Gujarat High Court
State Of Gujarat vs Dashrathbhai @ Vikrambhai ... on 5 January, 2022
Bench: Sandeep N. Bhatt
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20081 of 2021
In R/CRIMINAL APPEAL NO. 1676 of 2021
With
R/CRIMINAL APPEAL NO. 1676 of 2021
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STATE OF GUJARAT
Versus
DASHRATHBHAI @ VIKRAMBHAI POPATBHAI NAI
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Appearance:
MS CHETNA SHAH, APP for the Applicant(s) No. 1
NOTICE UNSERVED(8) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Being aggrieved and dissatisfied with the judgment and
order dated 06.02.2021 passed by the learned Additional
Sessions Judge, Deesa, in Special (POCSO) Case No. 15 of
2017, whereby the respondent - accused came to be acquitted
for the offense punishable under sections 363, 366, 365 376
and 506(2) of the Indian Penal Code (hereinafter referred as
'IPC' for short) and sections 4 and 6 of the POCSO Act. 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).
2. The brief facts germane to the appeal are as follows:-
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
2.1 The complainant who is victim of aged 17 years residing
at Runi, Taluka Dhanera had filed a complaint on 14.02.2017
that she was staying in the address mentioned in the
complaint and was doing household work. She has further
submitted in her complaint that they are 4 brothers and sisters
and that she is the eldest child. Her date of birth is 30.05.1999
and she has done her schooling till standard 8. She has further
stated in her complaint that since there was some repairing
work going on in her house she was sleeping in the residence
of her maternal aunt. She stated that on 07.02.2017 she was
sleeping along with her cousin sister in the porch of the house
of her maternal aunt and at that time at about 11:30 pm one
person namely Vikrambhai Popatbhai Nai who is residing in her
neighborhood came to that place and dragged her from her cot
and also threatened her of dire consequence with death threat
if she screamed or informed anybody. Thereafter, he took her
to the road where a white colored car was parked. Then after
she was forcibly made to sit in the car and was taken to
Palanpur and Vadnagar and in the morning they came to
Naroda at Ahmedabad by bus from Vadnagar and he had also
arranged for one room on rent at Naroda, Ahmedabad. She has
further submitted in her complaint that the accused person
repeatedly committed rape on her against her will. Thenafter
she was brought to Dhanera from Naroda when her father and
uncle came searching for her and found her. Accordingly, after
reaching Dhanera she filed the complaint against the accused
Vikrambhai Popatbhai Nai for abduction and rape. The said
complaint is registered with Dhanera Police Station being C.R.-I
6 of 2017 under the provisions of sections 363, 366, 376,
506(2) of IPC and section 4 of the POCSO Act. Thereafter, the
Investigating Officer has investigated the complaint and after
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
completion of the investigation he has filed chargesheet
against the accused - present respondent under sections 376,
363, 366, 506(2) of IPC and sections 4 and 6 of the POCSO Act
and accordingly the Sessions Case came to be registered being
Special (POCSO) Case No. 15 of 2017 before the 2 nd Additional
Sessions Judge, Deesa.
2.2 The Sessions Court framed the charge against the
respondent - accused for the aforesaid offence at Exh. 8. The
respondent - accused pleaded "not guilty" by giving his
statement at Exh. 9 and has claimed to proceed with the trial.
In order to bring home charge the prosecution has examined
18 witnesses and also produced documentary evidence which
is mentioned as under:-
Sr. Particulars Exh. No.
No.
CrPC
victim was abducted
5 Seizure Panchnama of the vehicle used in 25
crime
committed rape
of the victim
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
of the accused
certificate of the victim
certificate of the accused
17 Yadi written for receipt of complaint u/sec. 61
164 from the victim
of the general register of the school
to 1771 of the general register of the
school
Standard 1
school attended by the victim
school attended by the victim
Standard 4
Standard 5
Standard 6
Standard 7
Standard 8
mudamal
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
Thereafter the closing pursis was filed at Exh. 89.
2.3 Upon conclusion of trial the respondents - accused was
examined under the provisions of section 313 of the Criminal
Procedure Code and in the further statement the respondent -
accused denied his involvement in the alleged crime and
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 learned Trial Court the respondent -
accused was acquitted from the charges of offence under
sections 363, 366, 365 376 and 506(2) of IPC and sections 4
and 6 of the POCSO Act. The Court has found that it is clearly
revealed that the prosecution has failed to establish the age of
the victim - complainant and has also failed to establish the
date of birth of the victim as 30.05.1999. On the contrary the
trial Court has found that it was proved by way of
preponderance of probability that the date of birth of the
victim is 30.05.1998. The trial Court has also found from the
conduct of the victim that she went with the accused and
stayed at Naroda for the period from 08.02.2017 to 14.02.2017
and it is also considered by the trial Court that the parents of
the victim had not filed any complaint for the period from the
date of offence i.e. 07.02.2017 till 14.02.2017 also creates
suspicion about the genuineness of the complaint and
therefore accordingly the trial Court has acquitted the accused
from the charges leveled against him.
3. We have minutely examined the oral as well as
documentary evidence adduced by the prosecution before the
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
trial Court and we have also heard the submissions made by
Ms. C. M. Shah, learned APP appearing for the State. On re-
appreciation of the evidence from our end we have noticed
that there were some vital discrepancies in the documents
with regard to the date of birth of the victim. We also find that
the conduct of the victim of running away with the accused
and staying with the accused at Naroda without any protest or
any reaction is also very strange and not acceptable in the eye
of law.
4. Before the evidence is scrutinized it is necessary that the
prosecution is required to prove the age of the victim beyond
reasonable doubt, more particularly, when the offence is
registered under section 4 and 6 of the POCSO Act. However,
the prosecution has grossly failed in establishing the date of
birth of victim as 30.05.1999 which is otherwise proved by
preponderance of probability as 30.05.1998. The documents
which are produced at Exh. 65 is the register of the school
which is indicating a different birth date of the victim and in
the document which is produced at Exh. 71 the date is
mentioned as 30.05.1999 but on extensively scrutinizing the
document and also in view of the deposition of the witness who
is the principal of the school, whose deposition is recorded at
Exh. 64, has admitted in his cross-examination that when the
entry number 1908 from the original register is shown to him it
is true that handwriting in the column of the name, column
number, sub-caste, birth place are one and the same and is
also written from the same pen however, where the column of
date of birth is shown to him from the same entry it transpires
that the same is written in different handwriting and also by
different pen. Though he has denied any correction being
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
made in the column of date of birth. The trial Court has
thoroughly examined this aspect by reading with the
deposition given by the victim at Exh. 14 where the trial Court
has found that the conduct of the victim is not inspiring any
confidence about the offence narrated by her. We have also
perused the deposition given by the victim at Exh. 14 whereby
she has admitted in her cross-examination that she had
consumed milk during her stay with the accused at Naroda.
5. We have also perused the material evidence submitted
by the APP and we find that the story which is narrated by the
victim that while she was sleeping with her cousin at her
maternal aunt's house and the accused pulled her from her cot
and dragged her for about 20 - 25 feet and still she did not
receive any injury on any part of her body also creates
suspicion. Thereafter she was forcibly made to sit in the car
with accused and was taken to Vadnagar. Thereafter she was
taken to the bus stand at Vadnagar where they sat at the bus
stand waiting for the bus for about 20 minutes and thereafter
she was taken to the residence of one Hareshbhai Karshanbhai
Prajapati at Vadnagar and stayed there till morning and then
came back to Vadnagar bus stand from where she was taken
to Naroda in Ahmedabad in bus and thereafter till her father
and uncle came searching for her she stayed with the accused
at Naroda and the accused also gave food to her till her stay
with the accused at Naroda. The prosecution has also
examined Dr. Shailendrasingh Chandrabhansingh Parmar at
Exh. 43 and he has specifically submitted that no injury was
found on any body part of the victim and he has also stated
that the victim has not clearly told that the accused person
committed rape with her and therefore also the medical
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
evidence otherwise is not supporting the case of the
prosecution in any manner. This clearly creates the doubt
about the veracity of the complaint and also clearly indicates
that the victim had some relationship with the accused and
she had willingly left the house with the accused.
6. It has also come to our notice from the deposition of the
father of the victim who has deposed at Exh. 21 as well as
maternal uncle who has deposed at Exh. 86 and as per the
case of the prosecution it was the father of the victim and the
maternal uncle of the victim who had searched and found the
victim at Naroda however, from the deposition of both the
witnesses a lot of material contradiction is found like about the
location of the victim and accused. It further transpires from
the record that the Investigating Officer has clearly admitted
that he has recorded statement of the flat owner on
15.02.2017 when he went to the flat where the victim and
accused stayed together for drawing panchnama. In his
statement the flat owner Vishal Manubhai Gondalia has clearly
revealed that the victim and accused had stayed together in
his flat at Naroda as husband and wife. These are the aspects
whereby we are in agreement with the view taken by the
learned trial Court that no satisfactory evidence is produced to
show the date of birth of the victim as 30.05.1999, on the
contrary, from the record produced during the trial clearly
reveals and can easily be presumed by applying
preponderance of probability that the date of birth of the
victim is 30.05.1998. Therefore on the date of the alleged
offence it can be easily inferred that the victim is major and
aged more than 18 years. Secondly, the conduct of the victim
that she has stayed without making any hue and cry on every
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available opportunity with her and she has stayed
uninterruptedly between 07.02.2017 till 14.02.2017 with the
accused and more particularly they have given their identity to
the flat owner as husband and wife creates serious doubt
about the story narrated by the victim, in any case the
prosecution has grossly failed in proving the charges as per the
charge framed in the above mentioned matter under the
provision of sections 363, 366, 365 376 and 506(2) of the IPC
and sections 4 and 6 of the POCSO Act and in any case when
the doubt about the veracity of any document is created then
the benefit should be given in the favour of the accused.
Hence the trial Court has rightly acquitted the accused from
the charges leveled against him.
7. It is a cardinal principal 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.
8. 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
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
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."
9. 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
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
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.
10. In the very recent judgment reported in 2021 (15) SCALE
Pg. 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 as under:-
"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
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
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.
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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."
11. 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.
12. In view of the above and for the reasons stated above,
present application for leave to appeal being Criminal Misc.
Application No. 20081 of 2021 fails and same deserves to be
dismissed and is accordingly dismissed. In view of dismissal of
R/CR.MA/20081/2021 ORDER DATED: 05/01/2022
the application for leave to appeal, Criminal Appeal No. 1676 of
2021 also deserves to be dismissed and is accordingly
dismissed.
(S.H.VORA, J)
(SANDEEP N. BHATT,J)
SHRIJIT PILLAI
