Dakshaben Gopalbhai Padhiyar vs State Of Gujarat
2022 Latest Caselaw 8721 Guj

     R/CR.A/1553/2022                                ORDER DATED: 03/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1553 of 2022

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                         DAKSHABEN GOPALBHAI PADHIYAR
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR NADEEM B MANSURI(11332) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                 Date : 03/10/2022

                        ORAL ORDER

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

1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 24.1.2022 passed by the learned 4th Additional Sessions Judge, Anand in Sessions Case No.61 of 2018, whereby the respondent accused came to be acquitted for the offences punishable u/s 354(A)(1), 354(C), 376, 323, 503, 506(2) & u/s 66(E) of the I.T. Act 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 that on 2.4.2018, when the appellant - original complainant was answering the call of nature, the respondent accused captured the obscene photos of the

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appellant - original complainant, used to blackmail her to public the said obscene photos of the appellant and thereby committed rape against the will of the appellant at different places. The respondent accused also caused injuries to the appellant on her left cheek and hand. Thereafter, the complainant lodged the complaint with regard to the incident before Aanklav Police Station, which was registered as I - C.R. No.25 of 2018 for the aforesaid offences.

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 respondent accused, charge-sheet came to be filed before the learned Sessions Court at Anand, which was numbered as Sessions Case No.61 of 2018.

4. Thereafter, learned Sessions Judge framed charge at Exh.6 against 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 14 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

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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 and further, the victim and the respondent accused were in love affairs. 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 advocate Mr. Mansuri appearing for the appellant - original complainant and have minutely examined the oral as well as documentary evidence placed on record by him

8. Learned advocate appearing for the appellant - original complainant would submit that though the panch witness and husband of the appellant victim turned hostile, the learned trial judge committed an error in disbelieving the depositions of the appellant victim aged 24 years recorded below Exh.34. Learned advocate for the appellant took us to the deposition of the victim and medical evidence. On our careful reassessment and re- appreciation of evidence, we have found that no photographs/ videos are placed on record so as to indicate that there was any obscene photos/videos being taken by the respondent accused and used to blackmail the appellant victim. We have minutely gone through the deposition of the appellant victim, where we have found that the victim herself built relationship with the respondent accused, accepted mobile phones from the

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respondent accused, visited field of one Mr. Rameshbhai and established relationship with the respondent accused on three occasions. She further admitted in her cross-examination that both of them have talk to run away from the house and further, she has never objected or tried to prevent the respondent accused to commit an act of rape. No any clothes were torn. Having regard to the conduct of the applicant right from the establishment of the relationship, it appears that there was consensual relationship between them and thus, the learned trial judge has rightly appreciated the evidence in this regard in para 17 of the impugned judgment. 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:

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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."

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.

R/CR.A/1553/2022 ORDER DATED: 03/10/2022

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)

(RAJENDRA M. SAREEN,J) SHEKHAR P. BARVE