Gujarat High Court
State Of Gujarat vs Sureshbhai Balubhai Jadav on 16 April, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.MA/1980/2023 ORDER DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1980 of
2023
In R/CRIMINAL APPEAL NO. 233 of 2023
With
R/CRIMINAL APPEAL NO. 233 of 2023
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STATE OF GUJARAT
Versus
SURESHBHAI BALUBHAI JADAV
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Appearance:
MR RONAK RAVAL, APP for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 16/04/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. On 11th March 2024, this Court has passed the following
order :
"1. Though served, none chose to appear.
1.1. As a last chance, S.O. to 19th March 2024."
2. Today also, no one has chosen to appear on behalf of the
respondent. Hence, RULE.
3. The present application has been filed seeking the following
reliefs :
NEUTRAL CITATION
R/CR.MA/1980/2023 ORDER DATED: 16/04/2024
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"(a) Your Lordships may be pleased to grant leave to prefer
an appeal against judgment and order of acquittal dtd.
15.3.2022 passed by the court of learned Special Judge
(POCSO), Gir Somnath at Veraval in Special (POCSO) Case
No.14/2019, acquitting opponent for the offence under sec.
4, 8, 12 of the POCSO Act;"
4. Learned APP Mr.Ronak Raval appearing for the applicant-
State has submitted that the State has preferred the present
appeal challenging the judgment and order of acquittal dated
15.03.2022 passed by the learned Special Judge (POCSO), Gir
Somnath at Veraval in the Special (POCSO) Case No.14 of 2019,
whereby the learned Judge was pleased to acquit the respondent
for the offence under Sections 4, 8 and 12 of the POCSO Act.
Mr.Raval has submitted that, therefore, the applicant - State
seeks leave to appeal under the provisions of Section 378(1)(3) of
the Code of Criminal Procedure against the order of acquittal
passed by the trial court.
5. As per the case of the prosecution, on 01.09.2019 at
around 2:00 to 3:30 hours in the night, while the victim had
gone to attend the nature's call at the bathroom behind her
house and despite knowing the fact that the victim is minor, the
NEUTRAL CITATION
R/CR.MA/1980/2023 ORDER DATED: 16/04/2024
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accused illegally entered into the house of the victim by jumping
the varanda and abducted the victim from the lawful possession
of her father and taken her to his house, beaten her and
forcefully committed rape on her against her will. Therefore, the
complaint in this regard came to be lodged before the Talala
Police Station, which was registered as CR-I No.45/2019 for the
offence under Sections 363, 366, 376, 323, 342 of the Indian
Penal Code and under Sections 4, 8, 12 of the POCSO Act and
the investigation was carried out.
6. Learned APP has submitted that the judgment and order of
acquittal passed by the learned Judge is based on inferences,
not warranted by facts of the case and also on presumption, not
permitted by law. It is further submitted that the learned Judge
has erred in acquitting the respondent for the offence under
Sections 363, 366, 376, 323, 342 of the Indian Penal Code and
under Sections 4, 8, 12 of the POCSO Act.
7. Learned APP has submitted that the learned Judge has
failed to appreciate the evidence of the victim at Exh.56.
According to the evidence of the victim, the incident had taken
place on 01.09.2019. She has further stated in her deposition
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R/CR.MA/1980/2023 ORDER DATED: 16/04/2024
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that on 31.08.2019 at around 11:00 hours in the night, while
she had gone to attend the nature's call behind her house, at
that time, the respondent-accused Suresh Balubhai Jadav
entered into her house by jumping the wall, caught hold of the
victim and while she was protesting, the respondent-accused
Suresh slapped her, gagged her mouth and taken her to his
house, where he committed rape on her against her will. Thus,
so far as the evidence of the victim is concerned, she has fully
supported the case of the prosecution. Then, in that case, the
learned Judge ought not to have disbelieved the case of the
prosecution.
8. Learned APP has submitted that the learned Judge has
failed to appreciate the statement of the victim recorded by the
Executive Magistrate under Section 164 of the Code of Criminal
Procedure. It is further submitted that the learned Judge has
failed to appreciate the evidence of Dr.Ashishkumar
Parsottambhai Makadiya at Exh.36. According to this witness,
on 03.09.2019, while he was discharging his duties at the Public
Health Centre, Talala, he had examined the accused. As per the
opinion of this witness, the respondent-accused was competent
to commit sexual intercourse and no injuries were found on the
NEUTRAL CITATION
R/CR.MA/1980/2023 ORDER DATED: 16/04/2024
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private part of the respondent-accused.
9. The aforesaid averments and contentions have remained
uncontroverted as the respondent has chosen not to appear
before this Court. On perusal of the judgment of the trial court
as well as the averments made in the application, we are of the
considered opinion that this is a fit case for grant of leave to
appeal.
10. The application for leave to appeal is allowed. The acquittal
appeal is admitted.
11. Issue bailable warrant in the sum of Rs.5,000=00 against
the respondent-accused.
12. Registry is directed to call for the records and proceedings
from the concerned court along with the paper-book by the next
date of hearing. Stand over to 19th June 2024.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
/MOINUDDIN
