The State Of Gujarat vs Jaydevsinh Bachubha Jadeja
2023 Latest Caselaw 7195 Guj

                                                                                 NEUTRAL CITATION




     R/CR.A/1031/2005                           JUDGMENT DATED: 03/10/2023

                                                                                  undefined




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 1031 of 2005

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                 Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY                                Sd/-
=============================================
1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                        YES

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 ?

=============================================
                           THE STATE OF GUJARAT
                                  Versus
                  JAYDEVSINH BACHUBHA JADEJA & 2 other(s)
=============================================
Appearance:
MR RONAK B. RAVAL, APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
=============================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
          and
          HONOURABLE MR. JUSTICE M. R. MENGDEY

                            Date : 03/10/2023

                      ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. In the present appeal, presented under Section 378(1)(3) of the Code of Criminal Procedure Code, 1973 (for short, "the Cr.P.C."), the State has assailed the judgment and order dated 14.03.2005 passed by the learned Additional Sessions Judge,

NEUTRAL CITATION

R/CR.A/1031/2005 JUDGMENT DATED: 03/10/2023

undefined

Fast Track Court No.3, Surendranagar in Sessions Case No.47 of 2004. The respondents-accused were tried and charge- sheeted by the Trial Court under Sections 363, 366, 506(2), 376(2)(g) read with Section 34 of the Indian Penal Code, 1860 (for short, "the IPC"). The Trial Court, after appreciating the necessary evidences laid down by the prosecution and at the end of the trial vide judgment and order dated 14.03.2005 has acquitted the accused for the offences, for which, they were charged.

2. The facts, in short, giving rise to the present appeal, as per the case of the prosecution is that the victim as well as complainant - Ashaben Dhirubhai Jadav (PW-1), has filed a complaint being CR No.I-121 of 2004 before Surendranagar Police Station on 22.06.2004, for the alleged offence under Sections 363, 366, 506(2), 376(2)(g) read with Section 34 of the IPC, stating that she is aged 15 years and doing household work. According to the complainant, it is the case of prosecution that she is residing at Lati Bazar, B/h. Raj Timber Market at Surendranagar along with her father and mother. Her father is a truck driver and her mother - Gauriben is doing labour work. It is further the case of prosecution that on 19.06.2004, at about 11.00 hours in the morning, she had gone to purchase cutlery and when she reached near Milan Talkies at about 11.30 hours, the respondents - accused came in a Maruti car bearing registration No.GJ-13-F-1069 and they offered lift to the complainant. It is further the case of prosecution that after giving lift to the complainant, they had taken the car towards Raj Hotel, through a cross-way, which is going towards Ratanpar, at that time, the victim had inquired

NEUTRAL CITATION

R/CR.A/1031/2005 JUDGMENT DATED: 03/10/2023

undefined

from the accused that where they were taking her. At that time, accused - Jaydev and Rajubhai Bharwad, were sitting with her and they had threatened the victim to keep silent, otherwise she would be finished, therefore, she did not shout for help and the accused persons have taken victim at the guest house at Chotila, where all the accused persons have committed rape on her against her will. It is further the case of the prosecution that from Chotila, she was taken to the guest house at Morbi and there also, the accused persons have also committed rape on her against her will during night as well as at noon. It is further the case of prosecution that thereafter, the accused persons have taken her at Surendranagar and dropped at Surendranagar bus stand at about 1.00 a.m. at night, where also the accused threatened the victim not to disclose the fact before anybody otherwise she will be finished. Thereafter, a complaint being CR No.I-121 of 2004 was lodged for the alleged offence under Sections 363, 366, 376(2)(g) and 506(2) of the IPC before the Surendranagar Police Station against the respondents accused.

3. On registering the complaint, the police investigated the case and the Investigating Officer found sufficient evidence against the respondents - accused and the charge-sheet was filed in the Court of the learned J.M.F.C., Surendranagar, since the case was triable before learned Sessions Judge, the same was committed to learned Additional Sessions Judge, Surendranagar under Section 209 of the Cr.P.C. and numbered as Sessions Case No.47 of 2004, wherein the respondents accused have not pleaded guilty for the charges levelled against them and claimed to be tried. The learned Judge, after

NEUTRAL CITATION

R/CR.A/1031/2005 JUDGMENT DATED: 03/10/2023

undefined

appreciating the necessary evidence laid down by the prosecution, has acquitted the respondents - accused vide judgment and order of acquittal dated 14.03.2005.

4. Learned Additional Public Prosecutor Mr.Raval, has submitted that the Trial Court has failed to appreciate the direct and indirect evidence in support of the prosecution case. He has further submitted that the Trial Court has not properly appreciated oral as well as documentary evidence and thereby committed error in acquitting the respondents for the alleged offences for which, they were charged. He has further submitted that the Trial Court has erred in relying upon the minor omission, contradictions and inconsistency, which do not go to the root of the prosecution case.

