State Of Gujarat vs Hafiz Allarakh @ Dadabhai Sandhi
2023 Latest Caselaw 1327 Guj

      R/CR.A/526/1996                                JUDGMENT DATED: 08/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 526 of 1996


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI                                 Sd/-

and

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                              Sd/-
==========================================================
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 ?

==========================================================
                                STATE OF GUJARAT
                                      Versus
                        HAFIZ ALLARAKH @ DADABHAI SANDHI
==========================================================
Appearance:
MR CHINTAN DAVE APP for the Appellant(s) No. 1
MR EKANT G AHUJA(5323) for the Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                 Date : 08/02/2023

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

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1. The appellant - State of Gujarat has preferred the

present appeal under Section 378 of Criminal Procedure

Code, 1973 against the judgment and order of acquittal dated

17.4.1996 passed by the learned Additional Sessions Judge,

Bhavnagar (hereinafter be referred to as "the trial Court") in

Sessions Case No. 198 of 1995, whereby the respondent-

original accused was acquitted from the charges levelled

against him under Sections 376, 506(2) etc. of the Indian

Penal Code and Section 135 of the Bombay Police Act.

2. It is contended by the appellant that the respondent -

accused was charged and tried by the trial Court in the said

Sessions Case for the offences punishable under Sections 376,

506(2) etc. of the Indian Penal Code and Section 135 of the

Bombay Police Act, wherein at the end of trial, by the

impugned judgment and order dated 17.4.1996, the trial

Court was pleased to acquit the respondent - accused. It is

the contention of the appellant that the judgment and order of

acquittal is against the law and evidence on the record of the

case and the trial Court has not properly appreciated the

evidence available on record. It is the further contention of

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the appellant that the trial Court has committed an error in

not considering the evidence of the witnesses, who have

supported the case of the prosecution and they have narrated

the incident in detail about the role played by the accused-

person. It is also the contention of the appellant that the

prosecution has proved its case beyond reasonable doubt and,

therefore, the respondent - accused ought to have been

convicted for the offences with which he was charged.

According to the appellant, the entire evidence has not been

properly appreciated by the trial Court below and, therefore,

the acquittal order is illegal. It is prayed by the appellant to

set aside the impugned judgment and order of acquittal.

3. The facts in brief giving rise to the filing of present

appeal are as under:

3.1 As per the complaint dated 13.8.1995 of the prosecutrix,

on 12.8.1995 at about 8 a.m. her sister, brother, grandfather,

bhabhi etc. were working at vadi near Gudajalivali. Near the

said place one river and well are situated and she went to the

well for taking water. At that time, the accused came there

and asked for water and she gave water to him. However, the

accused did not drink the water and touched her

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inappropriately, therefore, the prosecturix started screaming.

At that time, the accused had shown her knife and said that if

she shouts, then he will kill her and thereafter he forcefully

raped her by putting knife on her neck. Thereafter, the

accused ran away from the place of offence. Thereafter, as the

victim started shouting, her sister-in-law reached there and

her sister-in-law had also seen the accused running away from

the spot. Thereafter, her sister Shobhanaben, brother Laxman

and others, who were working at the field came there

running. She narrated the incident to them. As per her say, as

the accused dragged her, there was bruise on the bottom of

her right leg. Thereafter, she along with her father and

brother came to the police station and gave the complaint.

3.2 The said complaint came to be registered at Khatvada

Police Station by P.S.I. as I-C.R. No.69 of 1995 for the charges

punishable under Sections 376, 506(2) etc. of the Indian Penal

Code and Section 135 of the Bombay Police Act. .

4. Pursuant to the aforesaid FIR, the police started

investigation. After completion of investigation, as the

sufficient evidence was found, the police has filed the charge-

sheet against the accused persons before the Judicial

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Magistrate, First Class. As the offence was triable by the

Court of Sessions, the Judicial Magistrate, First Class has

committed the case under Section 209 of the Criminal

Procedure Code to the Court of Sessions at Bhavnagar,

wherein it has been registered as Sessions Case No.198 of

1995.

