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2016 DIGILAW 96 (GUJ)

State of Gujarat v. Vipulbhai Trikambhai Bhoi

2016-01-13

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal dated 06.11.2007 passed by the learned Sessions Judge, Anand (hereinafter referred to as "trial Court") in Sessions Case No. 54/2007 by which the learned trial Court has acquitted the original accused for the offences punishable under sections 376, 313, 406, 506(2) and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), the State has preferred the present Criminal Appeal under section378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"). 2. The prosecution case is that the complainant - prosecutrix Anuben had friendship with accused No. 1 which was converted into love. It is further case of the prosecution that accused No. 1 and victim used to meet each other regularly. That on 16.12.2006, accused No. 1 made telephonic call on mobile of the prosecutrix and called her at Railway Station at 8.00 a.m. in the morning where accused received her and they went to Rajdeep Guest House and accused No. 1 had booked Room No. 102. It is further the prosecution case that thereafter accused made fascinating promise to the prosecutrix and accused No. 1 forcefully committed rape on the prosecutrix for three times. It is further the case of the prosecution that on 05.01.2007, prosecutrix came to know that she was pregnant. It is further case of the prosecution that the prosecutrix was given some pills and the pregnancy was terminated. It is further case of the prosecution that the prosecutrix returned to her home where she informed about the same to her parents. It is further case of the prosecution that the prosecutrix and her family member went to the house of the accused No. 1 for talking about the marriage of the prosecutrix and the accused No. 1 but accused Nos. 2 and 3 got angry with accused No. 1 and threatened to kill if the prosecutrix come earlier at the house of the accused persons. It is thus the case of the prosecution that prosecutrix was raped by the accused No. 1 and was threatened by accused Nos. 2 and 3 and it is under these circumstances the FIR being I-CR No. 51/2007 came to be registered with Anand Town Police Station, Anand. 2.1 That the investigation was carried out by the Police Officer of Anand Town Police Station. 2 and 3 and it is under these circumstances the FIR being I-CR No. 51/2007 came to be registered with Anand Town Police Station, Anand. 2.1 That the investigation was carried out by the Police Officer of Anand Town Police Station. During the course of investigation the Investigating Officer collected evidence against the accused, he prepared the panchnama of the place of incident. He also recovered the clothes of the victim and drawn the panchnama of recovery of clothes of the victim. He also recorded the statement of the concerned witnesses. He sent the prosecutrix/victim to the Anand Hospital for medical investigation. He collected other documentary evidences. On conclusion of the investigation the Investigating Officer filed the charge-sheet against the accused in the Court of learned Chief Judicial Magistrate, Anand for the offences punishable under sections 376, 313, 406, 506(2) and 114 of the IPC. As the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate committed the case to the Sessions Court, Anand, which was numbered as Sessions Case No. 54/2007. 2.2 That the learned trial Court framed the charge against the accused for the aforesaid offences. The accused pleaded not guilty and therefore, they came to be tried by the learned trial Court for the aforesaid offences. 2.3 To prove the case against the accused, the prosecution examined the following witnesses. PW No. Name of witness Exh. No. 1 Dr. Anshul Sureshbhai Shah 12 2 Dr. Arvindbhai Jethabhai Dalwadi 15 3 Anuben Arvindbhai Shah 32 4 Krishnaben Arvindbhai Shah 34 5 Amrutbhai Ramabhai 35 6 Samarthdan Sabudan Gadhvi 38 Through the aforesaid witnesses the prosecution brought on record the following documentary evidences. Sr. No. Details of documentary evidence Exh. PW No. Name of witness Exh. No. 1 Dr. Anshul Sureshbhai Shah 12 2 Dr. Arvindbhai Jethabhai Dalwadi 15 3 Anuben Arvindbhai Shah 32 4 Krishnaben Arvindbhai Shah 34 5 Amrutbhai Ramabhai 35 6 Samarthdan Sabudan Gadhvi 38 Through the aforesaid witnesses the prosecution brought on record the following documentary evidences. Sr. No. Details of documentary evidence Exh. No. 1 Original complaint of the complainant 33 2 Original panchnama of physical condition of accused No. 1 21 3 Panchnama of clothes of the victim 22 4 Copy of Yadi written to Medical Officer, Anand Nagarpalika 23 5 Original medical certificate of victim 18 6 Original yadi written by Medical Officer, Anand Nagarpalika to General Hospital 19 7 Original medical certificate of accused 20 8 Zerox copy of extract of register of Hotel Rajdeep 24 9 Original yadi written for investigation of offence 36 10 Copy of yadi written to Superintendent, Anand Women Protection Home, Anand 39 11 Copy of yadi written to superintendent, Anand Women Protection Home, Anand 40 12 Zerox of application given by application for doing report 13 13 Zerox copies Mark 14/1-2 of the reports of Anand Hospital, Anand 14 14 Copy of Mudamal Despatch Note 25 15 Original receipt of FSL 26 16 Zerox copy produced showing original station diary 37 17 Panchnama mark 10/2 41 2.4 That after closing purshis submitted by the prosecution, further statement of the accused came to be recorded under section 313 of the CrPC and the accused denied having committed any offence and they stated that a false case is filed against them. That at the end of conclusion of the trial and on appreciation of evidence, by impugned judgment and order the learned trial Court has acquitted the original accused. Hence, the State has preferred the present Criminal Appeal challenging the impugned judgment and order of acquittal. 3. Shri K.P. Raval, 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 committed a grave error in acquitting the original accused. 3.1 It is submitted that the learned trial Court has failed to appreciate the oral evidence of 6 witnesses who have been examined by the prosecution as well as 17 documentary evidences, which have been produced by the prosecution in support of its case in its true and proper perspective. 