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2017 DIGILAW 75 (GUJ)

State of Gujarat v. Anil Parshottambhai Vegad

2017-01-13

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. The present appeal is directed against the judgment and order of acquittal, dated 28.3.2006, passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 6, Gondal camp at Dhoraji in Sessions Case No. 55 of 2005. 2. The case of the prosecution is that a complaint came to be filed by Meenaben, the prosecutrix on 11.6.2005 whereby, she has alleged in the said complaint that the respondent accused committed rape on her without her consent, who was residing just nearby vicinity. It was also asserted in the complaint by the victim that on 11.6.2005 around 1.00 O'clock in the noon hours, the respondent accused called the prosecutrix to the house by giving reason that his mother is ill and therefore, requested her to help in household work and thereafter, by showing knife to her, the accused has committed a rape on her. Since the threat was administered by respondent accused, it has been stated that she had not informed about this incident to any other person in the family and after approximately about 7 months, when the pregnancy was visible, the mother was informed about the incident in question. It is thereafter upon advise of one Shri L.G. Babaria, a practicing lawyer in Dhoraji, a complaint came to be filed before Dhoraji Police Station for offence punishable under Section 376 and 506(2) of the IPC which has been registered as I-C.R. No. 90 of 2005. 2.1 This complaint came to be investigated by the Investigating Officer, who, thereafter, submitted a charge-sheet before the Chief Judicial Magistrate, Dhoraji and the criminal case was registered as Criminal Case No. 901 of 2005. Since the case was triable by sessions, the same was registered as Sessions Case No. 55 of 2005. The respondent accused was arrested on 11.6.2005 and pursuant to the committal order passed by the Chief Judicial Magistrate before the Sessions Court, a charge came to be framed for offence punishable under Section 376 r/w Section 506(2) of the IPC at Exh. 5. The prosecution has led the evidence in the form of oral as well as documentary and also examined several witnesses which are referred to hereinafter;- Sr. No. PW No. Name Exh. 1 1 Meenaben Bachubhai Sakaria 21 2 2 Bachubhai Bijalbhai Sakaria 23 3 3 Jayaben Bachubhai Sakaria 24 4 4 Dr. 5. The prosecution has led the evidence in the form of oral as well as documentary and also examined several witnesses which are referred to hereinafter;- Sr. No. PW No. Name Exh. 1 1 Meenaben Bachubhai Sakaria 21 2 2 Bachubhai Bijalbhai Sakaria 23 3 3 Jayaben Bachubhai Sakaria 24 4 4 Dr. Jagguben Ambikaprasad Betha 40 5 5 Dr. Hiralal Gordhanbhai Makadiya 42 6 6 Majidbhai Aushmanbhai 49 7 7 Kiritbhai Bapalsinh Jhala, PI 50 8 8 Arjunsinh Rupsinh Parmar, PI 55 Following documentary evidence have been led : 1 Complaint 56 2 Medical Certificate 41 3 Medical Certificate 48 4 Panchnama of place of incident 25 5 Arrest Panchnama 27 6 Discovery panchnama of knife 57 7 FSL Report 57 2.2 After leading the evidence, a closure pursis was given by the prosecution and subsequent thereto, a further statement of the accused also came to be recorded under Section 313 of the Cr.P.C. In the said further statement, the accused having denied the offence being committed by him, the case was then put up for trial and upon examination of the witnesses and upon considering the several documentary as well as oral depositions, by judgment and order dated 28.3.2006, the trial court was pleased to acquit the respondent accused from the charge in exercise of powers under Section 235(1) of the Cr.P.C. 2.3 It is against this judgment and order passed by the trial court, the State has approached this Court by way of present appeal under Section 378 of the Cr.P.C. The present appeal was admitted on 12.12.2007 which has come up for final disposal after the matter being ready by preparation of paper-book. 3. Mr. Hardik Soni, learned APP appearing for the State has vehemently contended that while passing the judgment and order, the trial court has committed a grave error. It has been contended that though there is a specific charge of Section 376 r/w Section 506(2) of the IPC and the evidence has corroborated the main charge, the trial court ought not to have passed an order of acquittal. It has also been contended that father as well as mother of the prosecutrix has specifically led the evidence and has explained in what circumstances, a rape has been committed by the respondent accused and the evidence of those two witnesses ought to have been given due weightage. It has also been contended that father as well as mother of the prosecutrix has specifically led the evidence and has explained in what circumstances, a rape has been committed by the respondent accused and the evidence of those two witnesses ought to have been given due weightage. Having not done so, the trial court has committed an error in passing the order. It has also been contended that the trial court has not appreciated that the prosecutrix has, at a later point of time, in cross-examination, admitted. Otherwise originally upto 6.2.2006 there was a definite version with respect to crime being committed. This aspect ought not to have been ignored by the trial court, more particularly when the prosecutrix was coming from a lower strata of society. It has also been contended by learned APP that the medical evidence is also substantiating the charge which has been levelled against the respondent accused and that evidence could not have been ignored by the trial court. It has also been contended by learned APP that there are no cogent reasons assigned to justify an oral of acquittal. 