5. The charge came to be framed by the trial Court on

26.2.1996 vide Exhibit 2 for the aforesaid offences against the

accused. On being explained it to him, the accused person has

denied having committed any offence. The accused person

pleaded not guilty to the charge and pleaded for trial and

hence, the case was tried by the trial Court.

6. After hearing both sides and considering the evidence on

records, the trial Court by impugned judgment and order has

acquitted the accused person from the charges levelled

against him.

7. Being aggrieved by and dissatisfied with the aforesaid

judgment and order of acquittal the appellant - State of

Gujarat has preferred this Appeal.

8. We have heard Mr. Chintan Dave, learned Additional

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Public Prosecutor for the appellant - State of Gujarat and Mr.

Ekant Ahuja, learned advocate for the respondent at length.

9. Mr. Dave, learned Additional Public Prosecutor for the

appellant - State of Gujarat has submitted that though there is

ample evidence produced by the prosecution to prove the guilt

of the accused, the trial court has passed impugned judgment

and order of acquittal. Learned APP further submitted that

though the case of prosecution is supported by the evidence of

the prosecutrix and her sister-in-law as well as by the

evidence of doctor, the trial court has committed an error by

disbelieving all these ocular and medical evidences in support

of the prosecution, while passing the impugned judgment and

order of acquittal. It is also contended by the learned APP that

the presence of the accused is established beyond reasonable

doubt at the time of commission of offence and therefore, the

impugned judgment and order of acquittal is erroneous,

illegal and the same deserves to be quashed and set aside.

Learned APP further contended that while appreciating the

evidence, trial court has not properly appreciated the

evidence led by the prosecution in its true and proper spirit

and the findings recorded by the trial court is against the

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settled principles of law and therefore, the impugned

judgment and order of acquittal deserves to be quashed and

set aside..

10. Per contra, Mr. Ekant Ahuja, learned advocate for the

respondent has strongly objected present appeal by

contending that the prosecution has failed to establish the

case beyond reasonable doubt. There is lot of improvements

and contradictions proved at the time of recording evidence

through the police witness. Therefore, trial court has rightly

passed the impugned judgment and order of acquittal. It is

also contended that there is serious discrepancy with regard

to registering of offence and the manner in which the

investigation was carried out by the investigating officer. It is

further contended that the prosecution has failed to prove and

establish the guilt on the part of the accused. As the offence of

rape is not proved and established by the prosecution beyond

reasonable doubt therefore, the impugned judgment and

order of acquittal deserved to be confirmed the present

appeal deserves to be dismissed.

11. We have perused the judgment and order of acquittal

rendered by the trial Court and carefully considered the rival

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contentions, evidence and material placed on record.

12. At this stage, it is relevant to take into account the

observations in the decision of the Hon'ble Supreme Court in

the case of Chandrappa vs State of Karnataka reported in

2007 (4) SCC 415, which read as under:-

"The following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the

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presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

13. Regarding scope of power of the appellate court in an

appeal against the order of acquittal, it has been observed by

the Apex Court in the case of Motiram Pandu Joshi and

others Vs. State of Maharashtra, reported in (2018) 9

SCC 429 especially in paragraph nos.22 to 24 as under:-

"22. It is fairly well-settled that in an appeal against the order of acquittal, the appellate court would be slow to disturb the findings of the trial court which had the opportunity of seeing and hearing the witnesses. In an appeal against the order of acquittal, there is no embargo for reappreciating the evidence and to take a different view; but there must be strong circumstances to reverse the order of acquittal. In the appeal against the order of acquittal, the paramount consideration of the appellate court should be to avoid miscarriage of justice.

23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka, [10 (2007) 4 SCC 415] this Court summarised the principle as under: (SCC p. 432, para-42).

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review,

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reappreciate and re-consider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

24. In Kallu v. State of M.P. [(2006) 10 SCC 313], this Court held as under: (SCC pp.317-18, para-8)

"8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one

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significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court."