5. Learned Additional Public Prosecutor has further submitted that the Trial Court ought to have seen that the prosecution witnesses, including the victim as well as her father and mother have been turned hostile and they are not supporting the prosecution case either one or another reasons. It is further submitted that the Trial Court ought to have relied upon the evidence of prosecution, in which, it has been established by way of evidence that as on the date of incident, the victim was out of her house and she was taken at Chotila and Morbi, where rape was committed on to her.

6. Learned Additional Public Prosecutor has further submitted that the Trial Court has not properly appreciated the evidence of Dr.Shailesh Dayanand Bhatt, who is examined at Exh.43, before whom the victim has given history that on

NEUTRAL CITATION

R/CR.A/1031/2005 JUDGMENT DATED: 03/10/2023

undefined

19.06.2004 at about 11.00 hours, she was taken at Chotila in a Maruti Car by the accused - Dinesh, Jaydev and Raju and they all have committed rape on her and thereafter, from Chotila the victim was taken at Morbi Guest house, where also rape was committed by them on her against her will. It is further submitted that the Trial Court has also not properly appreciated the evidence of Dr. Jagrutiben Jayantilal Janshali (at Exh.39) and Dr.Chirag Bhupendra Patel (at Exh.56) and looking to the evidences of the medical officers, there are sufficient reasons to presume against the accused persons. It is submitted that the Trial Court has committed error in holding that looking to the FSL report at Exh. 68 and serological report at Exh. 69, it is crystal clear that respondents are not involved commission of offence. It is thus, submitted that the present appeal may be allowed by quashing and setting aside the judgment and order of acquittal of the accused.

7. Though served, the respondents have chosen not to appear before this Court to defend their case in the appeal. We have heard the learned APP as well as examined the evidence on record.

8. We have examined the evidence as well as the observations made by the Trial Court. It is not in dispute that the complainant (PW-1) - herself, who is examined at Exh.13 and father of the prosecutrix (PW-21) - Dhirubhai Jadavbhai Koli do not support the case of the prosecution. It is a harsh fact that the complainant (PW-1) has turned hostile and has not supported the case of the prosecution. The father of the prosecutrix - Dhirubhai (PW-21), who is examined at Exh.75

NEUTRAL CITATION

R/CR.A/1031/2005 JUDGMENT DATED: 03/10/2023

undefined

has also turned hostile and the mother of the prosecutrix - Gauriben (PW-3), who is examined below Exh.16, has also not supported the case of the prosecution.

9. The father of the prosecutrix - Dhirubhai, in his deposition at Exh.75 has categorically stated that he does not recognize the accused and he has further stated that no incident as alleged has occurred with her daughter.

10. Looking to the evidence - both oral as well as documentary, we find that the Trial Court has not committed any perversity or illegality in acquitting the accused. There are three medical officers who are examined as witnesses by the prosecution. All of them have recorded the history of the victim. Dr.Shailesh Dayanand, Exh.43 examined the victim on 22.06.2004, and in the history recorded by her, she has stated that the accused had taken her on 19.07.2004 at around 11 a.m. in the car at Chotila, and all of them had sexual intercourse with her and then she was taken to Morbi, where also she was subjected to sexual intercourse, and thereafter on the next day she was dropped at the bus stand. Dr. Jagrutiben, who has examined the prosecutrix in her deposition at Exh.39 has stated that when the victim was produced by the police before her, she has not named any accused, and in fact in the history recorded by her, she has not narrated any incident of rape. She has not noticed any external injuries or internal injuries on her private parts, and she was used to sexual intercourse. The third doctor, Chiragbhai Bhupendrabhai Patel, (PW-16), who is examined at Exh.56 - has not supported the case of the prosecutrix. In his deposition, he has stated that

NEUTRAL CITATION

R/CR.A/1031/2005 JUDGMENT DATED: 03/10/2023

undefined

the prosecutrix has stated before him that she had gone with some party on 19.06.2004. It is deposed by him that he did not find any injury marks on the private parts of the prosecutrix. On the contrary, he has stated that the victim was habitual to the sexual intercourse. He has further narrated in the history, as narrated by the victim before him that he has not named anyone and has denied the incident of rape. The FSL and the serological report at Exh.68 and Exh.69, also do not support the case of the prosecution.

11. Looking to the different version narrated by the prosecutrix before the doctors, and in wake of fact that she has turned hostile, we are not inclined to disturb the acquittal recorded by the Trial Court after appreciation of the evidence. Further, we do not find any infirmity in the impugned judgment and order passed by the Trial Court recording the acquittal of the accused suffers from any perversity and the same in any manner would compel us to reverse it.

12. Accordingly, the appeal fails and the same is dismissed. Record and proceedings shall be returned to the concerned Trial Court, forthwith.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(M. R. MENGDEY,J) MAHESH/01