3.1 In the background of this, by taking us through the various evidences, ultimately learned APP has contended that the order deserves to be corrected and appropriate punishment be inflicted upon and this judgment and order since suffers from the vice of non-application of mind and perverse to the material on record, the same deserves to be corrected. No other submissions are made by learned APP. 4. To oppose the stand taken by Mr. Hardik Soni, learned APP, Mr. Premal Joshi, learned advocate for the respondent accused has vehemently contended that there are justifiable reasons assigned by the trial court for passing an order of acquittal. It has been contended by Mr. Joshi that even the prosecutrix herself has admitted the physical relations with the respondent accused on her volition. It has also been contended that the respondent accused as well as prosecutrix were major and the evidence is reflecting that there is no element of not consenting to the physical relations between them. By contending this, Mr. Joshi has referred to the evidence of prosecutrix which is at Exh. It has also been contended that the respondent accused as well as prosecutrix were major and the evidence is reflecting that there is no element of not consenting to the physical relations between them. By contending this, Mr. Joshi has referred to the evidence of prosecutrix which is at Exh. 21 at Page-41 of paper-book compilation in which, in cross-examination which is recorded on 14.2.2006, it has specifically been asserted by the prosecutrix that on frequent occasions, the respondent accused as well as prosecutrix had the physical relations. It has also been borne out from the cross-examination that on frequent occasions, on her own volition and consent, both were having and keeping relations and therefore, in the background of this evidence of prosecutrix herself, Mr. Joshi has stated that everything was with consent of prosecutrix herself and therefore, the ingredients of Section 376 r/w Section 506 of the IPC are completely missing. It has also been contended by Mr. Joshi that the mother - Jayaben Bachubhai, who was examined at Exh. 24, she has specifically stated that a complaint at a belated stage has been filed after taking advise from the concerned lawyer. It has also been borne out from the deposition of the mother that the entire issue between the prosecutrix and the accused is settled down and therefore, it appears from the record, as contended by Mr. Joshi, that there is no error committed by the trial court based upon such kind of evidence which is reflecting. Mr. Joshi has further contended that the deposition of father which is recorded at Exh. 23, has also a reflection that the complaint came to be filed after taking advise from the concerned lawyer. However, that incident in question appears to have been resolved. In the background of this fact, Mr. Joshi has further drawn the attention of the Court about the medical evidence which is reflecting at Exh. 42 and submitted that no other contradictory version is coming out to dislodge the finding arrived at by the trial court. It is also coming out from the evidence that DNA test has also not been undertaken and therefore, in the absence of any corroborative material of any nature to justify the stand of the prosecution, the order passed by the trial court is just and proper and it requires no interference. No other submissions are made by Mr. Joshi. 5. It is also coming out from the evidence that DNA test has also not been undertaken and therefore, in the absence of any corroborative material of any nature to justify the stand of the prosecution, the order passed by the trial court is just and proper and it requires no interference. No other submissions are made by Mr. Joshi. 5. Having heard the learned advocates for the parties, having gone through the material on record, more particularly from the evidence on record of the prosecutrix as well as the mother, it is emerging that for a pretty long period, the physical relationship with the respondent accused was prevailing. It is also borne out from the record that the victim is aged 23-24 years and therefore, when this act of physical relationship is out of consent of both the parties, it appears that the offence of Section 376 is not made out and established. The version of prosecutrix, more particularly cross-examination which is recorded on 14.2.2006 has specifically asserted that time and again both had with consent physical relationship and therefore, the ingredients of Section 376 are completely missing which has rightly been appreciated by the trial court. 6. In addition thereto, it is also found from the record that the medical evidence is also not supporting the case of the prosecution and further it appears from the evidence of mother that the entire issue has already been resolved which is evident from the version of the mother of prosecutrix and therefore, in that view of the matter, when the evidence which is appreciated by the trial court reflecting no ingredient of Section 376 emerging, the reasons which are assigned are justified in the eye of law and in our considered opinion, there is no error committed by the trial court. In addition thereto, we have independently gone through the evidence of prosecutrix as well as parents of the prosecutrix which is not reflecting anything which can permit us to dislodge the finding arrived at by trial court and therefore, considering overall material on record and overall view of the evidence on record, we are of the considered opinion that the judgment and order passed by the trial court requires no interference. Relevant decisions on the issue of exercise of appellate jurisdiction are reproduced hereinafter. Relevant decisions on the issue of exercise of appellate jurisdiction are reproduced hereinafter. 6.1 In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 6.2 Further, in the case of Chandrappa v. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 6.3. The Supreme Court in case of Golbar Hussain & Ors. v. State of Assam & Anr., reported in (2015) 11 SCC 242, has held in Para. 6, 7 and 8 as under : "6. The present case involves consideration on two issues. First being the powers of appellate Court while dealing with an appeal against an order of acquittal. Second, being the sufficiency of the testimonies of PW-4 and PW-5 to convict the accused persons without any corroboration from an independent witness and the relevancy of the statement of a hostile witness involving appreciation of the statement of PW-8 who turned hostile. 7. On the first issue, the legal principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal, have been reiterated by this Court in a catena of cases. This Court culled down five general principles in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 , as follows: "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (Emphasis supplied) 8. The Court referred to Kallu alias Masih and Ors. v. State of M.P., (2006) 10 SCC 313 , in the above-mentioned judgment, where it held that; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. It will not reverse the decision of the trial court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court'." 6.4 Yet in another decision in case of Upendra Pradhan v. State of Orissa, reported in (2015) 11 SCC 124, the Supreme Court while dealing with an order of the High Court in acquitting appeal, has observed as under : "14. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699 : ( AIR 2004 SC 3249 ), this Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. xxx xxx xxx xxx xxx 33. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. xxx xxx xxx xxx xxx 33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld." (Emphasis Supplied) 15. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : ( AIR 2003 SC 3601 ), wherein this Court observed thus: "7. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference." (Emphasis Supplied). 16. Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of accused appellant, stands good. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference." (Emphasis Supplied). 16. Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of accused appellant, stands good. The Additional Sessions Judge was right in granting him benefit of doubt. The view which favours the accused/appellant has to be considered and we discard the opposite view which indicates his guilt. 17. We are also of the view that the High Court should not have interfered with the decision taken by the Additional Session Judge, as the judgment passed was not manifestly illegal, perverse, and did not cause miscarriage of justice. On the scope of High Court's revisional jurisdiction, this Court has held in Bindeshwari Prasad Singh v. State of Bihar, (2002) 6 SCC 650 : ( AIR 2002 SC 2907 ), "that in absence of any manifest illegality, perversity and miscarriage of justice, High Court would not be justified interfering with the concurrent finding of acquittal of the accused merely because on re-appreciation of evidence it found the testimony of PWs. to be reliable whereas the trial Court had taken an opposite view." This happens to be the situation in the matter before us and we are of the view that the High Court was wrong in interfering with the order of acquittal of Upendra Pradhan passed by the Additional Sessions Judge. 18. The Second ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. 1 and P.W.7 should not have been considered, as they were interested witnesses, holds no teeth. We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal, (2013) 14 SCC 581 . 22. Therefore, in the light of the above discussion, we allow this appeal and set aside the impugned judgment and order passed by the High Court. The appellant has been released on bail vide this Court's order dated 15.04.2014. Ishaque v. State of West Bengal, (2013) 14 SCC 581 . 22. Therefore, in the light of the above discussion, we allow this appeal and set aside the impugned judgment and order passed by the High Court. The appellant has been released on bail vide this Court's order dated 15.04.2014. His bail bonds are discharged." 6.5 In another decision delivered by the Supreme Court in case of Sureshkumar v. State of Haryana, reported in (2013) 16 SCC 353 , it has observed that if two views are possible, the High Court should lead in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para. 55, 56 and 57 which read as under : "55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal. 56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598) as follows: "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. There must also be substantial and compelling reasons for holding that the trial court was wrong. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive." 57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : (2013 AIR SCW 6180) particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : ( AIR 2012 SC 2297 : 2012 AIR SCW 3318) to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed: "The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : ( AIR 2011 SC 2271 : 2011 AIR SCW 3889) Govindaraju v. State, (2012) 4 SCC 722 : ( AIR 2012 SC 1292 : 2012 AIR SCW 1994)." 7. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : ( AIR 2011 SC 2271 : 2011 AIR SCW 3889) Govindaraju v. State, (2012) 4 SCC 722 : ( AIR 2012 SC 1292 : 2012 AIR SCW 1994)." 7. In view of aforesaid proposition of law on exercise of jurisdiction while dealing with acquittal appeal, having gone through the proposition and co-related the same with the facts of the present case, we are of the considered opinion that the State has not made out any case which can permit us to interfere with the judgment and order passed by the trial court. 8. In the result, the present appeal is dismissed. The judgment and order of acquittal, dated 28.3.2006, passed in Sessions Case No. 55 of 2005, by the learned Additional Sessions Judge and Presiding Officer, 6th Fast Track Court, Gondal camp at Dhoraji is hereby confirmed. Bail bond, if any, shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith.