Shivshankar Ranjitsinh Rajput vs Niraj Ramratan Yadav
2022 Latest Caselaw 4043 Guj

     R/CR.A/486/2020                                ORDER DATED: 07/04/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 486 of 2020
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                       SHIVSHANKAR RANJITSINH RAJPUT
                                   Versus
                           NIRAJ RAMRATAN YADAV
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Appearance:
MAYANK K TRIVEDI(7906) for the Appellant
for the Respondent No. 1
MS CM SHAH, APP for Respondent No. 2
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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 S.H.VORA)

1. Feeling aggrieved by and dissatisfied with the judgment and order dated 30.9.2019 passed by the learned 5 th Additional District and Sessions Judge, Surat in POCSO Case No.174 of 2017, whereby the respondent accused came to be acquitted for the offences punishable u/s 363, 366, 376(I)(J)(N) of the IPC and u/s 4, 5(L) and 6 of the POCSO Act, 2012, the appellant - original complainant has preferred present criminal appeal u/s 372 of the Code of Criminal Procedure, 1973 (for short "the Code").

2. Briefly stated, on 7.5.2015 in noon time, the respondent accused has abducted the daughter of the complainant from his lawful guardianship with an intention to commit rape on her and thereafter, committed sexual intercourse without the consent of his daughter and therefore, complaint is lodged at Pandesara Police Station on 9.5.2015. In pursuance of the complaint lodged by the complainant, the investigating agency collected the evidence in form of statement of witnesses and documentary

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evidence and after having found material against the respondent accused, charge-sheet came to be filed in the Special Court and it came to be registered as Criminal (POCSO) Case No.174 of 2017. The learned trial Court framed the charge at Exh.5 against the respondent accused for the aforesaid offences. The respondent accused pleaded not guilty and claimed trial.

3. In order to bring home the charge, the prosecution has examined 14 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 7 and 8 of the impugned judgment and order.

4. On conclusion of trial, the respondent accused was generally examined under the provisions of Section 313 of the Code and in the further statement, the respondent-accused denied his involvement in the crime and further stated that false case is lodged against him. After hearing both the sides and after analysis of the evidence adduced by the prosecution before the trial Court, the respondent-accused came to be acquitted from the charge of the offences framed against him.

5. We have heard learned advocate Mr. M.K. Trivedi for the appellant. According to learned advocate Mr. Trivedi, the learned trial judge was unnecessarily influenced by the questions with regard to married/unmarried children of the complainant and sequence of the child. According to his submission, number of other children in the family is wholly irrelevant aspect of the case against the respondent accused with regard to the offence under the POCSO Act and other offences under the IPC. Therefore, the reasonings given by the learned trial judge are contrary to law, facts and evidence on record. He has also submitted that there is no any scientific

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examination of the victim with regard to the age as is being done outside the country. On these broad submissions, learned advocate Mr. Trivedi for the appellant would submit that present appeal may be considered for admission and the judgment and order may be reversed.

6. We have minutely examined the oral and documentary evidence adduced by the prosecution before the trial court and we have heard the submissions of the learned advocate Mr. Trivedi appearing for the appellant at length.

7. It appears that it is the case of the prosecution that the victim's birth date is 10.1.2001 as per birth certificate Exh.38. It has come on record that the said birth certificate was registered with the competent authority only on 28.1.2016, whereas the alleged incident took place on 7.5.2015. At the same time, it appears that the wife of the complainant has deposed that the victim is her 5th child, whereas in the complaint Exh.19, it is stated by the complainant that he has two sons and two daughters and the victim is his 3 rd child. It has also come on record that the victim has studied upto 7 th standard, but despite that, the complainant has not produced school leaving certificate. It is relevant to note that as per the deposition of the mother of the victim, she has four daughters and two sons. In light of this inconsistent and contradictory evidence, more particularly with regard to number of children and sequence of minor, the learned trial judge has rightly disbelieved the case of the prosecution that at the time of incident, the victim was minor. We have also found that the birth certificate came to be registered only after the incident and that too without producing school leaving certificate.

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8. Apart from it, in her police statement recorded on 6.3.2017, the victim has stated that she has voluntarily joined the company of the respondent accused, whereas in her deposition, she comes out with a case of commission of act of rape on her by the respondent accused without her consent. It has also come on record that she travelled with the respondent accused in train and in autorickshaw and also moved with him at various places. On the contrary, it has come on record that the victim and the respondent accused were in love and the victim abandoned her guardianship of her parents of her own and there is no any medical test with regard to the age of the victim. In view of such evidence brought on record, the learned trial judge has rightly disbelieved the birth date of the victim being 10.1.2001 and observed that the victim girl on her own joined the company of the respondent accused by abandoning the guardianship of her parents, moved with the respondent accused at various public places through public transport and despite such fact, the victim did not inform anything as regards to her abduction/kidnapping to any person from public. The learned trial judge has also recorded various other inconsistency and contradiction in the prosecution evidence with regard to role of other persons, namely, Mr. Kanak, Mr. Shantial and Ms. Rajkumari. On our careful re-appreciation or entire evidence, we do not find that there is any infirmity or irregularity in the findings of fact recorded by the learned trial judge. Under the circumstances, the learned trial Judge has rightly acquitted the respondents 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. The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's

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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 the victim or the victim was as alleged.

10. 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 APP 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.

11. 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

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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."

12. 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.

13. 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 372 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

14. In view of the above and for the reasons stated above, present criminal appeal fails and same deserves to be dismissed and is according dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SHEKHAR P. BARVE