State Of Gujarat vs Subhash @ Popat Rameshbhai Padaya
2022 Latest Caselaw 2115 Guj

     R/CR.MA/4270/2022                           ORDER DATED: 23/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 4270 of 2022
                                  In
                   R/CRIMINAL APPEAL NO. 453 of 2022
                                 With
                   R/CRIMINAL APPEAL NO. 453 of 2022
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                          STATE OF GUJARAT
                                Versus
                  SUBHASH @ POPAT RAMESHBHAI PADAYA
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Appearance:
MS CHETNA M. SHAH, APP for the Applicant - Appellant
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 23/02/2022

                             ORAL ORDER

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

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 05.10.2021 passed by the learned 4 th Additional Sessions Judge, Gondal in Sessions Case No.40 of 2018 for the offences under sections 307, 364 and 366 of the Indian Penal Code, 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 22.06.2018 in evening, when the complainant - Vibhutiben Sureshbhai Rathod was washing the clothes out side her house, the

R/CR.MA/4270/2022 ORDER DATED: 23/02/2022

accused - Subhash @ Popat Rameshbhai Padaya, who happens to be the cousin of the complainant ('Foi no Dikro'), came there and told her that to come and marry with him and will live together. Therefore, the complainant has gone with him. The accused has taken her at the Farm of Ravjibhai at village Nagadka, where he took her near the Well and told her to marry with him. When she refused for marriage, the accused has pushed her and the complainant fell down in the Well. Since the complainant can swim, she survived and she shouted for help. After repeated attempt, some one has come for her help and thereafter, that person has called her parents and others. Her parents came immediately there and rescued the complainant. Thereafter, all the persons went to lodge a complaint at the police station. The complainant lodged the complaint with regard to the incident before the Gondal Taluka Police Station, Gondal, which was registered as I - C.R. No.92 of 2018 for the offences under sections 307, 364 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 various Panchnamas 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 JMFC, Gondal. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Gondal as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Gondal, learned Sessions Judge framed charge at Exh.6 against

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the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried

5. In order to bring home charge, the prosecution has examined 8 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 accused so as to obtain his 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 of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing.

8.1 Looking to the complaint itself, the facts narrated in the complaint cannot be believable at all. It cannot be believable that ; (i) when someone, though relative, has told to come and marry with him and any girl is ready to go immediately with that person, (ii) if the girl is not ready to go and marry with him, then why she went with him immediately from her house,

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(iii) anyone cannot force her to go with anybody and that too when she was washing the clothes out side her house, (iv) she has not tried to escape from the custody, if she was forced, (v) there is no reason to go to the Well at the farm of Ravjibhai,

(vi) when anyone wants to marry with the girl of his choice and the girl has shown readiness and has come with him, why and how such boy can push the girl into the Well. These are the facts which are not the corroborative to each other. Therefore, the complaint itself seems to be concocted one.

8.2 Further, the complainant herself has stated in her deposition before the trial Court that the accused has not forced her and she has gone with him on her own. She has also deposed that they both were in love relationship. They regularly talk on mobile phones. It is relevant to note here that, she has categorically stated in her deposition that on the day of incident, she has called the accused, she left her house and went on her own with the bag and they met near the cemetery first. She has also categorically deposed in her deposition that she has went with the accused on her own wish and the accused did not kidnapped her. On the contrary, she has deposed that the accused has told her that they cannot marry as she was minor. Therefore, the trial Court has rightly considered the ingredients of Sections 364 and 366 of the Indian Penal Code and acquitted the accused.

8.3 Further, looking to the ingredients of Section 307 of the Indian Penal Code, the same are not satisfied looking to the facts and circumstances of the case. The deposition of the complainant herself speaks lot about the incident. She has clearly deposed before the trial Court in her deposition that the

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accused has not used any force with her before the incident. Therefore, the ingredients of Section 307 are not satisfied for the commission of offence. Therefore also, the trial Court has rightly come to the conclusion and acquitted the accused by giving benefit of doubt.

8.4 Further, looking to the deposition of PW-6 - Ravjibhai Jinabhai Khit at Exh.21, he has deposed before the trial Court that, he went to his farm at about 7:00 / 7:30 pm. He has also deposed that the girl has gone into the Well through the stairs. He has further deposed that there was hardly two feet water in the Well. Whereas, the complaint as well as the panchnama indicates that there was 30 feet water in the Well. Further, the timing of the incident also defers. The complainant herself has stated in the complaint that the alleged incident has happened at about 9:00 pm. Ultimately, the said witness did not support the case of the complainant.

8.5 Further, there is material contradiction in the statement of PW-3 - Chandrikaben Sureshbhai Rathod at Exh.13. She has deposed in her deposition that the alleged incident has happened at the Well situated on the way behind her house. Whereas the complainant has stated in her complaint that the alleged incident has happened at the Well of Ravjibhai's farm. Therefore, this is material contradiction about the place of incident. The trial Court has rightly considered all the evidence on record and acquitted the accused from the charges levelled against him.

8.6 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

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the view/finding of the learned trial Judge leading to the acquittal.

9. It is pertinent to note that the prosecution is required to prove the intention or knowledge of the accused persons, however, it is necessary that the prosecution is required to prove the intention or knowledge of the accused persons and it is not necessary that injury capable of causing death should have been inflicted by the accused persons. What is material to attract offense under section 307 of the IPC is the intention or knowledge with which all the acts are done irrespective of its results. In order to attract the offence under section 307 of IPC, we have minutely examined oral evidence and all the prosecution witnesses, we found that nothing is disclosed with regard to intention or knowledge so as to constitute that there is anything on the part of the respondents - accused persons to commit act or attempt to commit murder. In the present case the prosecution has failed to discharge its duty to prove its case beyond reasonable doubt and the Trial Court has rightly acquitted the accused persons by giving benefit of doubt as the case is not proved beyond reasonable doubt.

10. In view of above and on our own analysis and re- appreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of acquittal recorded by the trial Court. We have also perused the judgment and findings given by the trial Court and find that the same are in accordance with law.

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

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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.

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

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been the trial Court, it might have taken a different view.

14. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon'ble Apex Court has observed the scope of section 378 of the Code in Para : 20 to 22 as under :-

"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.

22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark."

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15. 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.

16. In view of the above and for the reasons stated above, present Criminal Misc. Application No.4270 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.453 of 2022 also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

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