State Of Gujarat vs Jaydip S/O Arvindji Thakor
2022 Latest Caselaw 4031 Guj

     R/CR.MA/6600/2022                            ORDER DATED: 07/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 6600 of 2022
                                  In
                   R/CRIMINAL APPEAL NO. 694 of 2022
                                 With
                   R/CRIMINAL APPEAL NO. 694 of 2022
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                             STATE OF GUJARAT
                                    Versus
                         JAYDIP S/O ARVINDJI THAKOR
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Appearance:
MS CHETNA M. SHAH, APP for the Applicant / Appellant - State
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 07/04/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 23.12.2021 passed by the learned Additional Sessions Judge and Special Judge (POCSO), Mehsana in Sessions Case No.37 of 2018 for the offences under Sections 363, 366 and 376 of the Indian Penal Code and Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012, the applicant - State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short) inter alia challenging the judgment and order of acquittal in favour of the respondent accused.

2. The facts as per prosecution case are that, on 30.03.2018 at about 3:30 p.m., the victim has told his father that she will go to the bank for withdrawal of money. Since the victim has not returned back to the home till evening, the complainant - father of the victim

R/CR.MA/6600/2022 ORDER DATED: 07/04/2022

has inquired in the bank and at other places, however the victim was not found. Therefore, he has told about this incident to his nephew Manish. They both - complainant - father of the victim and Manish went to the market for searching the victim. At that time, by hearsay, they came to know that one Thakor Jaydip Arvindji of their village has kidnapped the victim and said Thakor Jaydip was also not found at his home. Therefore, the complainant lodged a complaint with regard to the incident before the Ladol Police Station, which was registered as I - C.R. No.28 of 2018 for the offences under Sections 363 and 366 of the Indian Penal Code.

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 Panchnama(s) 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 Special Judge, (POCSO) and Additional Sessions Judge, Mehsana.

4. After filing the charge-sheet, learned trial Sessions Judge framed charge at Exh.7 against the respondent accused for the aforesaid offence. The statement of the respondent accused has been recorded, where he pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 18 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para : 4 & 5 of the impugned judgment and order.

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

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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 from the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. Against which, the complainant has preferred this appeal before this Court along with an application for seeking leave to appeal.

8. We have heard learned advocate learned APP Ms. Shah appearing for the applicant/ appellant - State. We have perused the papers submitted by learned APP at the bar.

9.1 From the record, it transpires that there was a love affair between the victim and the respondent - accused. They known to each other since more than three years. The same is supported by the statement of the victim herself.

9.2 It is a matter of record that, the complaint is based on hearsay. No one has shown the victim and the respondent accused together. Therefore, the initiation process of filing the complaint is itself baseless. If the daughter - victim in the present case, leaves her parental home on her own and any boy - respondent accused in the present case, is not available at his home from the entire village, then how he can be held responsible for kidnapping the girl. How the investigating agency has investigated such complaint without any proper prima facie evidence against the respondent accused ?

       R/CR.MA/6600/2022                           ORDER DATED: 07/04/2022




9.3     The story of the prosecution - complainant cannot be

believable at all. The incident had happened in a remote village - Ladol of Taluka Vijapur. The victim was in 10 th standard at that time. In such a small village, there might not be an independent bank account of the minor daughter. The story of the prosecution is that the victim has told his father that she will go to the bank for withdrawal of money. It has not come on record that the father has given a cheque of his bank account for withdrawal of money to the victim or the minor victim has her own bank account and she wanted to withdraw the money from it. Now-a-days also, such type of awareness - holding separate bank account of minor children can be seen least in the city area also. Therefore, the foundation of the complaint itself is not strong and believable. Be that as it may.

9.4 It is an undisputed fact that, the victim was not kidnapped and abducted by the respondent - accused. He has not even forced the victim to marry. It is an admitted fact that the victim, on her own, has left her parental home on the day of incident. Therefore, there is no question of attracting Sections 363 and 366 of the Indian Penal Code, for which the trial Court has rightly observed and discussed in the impugned judgment.