14. While appreciating the evidence and exercising the

power under Section 378 of the Criminal Procedure Code, the

duty cast upon the High Court regarding the scope and ambit

of interference in acquittal appeal by the Hon'ble Supreme

Court. It is worthwhile to refer to the decision of the Hon'ble

Supreme Court in the case of Nagabhushan Vs. State of

Karnataka reported in (2021) 5 SCC 222. It is also

worthwhile to refer to the decision of the Hon'ble Supreme

Court in the case of Rajesh Prasad Vs. State of Bihar and

another reported in (2022) 3 SCC 471. The Hon'ble

Supreme Court in the said decision has held and observed in

paragraphs No.21 to 30 as under:-

"21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal

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the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under: (SCC OnLine PC)

"16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

"...But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."

It was stated that the appellate court has full powers to review and to reverse the acquittal.

22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this

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Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715 (Sanwat Singh case, AIR pp 719-20 para 9):

"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."

23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."

24. In Shivaji Sahabrao Bobade vs. State of

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Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows: (SCC p.799, para 6)

"6......In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows: (SCC p.229, para 7)

"7.....While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions."

The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.

26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court: (SCC pp. 116-17, para 16)

"16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court

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against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:

(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.

(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."

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27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed vis--vis the powers of an appellate court while dealing with a judgment of acquittal, as under: (SCC p.229, para

7))

"7.... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions."

28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.

30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence."

15. It is well settled by catena of decisions that the Appellate

Court has full power to review, re-appreciate and reconsider

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the evidence upon which the order of acquittal is founded.

However, Appellate Court must bear in mind that in case of

acquittal there is double presumption in favour of the

accused. Firstly, the presumption of innocence is available to

him under the fundamental principle of criminal jurisprudence

that every person shall be presumed to be innocent unless he

is proved guilty by a competent Court of law. Secondly, the

accused having secured his acquittal, the presumption of his

innocence is further reinforced, reaffirmed and strengthened

by the trial Court.

16. Further, if two reasonable conclusions are possible on

the basis of the evidence on record, the Appellate Court

should not disturb the finding of acquittal recorded by the

trial Court. Further, while exercising the powers in appeal

against the order of acquittal, the Court of appeal would not

ordinarily interfere with the order of acquittal unless the

approach of the lower Court is vitiated by some manifest

illegality and the conclusion arrived at would not be arrived at

by any reasonable person and, therefore, the decision is to be

characterized as perverse. Merely because two views are

possible, the Court of appeal would not take the view which

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would upset the judgment delivered by the Court below.

However, the Appellate Court has a power to review the

evidence if it is of the view that the conclusion arrived at by

the Court below is perverse and the Court has committed a

manifest error of law and ignored the material evidence on

record. A duty is cast upon the Appellate Court, in such

circumstances, to re-appreciate the evidence to arrive to a

just decision on the basis of material placed on record to find

out whether the accused is connected with the commission of

the crime with which he is charged.

17. Thus, the law on the issue can be summarised to the

effect that in exceptional cases where there are compelling

circumstances, and the judgment under appeal is found to be

perverse, the appellate court can interfere with the order of

acquittal. The appellate court should bear in mind the

presumption of innocence of the accused and further that the

trial court's acquittal bolsters the presumption of his

innocence. Interference in a routine manner where the other

view is possible should be avoided, unless there are good

reasons for interference.

18. In the present case, the medical evidence is contrary to

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the evidence of the prosecutrix which is established from the

record. As per the expert evidence, the so called incident of

rape, if we believe as it is as per the case of the prosecution,

then the timing of that is not matched with the incident and

therefore, there is a serious discrepancy in the evidence of the

prosecutrix and the scientific examination by the doctor, who

has examined prosecutrix. Therefore, the judgment and order

passed by the trial court is in consonance with the facts of the

present case and there is no infirmity in the judgment and

order of the trial court. Further, there is delay in registering

the FIR and also delay in sending copy of the FIR to the

concerned Magistrate within stipulated time and there is no

explanation worth the name given by the prosecution and

therefore, the trial court has rightly observed this aspect

while determining the issue. Further, there is serious

discrepancy with regard to the blood group collected from the

accused and the prosecutrix and the sample of semen, which

is not matched with each other and therefore, the same

cannot be as per the scientific and the medical evidence. The

group of the blood and the semen are same and that cannot

be differ from each other. Therefore, trial court has rightly

observed that there are all likelihood that there is

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manipulation or change in the sample and therefore, the trial

court has rightly observed this aspect in the judgment, while

considering the evidence in nutshell and while recording the

impugned judgment and order of acquittal. Therefore, We are

of the opinion that there is no discrepancy at all.

