Madhuben D/O Pratapji Valaji ... vs Thakore Prakashji Kapurji
2022 Latest Caselaw 1323 Guj

     R/CR.A/1840/2019                                JUDGMENT DATED: 07/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1840 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA                                Sd/-

and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT                        Sd/-

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

2     To be referred to the Reporter or not ?                             NO

3     Whether their Lordships wish to see the fair copy                   NO
      of the judgment ?

4     Whether this case involves a substantial question                   NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                   MADHUBEN D/O PRATAPJI VALAJI THAKORE
                                  Versus
                     THAKORE PRAKASHJI KAPURJI & ANR.
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Appearance:
MS KIRAN D PANDEY, ADVOCATE for the Appellant
(Through High Court Legal Services Committee)
RULE SERVED for the Respondent No. 1 - Original Accused
MS CHETNA M. SHAH, APP for the Respondent No. 2 - State
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    CORAM:HONOURABLE MR. JUSTICE S.H.VORA
          and
          HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 07/02/2022

                     ORAL JUDGMENT

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

R/CR.A/1840/2019 JUDGMENT DATED: 07/02/2022

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 30.10.2018 passed by the learned Additional Sessions Judge, Patan in Special POCSO Case No.2 of 2015 for the offences under Sections 363, 366 and 376 of the Indian Penal Code and Sections 3(A) and 4 of the Protection of Children from Sexual Offences Act, 2012, the appellant - original complainant has preferred this appeal as provided under Section 372 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 No.1 - original accused.

2. At the time of incident, the daughter of the complainant was studying in 9th standard in Tanna Girls High-school, Harij. On 13.10.2014, she left her house for Diwali household chores at one Mahendrabhai Revashankar Thaker's house. When she did not return to her house, her mother inquired about her at Mahendrabhai's house, where it was replied that she has already left from there at about 2:00 pm for her house. At that time, one Nilkanthkumar Dalpatram Pandya met them and stated that he has shown her daughter with one Prakashji Kapurji Thakor on his motor-cycle at about 2:30 pm on State Bank Road, Harij. Since she left from there and did not return to her house, her mother inquired for her here and there. Thereafter, on next day, i.e. 14.10.2014, the complainant lodged the complaint with regard to the incident before the Harij Police Station, which was registered as I - C.R. No.100 of 2014 for the offences under Sections 363, 366 and 376 of the Indian Penal Code. After investigation, the police authority has added Section 3(A) and 4 of the POCSO Act.

3. In pursuance of the complaint lodged by the complainant,

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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 No.1 accused, charge-sheet came to be filed in the Court of learned Additional Sessions Judge, Patan.

4. After filing the charge-sheet, learned trial Sessions Judge framed charge at Exh.7 against the respondent No.1 accused for the aforesaid offence. The respondent No.1 accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 17 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 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 No.1 accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent No.1 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 No.1 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

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before this Court. This Court has admitted the appeal vide order dated 22.07.2021. Though served, the accused has chosen not to remain present and contest the appeal before this Court.

8. Heard Ms. Kiran Pandey, learned advocate for the appellant. She has submitted that the age of the victim is 13 years only and she was threatened by the accused when he was on bail and therefore, it can be believed that the victim turned hostile and not supported the case of the prosecution. She fairly admits that no such complaint is filed about such threats given by the accused when he was on bail. She also submitted that the doctor has supported the case of the prosecution and as victim is minor, the present appeal requires consideration.

9. We have heard learned advocate Ms. Kiran D. Pandey for the appellant and learned APP Ms. Shah appearing for the respondent No.2 State. We have perused the record and proceedings received from the trial Court.

10.1 After considering the entire evidence - documentary as well as oral, the trial Court has recorded that, considering the deposition of the victim at Exh.44, she has deposed that such so-called incident does not happen at all. She has further deposed that, due to some interaction with her mother, she had left her house on her own and come to the house of one friend of her mother viz., Sangitaben at Village - Chandarda, where she stayed for five days there. When Sangitaben and other family members were going to Kadi for shopping, her mother (present appellant - complainant) met with two police personnel near Kadi Bus Station. They took her

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with them at Kadi Police Station first and then at Harij Police Station. She has clearly deposed that except this, nothing has happened with her. She has also clearly deposed that she has no relations with any boy. She has clearly deposed in her deposition that, she was never having any relation with any boy. She has never done physical intercourse with any boy. No one has kidnapped her and did intercourse forcefully. She has also deposed that her mother has given this complaint on hearsay evidence. She has again stated that the so-called offence did not happen. She does not know the accused and she could not identify him also. Since the victim herself does not support the prosecution case, she was declared hostile.

10.2 Further, looking to the evidence of victim's sister - Sangitaben Maheshji Thakor at Exh.46 and brother-in-law - Maheshji Babuji Thakor at Exh.47, they did not support the prosecution case and therefore, they were also declared hostile.

10.3 Looking to the deposition of Dr. Kirangiri Shivgiri at Exh.66, he has deposed that, the victim has stated before him that she has entered into sexual intercourse with Prakash. However, looking to the other medical evidence regarding the age of the victim, nothing has concretely come out on record that the victim was minor at the time of incident. Therefore, the provisions of the POCSO Act do not attract in this case and the Trial Court has rightly acquitted the accused from the provisions of POCSO Act.

10.4 Further, looking to the deposition of the appellant - complainant at Exh.15, where she has deposed that she alone

R/CR.A/1840/2019 JUDGMENT DATED: 07/02/2022

went to the police station for lodging the complaint. She further deposed that she does not know the accused. She also deposed that she has told all the details to the police and the police has lodged the complaint and taken her thumb. At the same time, the victim herself has clearly deposed in her deposition that she has some interaction with her mother and therefore, she has left the house and gone to the house of her mother's friend - Sangitaben. She has clearly denied about the love-affairs with the accused and also denied about the sexual intercourse with the accused and thereby the victim herself does not support the case of the prosecution. Since the victim herself does not support the prosecution case, there would not be any evidential value of the evidence of the complainant. Since the other witnesses also do not support the case of the prosecution vis-a-vis the deposition of the victim herself, the offence of kidnapping and rape does not prove.

10.5 Dr. Kirangiri Shivgiri in his deposition at Exh.66 stated that there is no injury on her body. Further, looking to the documentary evidence at Exh.80 - FSL report, no sperm is found from the clothes. Thus, medical evidence also fails to prove the case of the prosecution.

10.6 Further, from the Panchnama at Exh.24 and the deposition of the PW-23 - Mukundkumar Keshavlal Mehta, it is not proved that the accused has kidnapped the victim.

10.7 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.

R/CR.A/1840/2019 JUDGMENT DATED: 07/02/2022

Since the victim herself has denied about the so-called incident, merely the medical evidence and the evidence of the prosecution witness do not prove the offence against the accused. The evidence of the doctors and the police are the corroborative evidence and not the conclusive evidence. When the victim does not support the case of the prosecution and denied clearly in her deposition about the incident and merely on the ground that victim is minor, the prosecution can not be succeeded by proving case beyond reasonable doubt and therefore, the trial Court has rightly acquitted the accused.

10.8 Under the circumstances, the learned trial Judge has rightly acquitted the respondent No.1 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.

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 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:

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"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 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, the captioned Criminal Appeal No.1840 of 2019 deserves to be dismissed and is accordingly dismissed.

R/CR.A/1840/2019 JUDGMENT DATED: 07/02/2022

16. Record and proceedings be sent back to the concerned trial Court.

Sd/-

(S.H.VORA, J)

Sd/-

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