Gujarat High Court
State Of Gujarat vs Hitesh @ Manjro Bhimbhai Patel on 5 July, 2021
Bench: Sonia Gokani, Rajendra M. Sareen
R/CR.MA/1476/2021 ORDER DATED: 05/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1476 of 2021
In
R/CRIMINAL APPEAL NO. 115 of 2021
With
R/CRIMINAL APPEAL NO. 115 of 2021
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STATE OF GUJARAT
Versus
HITESH @ MANJRO BHIMBHAI PATEL
==========================================================
Appearance:
MS CM SHAH APP (2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 05/07/2021
COMMON ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 1476 of 2021:-
1. The present application has been preferred by the
applicant-original complainant - State of Gujarat for leave to
prefer an appeal challenging the impugned judgment and order
of acquittal passed by the learned Additional District and
Sessions Judge, Surat in Sessions Case No.189 of 2015, by
which the learned Judge convicted the main accused
Chetankumar Champakbhai Patel - original accused No.1 for the
offence under section 363 of Indian Penal Code for 7 years with
fine of Rs.1000/- and in default, further imprisonment for a
period of 6 months. He also has been convicted for the offence
R/CR.MA/1476/2021 ORDER DATED: 05/07/2021
under sections 365, 366 and 376 of Indian Penal Code for 7
years, 10 years, and 10 years, respectively. He also has been
convicted for the offence under section 506(2) of Indian Penal
Code for 2 years.
2. Whereas, those who abetted, namely, the present
respondent Nos.1 to 3 - original accused Nos.2 to 4 are
concerned, the learned Judge convicted them for the offence
under section 363 read with section 114 of Indian Penal Code for
2 years and they have been acquitted so far as the offence under
sections 365, 366, 376 and 506(2) of Indian Penal Code, is
concerned.
3. According to the prosecution on 22.01.2004 with the help
of all the respondents herein, the main accused had
administered threat to the minor, who was below 16 years of age,
to kidnap and kill her father and brother and with false promise
of marriage she was taken from the lawful possession of her
father with an intention to abuse her physically. The minor, who
was school going kid, was taken to the place of Pravinbhai
Vasava, wherein the main accused - Chetankumar
Champakbhai Patel - original accused No.1 repeatedly
committed rape. Therefore, FIR being CR No.I-10 of 2004 has
been registered with Rander Police Station. On adducing the
evidence, oral as well as documentary in Sessions Case No.189
of 2015, the learned Additional Sessions Judge delivered the
judgement on 09.03.2020, as aforesaid.
4. Ms.C.M. Shah, learned APP has submitted that the
conviction imposed in case of the respondents herein - original
accused Nos.2 to 4 is insufficient, as their role in abduction of
R/CR.MA/1476/2021 ORDER DATED: 05/07/2021
minor victim and thereafter at every stage is quite apparent from
the evidence. She was aged 15 years at the time of her abduction
and her date of birth has been clearly proved being 03.02.1988
and hence, her consent will have no role at all in the alleged
criminal conspiracy of abduction and then rap. The role of the
respondent Nos.1 to 3 - original accused Nos.2 to 4 have been
specifically spelt out by the witnesses.
5. Ms.Shah, learned APP has further submitted that the
Sessions Court failed to appreciate that the victim - PW No.17 in
her evidence at Ex.54 has specifically and categorically stated
that threat of death of her father and brother was the reason
why the victim was forced to go with the main accused
Chetankumar Champakbhai Patel - original accused No.1. She
was taken to Doctor Park, where one Tata Sumo Car was lying,
where the respondent Nos.1 to 3 herein - original accused Nos.2
to 4 were sitting. She was taken to village Baldava where she
was sexually abused and the present respondents are said to
have abetted the offence. She has identified the respondents
herein. She has also given history before the Doctor.
6. On thus considering the legal submissions and materials,
it can be noticed prima facie that the respondents have been
convicted only for the limited purpose of offence under section
363 read with section 114 of Indian Penal Code for abetment,
however, for the abetment in relation to other offences it
emerges prima facie from the oral as well as documentary and as
argued extensively by the learned APP, they have been acquitted
despite there being material to consider their involvement while
appreciating the evidence. We are of the opinion that leave to
prefer appeal is required to be granted on the basis of this prima
R/CR.MA/1476/2021 ORDER DATED: 05/07/2021
facie opinion.
7. Under the circumstances, Present application is allowed.
Leave to appeal, as prayed for, is granted.
ORDER IN R/CRIMINAL APPEAL NO. 115 of 2021:-
ADMIT.
Bailable warrant be issued against the Respondent Nos. 1
to 3 - original accused Nos.2 to 4 in the sum of Rs.5,000/-
each.
Both the sides be provided copy of the Paper Book.
To be heard with Criminal Appeal No.643 of 2020.
(SONIA GOKANI, J)
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
