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2022 DIGILAW 107 (GUJ)

Jignaben v. State of Gujarat

2022-01-19

S.H.VORA, SANDEEP N.BHATT

body2022
JUDGMENT : S.H. Vora, J. 1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 24/09/2021 passed by the learned Addl. Sessions Judge, Tharad at Banaskantha in Sessions Case No. 7 of 2019 for the offences under sections 366, 376 and 506(2) of IPC, the applicant-original complainant has preferred the captioned appeal under Section 372 of the Code of Criminal Procedure, 1973 ("the Code" for short). 2. Briefly stated; the case of the prosecution is that respondent No. 2-accused started talking with the complainant on 03/07/2018 at about 18:00 hours and thereafter respondent No. 2 gave SIM card to complainant and started bad talks with the complainant and when complainant asked not to talk such things, respondent No. 2 asked complainant to return back the SIM card and called her from Pavdasanthi to Dhanera and from there, complainant was called to Deesa. It is the case of prosecution that respondent No. 2 threatened the complainant that if she does not come with him, the accused would kill her mother and thus took the complainant from Deesa to Ahmedabad and from there, the complainant was taken to Virpur and then Somnath and then Mata no Madh and thereafter the complainant was taken to Naransarovar and thereby accused committed sexual intercourse with complainant against her will and wish. Thus the complainant lodged the complaint with regard to the incident before Tharad Police Station, which was registered as I-C.R. No. 101 of 2018 for the aforesaid offence. 3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Tharad. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Banaskantha at Tharad as provided under section 209 of the Code. 4. Upon committal of the case to the Sessions Court, Tharad, learned Sessions Judge framed charge at Exh. 6 against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried. 5. 4. Upon committal of the case to the Sessions Court, Tharad, learned Sessions Judge framed charge at Exh. 6 against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried. 5. In order to bring home charge, the prosecution has examined 09 witnesses and also produced various documentary evidence before the learned trial Court which reads thus: Documentary Evidence 6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s. 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt. 7. We have heard learned Advocate Ms. Kapadia for the original complainant and have minutely examined the documentary evidence provided to us by learned Advocate during the course of hearing. It appears that complainant and respondent No. 2 are knowing to each other and she was aged about 19 years at relevant time of incident. It is deposed by her that respondent No. 2 started talking bad things and further on her refusal to talk in that manner, respondent No. 2 asked her to return back SIM card. In order to return SIM card, she went to Dhanera and from there she went to Deesa. Not only that, she travelled with respondent No. 2 at various places and through public transport and visited various religious places and further she also sold her ornaments for Rs. 12,000/- in order to pay rent of guesthouse and to meet with other expenses. No doubt, the complainant tried to justify her company with respondent No. 2 on premise that she was threatened that if she does not join respondent No. 2, he would kill her mother. But looking to the conduct of the complainant herself, we are not inclined to digest the submissions made by learned Advocate for the org. complainant. No doubt, the complainant tried to justify her company with respondent No. 2 on premise that she was threatened that if she does not join respondent No. 2, he would kill her mother. But looking to the conduct of the complainant herself, we are not inclined to digest the submissions made by learned Advocate for the org. complainant. Had there been any such threat adduced to complainant, then there were ample opportunities available to the complainant to seek assistance of passersby or in public transport or even the police security posted at various religious places where they visited. We could not digest the fact that for return of SIM card, complainant travelled from Dhanera and then to Deesa. It is noticed by the learned trial Court that at various places and on various occasions, the complainant had an opportunity to file complaint about threat of the respondent No. 2 and also had an opportunity to disown the accused; yet the complainant did not avail of any such opportunity. Not only that, the complainant has not informed such threat given by respondent No. 2 to anyone including her family members. Whenever and wherever the complainant gone with respondent No. 2, various officer’s at various religious places were present and also while travelling through public transport, there were number of passengers in the bus, as also at the religious place and hotels where the complainant and respondent No. 2 stayed; but she has not preferred to make any grievance/complaint about the act of respondent No. 2. Thus, looking to the conduct and further considering the fact that complainant is adult; yet she continued to join the company of respondent No. 2 and on analysis of the evidence, the learned trial Court found that complainant was a consenting party and therefore, it is observed by the learned trial Court that prosecution failed to prove all the ingredients of the offences punishable under Sections 366 and 376 of IPC. 8. On re-assessment and re-analysis of evidence we have not found any compelling reasons or ground to interfere with the findings of facts recorded by the learned trial Court. Learned Advocate Ms. Kapadia could not pinpoint any evidence even remotely suggesting that respondent No. 2 committed act of sexual intercourse/rape upon the complainant against her will and wish. 8. On re-assessment and re-analysis of evidence we have not found any compelling reasons or ground to interfere with the findings of facts recorded by the learned trial Court. Learned Advocate Ms. Kapadia could not pinpoint any evidence even remotely suggesting that respondent No. 2 committed act of sexual intercourse/rape upon the complainant against her will and wish. Under the circumstances, the learned trial Judge has rightly acquitted the respondent accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal. 9. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 ). In the instant case, the learned Advocate for the complainant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 10. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280 , Supreme Court has held as under: "The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal." 11. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal." 11. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others v. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another v. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 12. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court, no case is made out to interfere with the impugned judgment and order of acquittal. 13. In view of the above and for the reasons stated above, present appeal deserves to be dismissed and is accordingly dismissed.