State Of Gujarat vs Umangbhai Kishorbhai Soni
2021 Latest Caselaw 14447 Guj

     R/CR.A/446/2020                          JUDGMENT DATED: 20/09/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 446 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

      Whether Reporters of Local Papers may be allowed
 1                                                                   NO
      to see the judgment ?

 2 To be referred to the Reporter or not ?                          YES

      Whether their Lordships wish to see the fair copy of
 3                                                                   NO
      the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution of            NO
   India or any order made thereunder ?

=======================================
                     STATE OF GUJARAT
                            Versus
               UMANGBHAI KISHORBHAI SONI
=======================================
Appearance:
MR HARDIK SONI, APP (2) for the Appellant(s) No. 1
=======================================

 CORAM:HONOURABLE MR. JUSTICE PARESH UPADHYAY
       and
       HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 20/09/2021

                 ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI)

1. The State has filed this acquittal appeal challenging the judgment and order passed by the Principal Sessions Judge, Nadiad dated 05.10.2019 in Sessions Case No. 100 of 2014. The

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

trial was held against the accused for having committed the offence punishable under Section 376 of the Indian Penal Code, 1860 (herein after referred to as "the IPC").

2. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the appellant - State.

3. The learned Additional Public Prosecutor has taken this Court extensively through the judgment and order of the learned Sessions Judge, so also the relevant evidence, which are on record pursuant to the order of this Court dated 13.03.2020.

4. The learned Additional Public Prosecutor has submitted that the Sessions Judge has committed a grave error in not believing the case of the prosecution that on the basis of false promise to marry the victim, the accused got intimated with the victim, against her will and consent. He, drawing attention of the Court to the relevant evidence on record, vehemently submitted that though the prosecution witnesses have supported the case of the prosecution and though the case was proved by oral as well as documentary evidence, the conclusion arrived at by the Sessions Judge is erroneous one and the same needs to be interfered with by this Court.

4.1 In support of his case, the learned Additional Public Prosecutor has relied upon a decision of the Apex Court in Anurag Soni v. State of Chhattisgarh, AIR 2019 SC 1857.

4.2 It is submitted that this appeal be entertained.

5. Regard being had to the arguments advanced and having

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

gone through the impugned judgment and order passed by the Sessions Court so also, considering the relevant material on record, it appears indisputably that the victim and the accused had got engaged and by virtue of that tie, he frequented the place of victim in the presence of her parents also, where he used to take her to the upstairs with a view to have some private conversations with the victim and then, allegedly, used to get intimate with victim against her wish and will. The learned Sessions Judge has disbelieved such story of the prosecution on the ground that the prosecution has failed to prove the same beyond reasonable doubt and there is no evidence on record that on false promise and premise, by cheating her, the accused committed rape on her without her wish and will. On the contrary, it is the case of the victim herself that the accused used to frequent her place in the presence of her parents, took her to the upstairs and keep physical relations with her. On appreciation of the evidence on record, the Sessions Judge has come to the conclusion that the accused and the victim had got engaged, however, the said engagement could not be materialized into marriage and accordingly, it cannot be said that on false promise to marry her, the accused had committed rape of victim. We find that, on the basis of the evidence on record and considering the totality, the Sessions Court cannot be said to have committed any error in that regard.

5.1 So far as the decision relied upon by the learned Additional Public Prosecutor in Anurag Soni (supra) is concerned, in paragraph 12, it is observed as under:

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the Accused who gave the promise to the prosecutrix to marry, did not have any intention to marry

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

and the prosecutrix gave the consent for sexual intercourse on such an assurance by the Accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined Under Section 375 of the Indian Penal Code and can be convicted for the offence Under Section 376 of the Indian Penal Code."

5.2 Thus, if it is established and proved that from the inception, the accused, who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per section 90 of the IPC and, in such a case, such a consent would not excuse the offender. In the instant case, it not proved by the prosecution that the accused had no intention to marry the victim. On the contrary, indisputably, the accused and the victim had got engaged, however, the said engagement could not culminate into the marriage and therefore, it cannot be said that the accused had no intention to marry the victim and on false promise to marry, kept physical relations with her and thereafter, retracted. Thus, this decision would not be of any help to the appellant.

5.3 At this juncture, it would be worthwhile to refer to a recent decision of the Apex Court in Pramod Suryabhan Pawar v. The State of Maharashtra and Another, rendered in Criminal Appeal No. 1156 of 2019 dated 21.08.2019, wherein, the Apex Court has observed as under:

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

5.4 It is further observed in paragraph 20 of the aforesaid decision as under:

"20. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 of the IPC has occurred."

5.5 As said earlier, when it is not proved that the accused in the instant case, on the false promise to marry the victim, had engaged in sexual act with her, which is sine qua non in such cases, in our considered opinion, the trial Court has committed no error in recording acquittal of the accused for the offence punishable under section 376 IPC.

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

5.6 At this juncture, a beneficial reference may be made to a decision of the Apex Court in Lalit Kumar Sharma and Others v. Superintendent and Remembrancer of Legal Affairs, Govt. of W.B., AIR 1989 SC 2134, wherein, the Court has held that:

"It is now well settled that the power of an appellate Court to review evidence in appeals against acquittal is an extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so. If a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate Court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record."

5.7 It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.

5.8 Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

5.9 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

5.10 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

R/CR.A/446/2020 JUDGMENT DATED: 20/09/2021

6. In the result, we find that, the impugned judgment and order recorded by the Sessions Court, does not call for any interference by this Court. This appeal, therefore, needs to be dismissed.

6.1 While dismissing this appeal, it is clarified that, the findings and observations of this Court in this judgment are on the basis of the submissions made before this Court in the appeal filed by the State after seeking leave of this Court under section 378(1) (3) of the Criminal Procedure Code, 1973 and in the event, any appeal is filed by the victim, the same may be examined on its own merits.

7. This appeal is dismissed with above observations and clarifications. R&P be returned forthwith.

[ Paresh Upadhyay, J. ]

[ A. C. Joshi, J. ] hiren