9.5 Looking to the deposition of the victim herself - PW-15 at Exh.55, the victim has stated that she has gone with the respondent accused on her own. They both have initially went to Vijapur. Thereafter to Ahmedabad and then to Mumbai by train on 31.03.2018, where they have enjoyed the city and stayed for one night in the hotel. Thereafter, they returned from Mumbai and came to Bharuch and stayed in one guest house at Bharuch. Thereafter, on 02.04.2018, they both went to Vadodara. Thereafter they went to Surat in train, where the accused has withdrawn the money.

R/CR.MA/6600/2022 ORDER DATED: 07/04/2022

Thereafter they returned to Ahmedabad and from Ahmedabad, the accused has taken the victim to his uncle - 'Mama' at Himatnagar. Thus, considering the sequence of the story, it cannot be believable that the accused has forcefully taken the victim with him.

9.6 Further, the victim has never tried to escape from the custody of the respondent - accused, though there were many chances with her. It shows that they were happily residing together for those days. Therefore also, the trial Court has rightly acquitted the respondent - accused.

9.7 To continue with the deposition of the victim, she has categorically stated in her In Camera deposition that she told her father that she will go to the bank for withdrawal of money. Now, looking to the basis of the complaint vis-a-vis the deposition of the victim, there are contradictions. The initiation of the complaint is thus baseless. The deposition of the victim does not support the complaint/prosecution case.

9.8 Looking to the medical evidence as well as deposition of the medical officer, it transpires that there were no external injuries on the body of the victim. The victim is capable/fit for sexual intercourse. Further, it transpires that there was no force for sexual intercourse against the wish of the victim. Considering the biology report at Exh.73 and serology report at Exh.74, no evidence can be found from them against the accused. Therefore, such scientific evidence would not be helpful to the prosecution.

9.9 It is a well settled position of law that when the accused is in police custody, the statement given by him during the said period before the Doctor, cannot be treated as acceptance/evidence against

R/CR.MA/6600/2022 ORDER DATED: 07/04/2022

the accused as provided under Section 27 of the Indian Evidence Act, 1872 and the same is not acceptable at all.

9.10 Looking to the evidence of Investigating Officer vis-a-vis the evidence of the victim herself and the sequence of the places where the victim and the accused have visited, it is completely contradictory and not sufficient to book the accused in the commission of the offence.

9.11 In the present case, the victim is projected to be a minor, however, the investigation has failed to prove the age of the victim. The Investigating Office has not verified the record from the Government office regarding the actual date of birth of the victim.

9.12 The prosecution has failed to prove its case since the prosecution has not collected the call details of the victim and accused. The prosecution has not taken any statement of the family members of the accuse and/or any neighbour. The prosecution has not inspected the house of the accused. The prosecution has not taken statements of all the persons whom the victim and accused had met. Thus, looking to the conduct of the prosecution, it tilts the balance in favour of the accused, which the trial Court has rightly considered.

9.13 Looking to the deposition of the victim, depositions of the Investigating Officer and the Medical Officer as well as the medical evidence, the offence under Section 376 of the Indian Penal Code, 1860 and under the POCSO Act, 2012 cannot be believable. The trial Court has rightly considered all the evidence on record and acquitted the respondent - accused.

       R/CR.MA/6600/2022                           ORDER DATED: 07/04/2022




9.14             Therefore, the trial Court has rightly acquitted the

respondent - accused from the charges under the Indian Penal Code as well as under the POCSO Act, by giving benefit of doubt.

9.15 Thus, on re-appreciation of the documentary evidence, oral evidence and medical evidence, we find that the trial Court has rightly come to the conclusion and has rightly acquitted the accused from the charges levelled against him.

9.16 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/findings of the learned trial Judge leading to the acquittal.

10. The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Courts' acquittal bolsters the presumption of his innocence. Keeping in mind the evidence adduced by the trial Court and also settled principle as to scope of appeal against the acquittal order there are no good reasons to interfere with the findings of the trial Court as there is no iota of evidence to infer that the respondent - accused has committed an act of rape against the wish and will of they victim or the victim was as alleged.

11. 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 appellant has not been able to point out to us as to

R/CR.MA/6600/2022 ORDER DATED: 07/04/2022

how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

12. 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."

13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. 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.

14. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal

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Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

15. In view of the above and for the reasons stated above, present Criminal Misc. Application No. 6600 of 2022 for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal No.694 of 2022 also deserves to be dismissed and is accordingly dismissed.

S.H.VORA, J)

(SANDEEP N. BHATT,J) M.H. DAVE