3.1 It is submitted that the learned trial Court has failed to appreciate the oral evidence of 6 witnesses who have been examined by the prosecution as well as 17 documentary evidences, which have been produced by the prosecution in support of its case in its true and proper perspective. It is submitted that the learned trial Court has committed a grave error on the record of the case by not properly appreciating these material available on the record of the case. 3.2 It is further submitted by Shri K.P. Raval, learned Additional Public Prosecutor that the learned trial Court erred in holding that prosecution has failed to prove beyond reasonable doubt that accused persons with the help of each other induced the victim to eat some pills due to which the pregnancy of the victim was terminated and thereby the accused have committed an offence punishable under section 313 of the IPC. 3.3 It is submitted by Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State that the learned trial Court has erred in observing that prosecution has failed to prove beyond reasonable doubt that on 11.02.2007, accused persons were informed about the marriage with prosecutrix, accused persons driven out the prosecutrix and her parents by threatening them to kill if they come twice at their house for the same and thereby accused persons have committed an offence punishable under sections 506(2) and 114 of the IPC. 3.4 It is further submitted that the learned trial Court has materially erred in disbelieving the deposition of the prosecutrix who was examined at Exh. 32. It is submitted that the learned trial Court has materially erred in not believing the deposition of the prosecutrix in which she has stated that she was induced by the accused who gave the promise that he will marry her and because of that she had sexual intercourse with the accused. 3.5 It is further submitted by Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State that the learned trial Court has materially erred in not appreciating the evidence of Dr. Anshul Shah and Dr. Arvind Dalwadi and has failed to properly appreciate the medical evidence on record of the case. 3.5 It is further submitted by Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State that the learned trial Court has materially erred in not appreciating the evidence of Dr. Anshul Shah and Dr. Arvind Dalwadi and has failed to properly appreciate the medical evidence on record of the case. It is submitted that if the deposition of the aforesaid two doctors and the medical evidence would have been considered properly and in right perspective, in that case it is very clear that the prosecutrix was pregnant. 3.6 It is further submitted by Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State that therefore, the finding recorded by the learned trial Court while acquitting the original accused are perverse and on misreading and/or not properly appreciating the evidence on record and thereby it has resulted into miscarriage of justice. Making above submissions, it is requested to interfere with the impugned judgment and order of acquittal passed by the learned trial Court and convicting the original accused for the offences for which they were tried. 4. Though served, nobody appears on behalf of the respondents herein - original accused. 5. We have heard Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State at length. We have gone through the impugned judgment and order of acquittal passed by the learned trial Court and we have re-appreciated the entire evidence on record, both oral as well as documentary. At the outset it is required to be noted that this is an appeal under section 378 of the CrPC against the impugned judgment and order of acquittal passed by the learned trial Court. As per the settled proposition of law if the finding recorded by the learned trial Court are on appreciation of evidence and the view taken by the learned trial Court is plausible and even if on evidence two views are possible and the learned trial Court has taken one view in favour of the accused, the Appellate Court is not justified in interfering with the judgment and order of acquittal passed by the learned trial Court. 5.1 Having heard Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State and considering the evidence on record, it appears that it was a case of consent by the victim/prosecutrix. 5.1 Having heard Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State and considering the evidence on record, it appears that it was a case of consent by the victim/prosecutrix. It is an admitted position that even according to the prosecutrix/victim the date of incident was 16.12.2006 and the FIR came to be lodged for the first time on 11.02.2007 i.e. after a long period of approximately two months. There is no plausible explanation in filing the FIR belatedly. 5.2 It is also required to be noted that even according to the victim, she went to the guest house on her own. Both of them stayed in the guest house for about two hours and thereafter both of them went to the Anand Railway Station. At no point of time thereafter the prosecutrix/victim did not disclose anything about any force and/or having sexual intercourse by the accused against her will and wish including to her mother. Even as admitted by the prosecutrix/victim, even thereafter they met 7 to 8 times at Anand. Even there are contradictions in the medical report that the victim was pregnant and thereafter accused and his family members gave the pills due to which the pregnancy was terminated. At this stage it is required to be noted that according to the prosecutrix/victim, she came in contact with the accused through one Gajuben, through whom the victim met the accused. However, neither the statement of Gajuben has been recorded by the police nor she has been examined. Considering the overall facts and circumstances of the case and the evidence on record and on appreciation of evidence, the learned trial Court has held that it was a case of consent by the victim/prosecutrix and thereby giving cogent reasons the learned trial Court has acquitted the original accused. The findings recorded by the learned trial Court are on appreciated of evidence and the same cannot be said to be either perverse and/or contrary to the evidence on record which calls for interference of this Court in exercise of the appellate jurisdiction. 6. In view of the above and for the reasons stated above, we see no reason to interference with the impugned judgment and order of acquittal passed by the learned trial Court. Under the circumstances, present Criminal Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed.