Mansingbhai Bhanabhai Vala vs State Of Gujarat
2022 Latest Caselaw 876 Guj

     R/CR.A/2255/2019                                      ORDER DATED: 28/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2255 of 2019
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                          MANSINGBHAI BHANABHAI VALA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
DHARMESH D NANAVATY(2396) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Opponent(s)/respondents(s) No. 2,4
NOTICE SERVED for the Opponent(s)/respondents(s) No. 3
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the respondents No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 28/01/2022

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 29.8.2019 passed by the learned Additional Sessions Judge, Kodinar in Sessions Case No.14 of 2018 (old Sessions Case No.22 of 2016), whereby the respondents accused came to be acquitted for the offences punishable u/s 365, 376(d), 302, 328, 34, 201 of the IPC, 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 12.11.2015, victim Savitaben wanted to go to her parental home and when she left from the village Velva, at that time, Rohit Dodia met her along with his motorcycle and the victim requested him to drop her at Nana Vada. Thereafter, Rohit went to the Bus Station, where other accused persons Jaydeep Lakhman and Boricha Sitaram were there and accused persons have made conspiracy to kidnap the victim and as per

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the conspiracy, when the victim was on the way, as per their plan and as per the instructions of original accused No.1, accused No.2 asked to come at village Devdi with him for thread of black magic and dropped her to Nana Vada. Thereafter, original accused Nos.1 and 3 also went there and committed rape on her. After committing the rape upon the victim, original accused Nos.1 and 2 caught hold of the victim and original accused No.3, who is a Veterinary doctor, had given two injections to the victim and therefore, she became unconsious and thereafter, sprinkled kerosene and set the victim ablaze. Not only this, the accused persons tried to destroy the evidence. Thereafter, the complainant lodged the complaint with regard to the incident before Kodinar Police Station, which was registered as I - C.R. No.133 of 23015 for the offences u/s 365, 376(d), 302, 328, 34, 201 of the IPC.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant documentary evidence in form of medical evidence and other relevant evidence for the purpose of proving the offence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC, Kodinar. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Una as provided under section 209 of the Code. Thereafter, on establishment of Addl. Sessions Court at Kodinar, said Sessions Case No.22 of 2016 is transferred to Addl. Sessions Court, Kodinar and new number of the Sessions Case is 14 of 2018.

4. Upon committal of the case to the Sessions Court, Kodinar, learned Sessions Judge framed charge at Exh.17 against the

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

5. In order to bring home charge, the prosecution has examined 27 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 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 respondents accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are is innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondents 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 advocate Mr. Dharmesh Nanavaty for the appellant, learned advocate Mr. Chintan Popat for respondent Nos.2 and 4 and learned APP Ms. Shah appearing for the respondent State and have minutely examined the oral as well as documentary evidence.

8. Learned advocate Mr. Nanavaty appearing for the appellant

- original complainant took us through relevant evidence, more particularly, depositions of PW 5 Mr. Devshibhai Kamaliya at Exh.45, PW 13 Mr. Nonghanbhai Gohil at Exh.79, PW 14 Mr. Kishanbhai Parmar at Exh.87, PW 17 Mr. Ashwinbhai Gohil at

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Exh.90 and PW 19 Mr. Karshanbhai Gohil at Exh.92. We have further examined the findings of the learned trial judge and after scrutiny of evidence at his end, in para 65 of the impugned judgment, the learned trial judge has recorded following findings:-

"(65) Thus, upon complete analysis of the evidences in its entirety, it reveals that there is no eye witness to the incident. The complainant, the husband of the deceased and all the witnesses have deposed on the basis of hearsay. The 'last seen together'- witnesses have turned hostile and they do not absolutely corroborate the case of prosecution. On the basis of the evidence of witnesses, the facts that surface on record are such that the victim was of unsound mind at the relevant point of time and she persistently left for her parental home from the place of her in-laws, but she did not reach there. Therefore, a missing-complaint was lodged. But suspicion was not raised against anyone therein. Thereafter, when the dead body was found, it was declared an accidental death. At that time also, suspicion was not raised against anyone. Thereafter, at the instance of police, it came to the knowledge that more than one person are involved in the offense and the present accused, taking disadvantage of the mental condition of the deceased, gained her confidence, abducted her, kidnapped her, took her to Devli na Khara, where they raped her by sodomizing. Thereafter, out of the fear that she might tell someone about the incident, they set her ablaze. But, these facts came to the knowledge of the complainant and the witnesses when the police informed them. It does not appear that any witness has seen the accused persons while they were committing the offense. Some of the witness state that accused Rohit Kesar had admitted committing of offense at the relevant point of time. But, such facts are not proved. Therefore, the offense is not proved merely by stating that I heard Rohit Kesar admitting the offense. The prosecution is required to prove this fact on the basis of strong and cogent evidences. But, the prosecution does not produce such proper and strong evidence which corroborates such facts. As per the deposition of investigating officer and the postmortem

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report, it does not reveal occurrence of a rape or recovery of any article on the dead body. The F.I.R. and the Serological report do not reveal that it was the semen of the accused, neither they reveal occurrence of rape. As per the medical opinion, presence of petrol, diesel or kerosene was not found. Therefore, if all the evidences are taken into consideration together, it may not be exaggerated to state that no link is found which connects the evidences with each other."

We have independently reassessed and reanalyzed the entire evidence adduced before the learned trial Court and more particularly, depositions of the aforesaid witnesses. The prosecution case rests on last seen theory and also on the depositions of the aforesaid witnesses. It is a matter of fact that the deceased was last seen on 12.11.2015, whereas her dead body was found only on 17.11.2015. The relevant witnesses with regard to last seen theory have saw the accused persons at Velva Bus Stand and beyond this, there is nothing on record that any witness has seen the deceased and the respondents accused together nearby the scene of offence. The recovery of the motorbike on which the deceased was riding as pillion rider does not stand established through cogent and reliable evidence that on 12.11.2015, the accused were riding the same motorbike. Thus, identification of motorbike is also not established apart from the accused persons last seen together at Velva Bus Stand. Apart from it, there is an allegation with regard to act of rape, but no any scientific evidence suggests occurrence of rape or recovery of any semen of the accused. It is the case of the prosecution that the deceased was set ablaze, but as per the medical opinion, presence of neither petrol nor diesel nor kerosene was found. In nutshell, the prosecution case rests on only last seen together theory and beyond this, nothing is found by the learned trial judge connecting the present

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respondents accused with the alleged offence of murder and rape. 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. 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.

10. 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

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plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

11. 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.

12. 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.

13. 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