Bhumika Krishnamurari Dadhich vs State Of Gujarat
2023 Latest Caselaw 5449 Guj

     R/CR.A/1519/2022                       ORDER DATED: 12/07/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL APPEAL NO. 1519 of 2022

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            BHUMIKA KRISHNAMURARI DADHICH
                          Versus
                   STATE OF GUJARAT
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Appearance:
MR. RAJENDRA D JADHAV(10026) for the Appellant(s) No. 1
MR HARDIK A DAVE(3764) for the Opponent(s)/Respondent(s)
No. 2
MS CM SHAH, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
       and
       HONOURABLE MRS. JUSTICE M. K. THAKKER

                        Date : 12/07/2023

                  ORAL ORDER

(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)

1. This Appeal under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') is filed by the first informant - victim challenging the judgment and order of acquittal passed by the 15 th Additional Sessions Judge & Special Fast Track Judge for Rape Cases, Surat dated 31.07.202 in Sessions Case No.20 of 2020.

2. Respondent no.2 - accused came to be prosecuted pursuant to FIR filed by the appellant - victim, who is aged about 22 years at the time of the incident for the alleged offence punishable under Sections 376, 376 (2) (N), 504 and

R/CR.A/1519/2022 ORDER DATED: 12/07/2023

506(2) of the Indian Penal Code. Investigation was carried out pursuant to the FIR and ultimately charge-sheet came to be filed against respondent no.2 - accused. On conclusion of trial, respondent - accused came to be acquitted, and therefore, the aforesaid Appeal is preferred.

3. During the course of hearing, while going through the judgment and order of acquittal, we felt need of Record and Proceedings, which was then called for vide order dated 01.05.2023. Record and Proceedings is received by this Court.

4. When it was asked to Ms. C.M. Shah, learned Additional Public Prosecutor, whether State has preferred Appeal against judgment and order of acquittal, she submitted that State has not filed Appeal as proposal is not received from DGP to Legal Department.

4. While hearing, Mr. Rajendra Jadhav, learned advocate for the appellant, on instructions, he seeks permission to withdraw the present Appeal.

5. While arguing the case, he submitted that she was examined before the Court through Video Conferencing during the covid period, she could not understand properly the questions put to her, and therefore, it has led to injustice to her. He has further submitted that her statement recorded under Section 164 of 'the Code' was not with the Court, and therefore, if it is before the Court, it may support the case of the prosecution. He has further submitted that considering the history recorded by the Doctor, it clearly reflects that on

R/CR.A/1519/2022 ORDER DATED: 12/07/2023

promise to marry, respondent no.2 - accused entered into physical relations, and therefore, an offence is made out against respondent no.2 - accused, and therefore, he could not have been acquitted of the charges levelled against him.

6. Having heard learned advocate for the appellant and going through the Record and Proceedings, it appears that examining the witnesses during the covid period through Video Conferencing was permitted vide circular of the High Court and she was served with the summons and examined through Video Conferencing on 26.05.2021. It is reflected from the Court proceedings dated 26.05.2021 that she was examined through Video Conferencing. However, at no point of time, if at all she could not understand the questions put to her, she complained about not following the questions properly, and therefore, she could not reply it during the course of examination through Video Conferencing, appears to be not correct. Even after her examination was over, if at all she did not understand properly the questions put to her, she could have informed the learned Judge immediately.

7. The question of statement under Section 164 of 'the Code' is before the Court or not and whether it is recorded or not, when she has not supported the case of the prosecution while she was examined in chief by the prosecutor, it is of no use. We refrain ourselves from assigning further detailed reasons as the appellant wants to withdraw the present Appeal. Suffice it to say that for the very same offence, FIR has come to be filed after about the delay of nearly 3 months and she was aged about 22 years at the

R/CR.A/1519/2022 ORDER DATED: 12/07/2023

relevant time. When the case of the prosecution is not supported by her, even if it is established that the history before the Doctor was given by her is of no use and cannot be the sole ground to convict the accused. At any rate, since she does not wish to proceed further with this Appeal and wants to withdraw the same as submitted by the learned advocate for the appellant, on instructions, we refrain from examining in further deep details, and therefore, this Appeal stands disposed of as withdrawn.

Record and Proceedings be sent back to the concerned Court forthwith.

(UMESH A. TRIVEDI, J.)

(M. K. THAKKER, J.)

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