19. It is also relevant to note herein that the evidence of

sister-in-law of the prosecutrix, who is eye-witness of the

incident, is not matched with the case of the prosecution and

on the contrary it is not supported the case of the prosecution

and the same creates serious doubt and therefore, the case of

the prosecution is not proved against the accused person

beyond reasonable doubt. Hence, trial court has not

committed any error while passing the impugned judgment

and order of acquittal.

20. It is also relevant to note herein that the incident of rape

was alleged to be committed by the accused person within the

vicinity of 500 meters where all the family of the prosecutrix

are working in the agricultural field, however, no one has

heard the screaming or shout raised by the prosecturix and

only sister-in-law, who has heard the scream and shout raised

by the prosecutrix, reached at the place, but her evidence

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before the Court on oath is contrary to her police statement.

Even there is serious discrepancy found in the case of the

prosecutrix and the evidence collected by the I.O. with regard

to the nature of the medical evidence and the scientific

evidence. It is also relevant to note herein that there is delay

in sending the blood samples and therefore, the trial court has

rightly discussed the evidence of the I.Os. in detail in the

impugned judgment and order of acquittal. In paragraph Nos.

16 and 17 of the judgment and order, the trial court has

recorded findings with regard to the evidence collected by the

I.O. during the course of investigation and the investigation

carried by the I.O. which creates serious doubt in the mind of

learned trial court and therefore, We are of the opinion that

there was no infirmities or illegality in the findings recorded

by the trial court. Learned trial court has rightly disbelieved

the version of the prosecutrix with regard to the force applied

by the accused by pointing a knife at the time of commission

of offence. At one point of time, the prosecutrix states on oath

before the Court that because of force applied by the accused

she is unable to shout or raise any scream but at the same

time, within 4 to 5 minutes, the sister in law of the prosecutrix

reached to the place by hearing the shout and scream of the

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prosecutrix. So the story put-forward by the prosecution

creates serious doubt and therefore, the trial court has rightly

passed impugned judgment and order of acquittal. Further,

the trial court has also found the collection of semen of the

accused doubtful, as on the same day the accused was

produced in the court and thereafter, he was taken to the

hospital. It is highly unnatural for the officer to go to the

court and then to the hospital in time, as the distance between

the court and the hospital is almost 90 k.ms. Considering the

all these aspects, We are of the opinion that order passed by

learned trial court is not illegal, erroneous and hence, present

appeal deserves to be dismissed.

21. On perusal of the impugned judgment and order, it

clearly transpires that the trial Court has not committed any

error of fact and law in appreciating the evidence on record

and in acquitting the accused person from the charges

levelled against him. Even on re-appreciation of the evidence,

it clearly transpires that the prosecution has miserably failed

to prove the charge levelled against the accused person

beyond reasonable doubt. Therefore, the impugned judgment

and order of the trial Court is sustainable and the present

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appeal is liable to be dismissed.

22. In view of the evidence on record, it is clearly found that

the trial Court has minutely examined the evidence and has

properly appreciated the evidence on record and also not

committed any error of fact and law in acquitting the accused

for the charges levelled against them.

23. In view of the above, the present appeal fails and stands

dismissed accordingly. The judgment and order of acquittal

dated 17.4.1996 passed by the learned Additional Sessions

Judge, Bhavnagar in Sessions Case No. 198 of 1995 is hereby

confirmed. Bail bond stands cancelled. Record and

proceedings, if lying here, be sent back to the concerned Trial

Court forthwith.

Sd/-

(VIPUL M. PANCHOLI, J)

Sd/-

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI