Belim Shahinabanu Ladbhai vs State Of Gujarat

Gujarat High Court

Belim Shahinabanu Ladbhai vs State Of Gujarat on 28 April, 2025

                                                                                                              NEUTRAL CITATION




                             R/SCR.A/6041/2016                                  ORDER DATED: 28/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6041 of 2016

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                                                              xxxxx
                                                              Versus
                                                     STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR MIG MANSURI(444) for the Applicant(s) No. 1
                       MR MANAN MEHTA, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                            Date : 28/04/2025

                                                             ORAL ORDER

Since petitioner is the victim of alleged sexual abuse, her identity has not been disclosed in this order and she has been referred to as the the victim in the entire order.

1. By of present petition under Article 227 of the Constitution of India, the victim has prayed for following relief :-

"A. Admit and allow this petition, B. Quash and set aside the judgment and order of the Id. Sessions Judge, Surendrangar in Criminal Revision Application No. 4/2016 which is at Annex. C to this petition and that of the Id. Chief Judicial Magistrate, Surendranagar in Criminal Case No. 224/15 which is at Annex B to this petition and Order for restoration and investigation of the complaint of the petitioner which is at Annex.A to this petition to be investigated by CID, Crime and/or by any independent investigating agency and the accused may be tried & punished in accordance with the provisions of law to meet with the ends of justice, C. Grant the interim/ad interim relief's in terms of Para Page 1 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025 NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined 7 B pending the admission, hearing and final disposal of this petition by way of staying the operation, implementation and execution of the judgements and orders of the courts below which are at Annex B & C respectively to this petition and further ordering for restoration and investigation of the complaint of the petitioner at Annex. A to this petition by CID Crime and/or by any other independent investigating agency to meet with the ends of justice, D. Grant any other and further relief or reliefs to which this Hon'ble Court deems fit in the interest of justice."

2. Facts of the case are as under :-

2.1. That victim was married to a person of her caste at Limbdi nine years before the incident in question and there is a daughter named Saniyabanu out of the said wed lock but because of failure of both kidneys, her husband died and she is living as widower with her said daughter who is aged about 10 years and brother, bhabhi at her parental house at Surendranagar. The victim was serving in the shop of the org, accused no. I Ritesh upon salary of Rs. 4,000/- p.m. Under the pretext of love affair, the said accused entered into the conspiracy with the org. accused no. 2, 3 & 4 to commit the alleged offences of gang rape ete; upon inducement, temptation, false promises etc. of marriage of the victim with the org, accused no. I Ritesh. The said org, accused no. 1 firstly got cash & the golden ornaments from the victim and obtained the loan of Rs. 1,38,000/- + Rs. 31,000/-by way of depositing the said golden ornaments with the different finance companies. After some time, with the aid and abetment of each other, the accused enticed away the victim upon inducement, temptation and false Page 2 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025 NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined promises of marriage etc. from Surendranagar with the cash of Rs. 50,000/- on 22.7.14 at about 12.30 p.m. and was firstly taken to Limbdi, then to Ahmedabad, Pune, Sangali, again to Pune, Ahmedabad, Ambaji, Abu, again to Ambaji, Visnagar Rajpur, then again to Ahmedabad, Botad, Surat, Limbdi, Vadhvan and ultimately to Surendranagar City Police Station on 8.11.2016 at about 7.00 p.m. in view of the complaints of victim's mother. During this entire period of time, at different places of hotels, guest house, Soni Samajni vadi and residence of relatives and friends of the accused, the victim was raped/gang raped with the threats of killing her parents, brother etc. & under a fake marriage ceremony of the victim with the org, accused no. 1 Ritesh by way of conversion of her religion from Muslim to Hindu without following due & proper procedure of law and was made pregnant and thereafter aborted the said pregnancy under deadly threats of the accused particularly accused no. I as per the detail written complaint dtd. 24.4.15 of the victim to the respondent no. 2. As no action was taken by the respondent no. 2 upon the said complaint of the victim, the victim filed a private complaint in this respect in the court of ld.

JMFC, Surendranagar on 4.5.2015 which was registered as Criminal Case No. 224 of 2015 and the Id. Trial court after accepting the report of the police on the basis of pre planned ready made statements of the accused and their allies, the said complaint of the victim was rejected on 1.1.2016. Being aggrieved and dissatisfied by the said order of rejection of her complaint, the victim preferred Criminal Revision Application No.4 of 2016 in the court of id. Sessions Judge, Surendranagar. Learned Sessions Court also dismissed Revision Application on 15.6.2016.

NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined 2.2. Hence, present petition.

3. It is submitted by learned advocate for the victim that impugned judgment passed by the learned Courts below is against settled principle of law and therefore, requires to be quashed and set aside. Learned advocate for the victim submits that learned Courts below have committed error in rejecting the complaint of the victim. It is submitted that learned Courts below failed to consider documentary evidence on record. It is submitted that it is serious case where accused have committed gang rape on the victim and though all the ingredients of section 376 of IPC are satisfied in the complaint, learned Courts below did not believe the same and thereby committed serious error. It is submitted that both the Courts below have committed error in accepting report submitted by the police. It is submitted that police has not recorded statement of the complainant and witness of the complainant in very serious case where allegations of gang rape is made. It is submitted that report is prepared after recording statement of accused and therefore, conduct of Investigating Officer is also required to be seen at the time of deciding the complaint. It is submitted that learned Trial Court failed to consider the fact that though entire incident is narrated by the complainant in the complaint and in the written submission, it is not considered. It is submitted that accused nos.1 and 3 to cover their offence of gang rape, dramatized the marriage of victim with accused no.1 by way conversion of religion of victim without any necessary permission of Collector of following any procedure of law. It is also submitted that victim was threaten by accused no.1 to undergo abortion of Page 4 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025 NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined pregnancy due to gang rape committed upon her by all the accused.

