passed by the learned trial court. We have also gone through and considered the findings recorded by the learned trial court while acquitting the original accused. We have re-appreciated the entire evidence on record. 6.01. At the outset, it is required to be noted that cogent reasons have been given by the learned trial court while acquitting the original accused. On re-appreciating the entire evidence on record, we are of the opinion that the findings recorded by the learned trial court are on appreciation of evidence more particularly deposition of the original complainant - P.W. No. 1 Ex. 17, prosecutrix P.W. No. 2 - Ex. 19, Dr. Sumanlal Srimali - P.W. No. 4 - Ex. 33 and investigating officer Mr. A. Bharatbhai Ayer - P.W. No. 13 - Ex. 62. The findings recorded by the learned trial court cannot be said to be either perverse and/or contrary to the evidence on record. 6.02. At the outset, it is required to be noted that the prosecution has mainly relied upon the deposition of prosecutrix - P.W. No. 2. A. Bharatbhai Ayer - P.W. No. 13 - Ex. 62. The findings recorded by the learned trial court cannot be said to be either perverse and/or contrary to the evidence on record. 6.02. At the outset, it is required to be noted that the prosecution has mainly relied upon the deposition of prosecutrix - P.W. No. 2. In her deposition, she has tried to support the case of the prosecution. However, it is required to be noted that her deposition before the Court is full of material contradictions and not only the same is full of material contradictions, but there is material improvement in the case before the Court. She has stated before the Court just contrary to what she has stated before the Dr. Sumanlal Srimali - P.W. 4 - Ex. 33 while recording history and before whom she was taken to the hospital for medical examination. In the history before the Doctor she has stated just contrary to what she has stated in her statements before the investigating officer. 6.03. From the evidence on record it is clear that before the Doctor and police when earlier she appeared before the police on 13/1/2002 and thereafter when her statements were recorded by the investigating officer, it was the case of consent. She has categorically stated that she was in love with the original accused No. 6 - Ashraf and she wanted to marry him and hence she voluntarily left her parental house. She has categorically stated that nothing was done by the original accused No. 1 and she had sexual intercourse with the original accused No. 6 with her consent. Thereafter, before the Court she has changed her stand and has improved the story and she has come out with a different story that she was abducted and kidnapped by the original accused No. 1 and original accused No. 6 and that number of allegations were made against other accused which were not made by her at any point of time. It is also required to be noted that the history given by the prosecutrix before the Dr. Sumanlal Srimali - P.W. No. 4 Ex. 33 has been established and proved by leading cogent evidence i.e. examining Dr. Sumanlal Srimali - P.W. 4 Ex. 33 as well as injury certificate produced at Ex. 34. 6.04. It is also required to be noted that the history given by the prosecutrix before the Dr. Sumanlal Srimali - P.W. No. 4 Ex. 33 has been established and proved by leading cogent evidence i.e. examining Dr. Sumanlal Srimali - P.W. 4 Ex. 33 as well as injury certificate produced at Ex. 34. 6.04. It is also required to be noted that even the medical evidence does not support the case of the prosecutrix that the prosecutrix was subjected to rape. On the contrary, it was a clear case of consent. Initially she denied having known the original accused No. 1 and original accused No. 6. However, subsequently, in the cross-examination, she admitted that she was knowing original accused Nos. 1 and 6. As stated above, the medical evidence does not support the case of the prosecution. On the contrary, as per the evidence of the Dr. Sumanlal Srimali - P.W. 4 - Ex. 33, the prosecutrix was used to sexual intercourse and/or habitual. 6.05. Even the original complainant in her complaint and the deposition has categorically stated that the prosecutrix and the original accused No. 1 were knowing each other and eve on the earlier night, they were found talking and therefore, the uncle of the prosecutrix scolded. 6.06. Thus, on appreciating the deposition of the prosecutrix, we are of the opinion that the prosecutrix has not told truth before the court. She is not reliable and trustworthy. We are of the opinion that, therefore, it is not safe to convict the accused relying upon the deposition of the prosecutrix. 6.07. At this stage, decision of the Hon'ble Supreme Court in the case of Mohd. AM alias Guddu Versus State of Uttar Pradesh, reported in, (2015) 7 SCC 272 is required to be referred to and considered. In the said decision, the Hon'ble Supreme Court has held that there can be a conviction for the offences punishable under sections 376 and 366 of Indian Penal Code on sole testimony of the prosecutrix and even without corroboration, if it is unimpeachable and beyond reproach. In the said decision, the Hon'ble Supreme Court has held that there can be a conviction for the offences punishable under sections 376 and 366 of Indian Penal Code on sole testimony of the prosecutrix and even without corroboration, if it is unimpeachable and beyond reproach. It is further observed and held by the Hon'ble Supreme Court in the said decision that but when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not irreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony and in such a case, when such other evidence does not support the story of the prosecutrix, it can be discarded. 6.08. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case on hand and as observed hereinabove, on scrutiny of the evidence, more particularly deposition of the prosecutrix it is difficult to accept the version of the prosecutrix and as stated above when the prosecutrix has not stated true facts before the court, and her deposition is full of material contradictions and she is not reliable and trustworthy, we are of the opinion that it is not safe to convict the accused relying upon the deposition of the prosecutrix. There is no other direct or circumstantial evidence led by the prosecution which would lend assurance to her testimony. 6.09. Considering the evidence on record, as such it was a case of consent and the age of the prosecutrix on the date of the alleged offence was 16 years and 7 months. Therefore, the learned trial court has not committed any error in acquitting the original accused. 6.10. It is required to be noted that as such the prosecution has miserably failed to prove the case against other accused who where chargesheeted and tried for the alleged offences more particularly for the offences under sections 363, 372 and 373 of Indian Penal Code. There was no allegation against the original accused No. 5 by the prosecutrix that he had sexual intercourse with her against her wish and will, still the charge against him was for the offence under section 376 of Indian Penal Code. There was no allegation against the original accused No. 5 by the prosecutrix that he had sexual intercourse with her against her wish and will, still the charge against him was for the offence under section 376 of Indian Penal Code. As observed hereinabove, she made categorical statement before the Doctor while giving history, so recorded in the injury certificate produced at Ex. 34 that nothing was done by the original accused No. 1 and the accused No. 6 had sexual intercourse with her with her consent. The prosecution has failed to prove the case against other accused for the offence under section 6A and 6B of the Immovable Traffic Act. 6.11. Considering the aforesaid overall facts and circumstances of the case, by giving cogent reasons and recording evidence which are on appreciation of evidence, when the learned trial court has acquitted the original accused, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. The findings recorded by the learned trial court are on appreciation of evidence which can never be said to be either perverse and/or contrary to the evidence on record resulting into miscarriage of justice. Under the circumstances, we see no reason to interfere with the impugned judgment and order passed by the learned trial court. 7. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The impugned judgment and order of acquittal passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. III of 2003 acquitting the original accused for the offences punishable under sections 363, 366, 376, 114, 372 and 373 of Indian Penal Code and under section 6A and 6B of Immoral Traffic (Prevention) Act, is hereby confirmed.