3.1. Making above submissions, it is submitted to allow the petition.

4. On the other hand, learned APP has objected the petition. It is submitted that no error is committed by the learned Courts below in passing impugned orders. It is submitted that after considering documentary evidence, the learned Courts below have passed the impugned orders, which is not required to be interfered with. Therefore, it is submitted to dismiss the petition.

5. Having heard learned advocates for the parties, let notice findings at para 10 and 11 of learned Sessions Court which reads as under :-

"10. Learned trial Magistrate has considered all the arguments canvassed by both the parties and the documentary evidence available on record. Thus, learned Magistrate has considered each and every point advanced by the parties and no error or ambiguity is found in the judgment and ordet passed by the learned trial Magistrate, either on factual aspects or in law point. Learned Magistrate has at the time of deciding complaints of the complainant, taken into consideration all the documents relevant to the matter and has dealt with in details in a very exhaustive manner. The appellant has failed to prove which part of the impugned order of the learned Magistrate is against evidence available on record. On going through the record, it is found that the appellant-complainant had changed her religion from muslim to hindu after after converting her religion, she had got her marriage registered with present respondent No.1. Not only this, but after solennization of marriage, complainant and respondent No. Page 5 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025 NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined 1 had resided together as husband and wife. It is further found that during the said period, a complaint of missing was registered by the mother of the present appellant- complainant and on coming to know about this, the complainant had approached Police Officer and recorded her statement in which she had stated that she had voluntarily left her parental home as per her wish and volition and at that point of time had not disclosed any incident of gang rape committed upon her: on the contrary she had stated that she had voluntarily entered into relationship with respondent Not and she had got her marriage registered However, thereafter some disputes cropped up between the complainant and the respondent No.1 and, therefore, she had lodged a complaint after lapse of period of one year of the incident. It is not explained by the complainant as to why she had kept mum for that period of one year if such a gruesome incident of gang rape is committed upon her. The said conduct behavior and attitude creates doubt and suspicion about registration of complaint by the complainant. I have also gone through the record and proceedings of the trial Court and it is found that the documents relevant to the matter have been considered by the learned Magistrate of details in a very exhaustive manner. Therefore, considering the totality of factual aspects of the matter, there is no need to interfere with the order passed by the learned Magistrate. Thus, learned trial Magistrate has passed just, proper and reasonable order after considering the documents available on record and. hence, present revision application being devoid of merits. same deserves to be dismissed. Therefore, I am of the opinion that there is no reason to interfere with the judgment and order passed by the learned trial Magistrate.

11 I have gone through the reasons and findings given by learned trial Judge in the impugned judgment and it is my opinion that the impugned judgment of trial Court is legal, valid and proper and there is no reason to make any interference with it. While taking decision, learned trial Magistrate has not ignored any of the evidence produced by the parties and, therefore, the aforesaid finding of learned trial Magistrate does not require any interference.

NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined As discussed above, the judgment and order passed by the learned Magistrate being not erroneous or bad in law, there needs no interference by this Court. I have gone through the findings of learned trial Magistrate and it is my opinion that the aforesaid finding of learned trial Magistrate is not required to be interfered with. In view of the discussion, the present revision application filed by the original complainant is found to be devoid of merits and therefore, it is in the fitness of things that the present revision application is dismissed."

6. I have heard the learned Advocates for the parties and also perused the concurrent findings of fact arrived at by the learned Courts below. In the present case victim married with accused no.1 after conversion of her religion from Muslim to Hindu and they started living as husband and wife. After marriage, victim visited various place with accused no.1 at Ahmedabad, Pune, Ambaji etc. without raising any alarm. It is to be noted that victim was with accused no.1 for almost four months. During said period, she did not raise any grievance that she was subjected to rape. Needless to state that victim is major lady, during four months time period, she passed through many public places. She did not raise hue and cry that she has been raped by proposed accused. In her statement recorded on 08.11.2014, the victim has categorically admitted that she married with accused no.1 and stayed with accused for four months. It is also to be noted that complaint before the learned Trial Court and police was filed after delay of more than one year. Seemingly complaint is end result of fall out of marriage.

7. Since petition is preferred under Article 227 of the Constitution of India, I may also refer to the judgment of Hon'ble Page 7 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025 NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined Apex Court in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein, the Hon'ble Apex Court has discussed the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India. Relevant discussion in para 15 and 16 reads thus:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a Page 8 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025 NEUTRAL CITATION R/SCR.A/6041/2016 ORDER DATED: 28/04/2025 undefined number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

8. In view of above, it is not permissible for this Court to interdict with the concurrent findings arrived by Courts below under discretionary jurisdiction.

9. For the foregoing reasons, the present petition is found merit-less. There is no reason to interfere with impugned order under limited jurisdiction under Article 227 of the Constitution of India. The present petition is dismissed.

(J. C. DOSHI,J) SATISH Page 9 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Thu May 01 2025 Downloaded on : Thu May 01 23:36:47 IST 2025