Shashiben Jayeshkumar Jain vs State Of Gujarat
2025 Latest Caselaw 5506 Guj

Gujarat High Court

Shashiben Jayeshkumar Jain vs State Of Gujarat on 7 April, 2025

Author: Samir J. Dave

Bench: A.Y. Kogje, Samir J. Dave

                                                                                                        NEUTRAL CITATION




                             R/CR.A/781/2025                            ORDER DATED: 07/04/2025

                                                                                                         undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 781 of 2025

                       ==========================================================
                                                 SHASHIBEN JAYESHKUMAR JAIN
                                                            Versus
                                                   STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       MR. AAMIR S PATHAN(7142) for the Appellant(s) No. 1
                       MS MONALI H. BHATT, ADDL. PUBLIC PROSECUTOR for the Opponent(s)/
                       Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                               and
                               HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                                   Date : 07/04/2025
                                                    ORAL ORDER

(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)

1. Challenge in this appeal filed under section 413 of the B.N.S.S. is to the judgment and order passed by the learned Additional Sessions Judge, Court No.02, City Sessions Court, Ahmedabad in Sessions Case No. 244 of 2014 dated 30.09.2024 whereby, original accused Nos.1 to 5, respondent Nos.2 to 6 herein, were acquitted of the charge under sections 376, 493, 328, 384, 506(2), 507 and 114 of the IPC.

2. The brief facts of the prosecution case are as under;

On 30.08.2013 the appellant, original complainant, filed the FIR against original accused Nos.1 to 5, respondent Nos.2 to 6 herein, inter alia alleging that the complainant and

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

accused persons are residents of the same Society and known to each other as the complainant used to purchase grocery from the shop of respondent No.6-accused. The complainant was ill-informed by the accused persons that respondent No.2- accused practices 'tantra' and that a visit to his place would eliminate all sorrows from her life. It is further alleged that one day when respondent No.2-accused visited the house of the accused persons, respondent No.5-accused went to the house of the appellant-complainant and asked her to join their company in the 'tantric' rituals being performed at their house. The appellant-complainant was asked to sit besides respondent No.6-accused during the rituals and thereafter, the complainant was informed that the respondent No.6-accused and complainant have now become husband - wife. It is further alleged that thereafter, respondent No.5-accused took the complainant to the house of the accused persons and served her some liquid, which made the complainant unconscious. It is alleged that respondent No.5-accused, thereafter, locked the room from the outside and respondent No.6-accused, who was present inside the house, committed the offence of rape on the complainant-victim and consequently, the impugned FIR came to be registered against the respondents-accused persons.

3. Investigation was carried out and statements of witnesses

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

were recorded. As sufficient evidence was found against the respondents-accused, they came to be arrested and at the end of investigation, charge-sheet was filed against them and as the respondents-accused pleaded not guilty to the charge levelled against them, trial was initiated. During the trial, the prosecution had examined 12 (twelve) witnesses and had relied upon several documentary evidence. However, at the end of trial, the Court below acquitted the respondents-accused of all the charges by passing the impugned judgment and order dated 30.09.2024. Against the said judgment and order of acquittal, the appellant-complainant has preferred the present appeal.

4. Learned advocate Mr. Aamir S. Pathan appearing for the appellant-victim submitted that the Court below has not appreciated the evidence on record in its proper perspective. It was submitted that though the appellant-victim has categorically deposed about the involvement and the role played by each of the accused in her evidence (Exhibit-13), the Court below has not believed the same on the ground that are discrepancies in her evidence. However, the discrepancies are not on vital aspects of the case and are, in fact, minor in nature and hence, the Court below ought not to have disbelieved the evidence of the appellant-victim.

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

4.1 It was further submitted that the husband of the appellant-victim was examined vide Exhibit-26 and he has also supported the prosecution case. The attention of the Court was also drawn to the deposition of Medical Officer - Dr. Soniya Chabda (Exhibit-37), who has also supported the prosecution case. It was, accordingly, urged that the Court below has seriously erred in passing the impugned judgment and order of acquittal in favour of the respondent-accused persons.

5. Heard learned advocate for the appellant-victim and perused the documents on record. Pursuant to the order of this Court dated 25.03.2025, the record and proceedings were received from the concerned Court below and the same were also perused during the course of hearing.

6. The appellant-victim was examined as PW-1 (Exhibit-13) before the Court below and it appears from her evidence that she is major and a mother of three children, the eldest being a daughter aged 17 years. In the FIR filed in connection with the alleged offence, the appellant-victim has alleged about the commission of rape on three to four different occasions; however, no specific date as to when the alleged offence was committed is mentioned in the FIR. When a heinous offence of rape is committed, the natural corollary is that the victim concerned would report about the offence to the law

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

enforcement agency at the earliest available opportunity and under no circumstance, the victim would wait until the offence is committed on few more occasions. In the present case, in the FIR itself, the appellant-victim has averred about the alleged commission of rape by the accused on three to four occasions but, she has not reported about the same for a very long period, as the record reveals that the appellant-victim and respondent No.6-accused were in a relation as back as on 29.05.2013 and the FIR came to be registered only three months thereafter, i.e. on 30.08.2013. The aforesaid unexplained delay of three months in registering the FIR speaks about the conduct of the victim and the genuineness of the prosecution story.

7. It is pertinent to note that in her cross-examination, the appellant-victim has categorically admitted that she has never entered the shop or house of the accused. That being the fact situation, the prosecution story that on one fine day, the respondent No.5-accused took the appellant-victim to the house of the accused and made her consume some drink, which rendered her partly unconsciousness and thereafter, respondent No.5-accused locked the door of the house from the outside while respondent No.6-accused was inside the house and then respondent No.6-accused committed the alleged offence of rape on her is totally incorrect and falls flat.

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

8. The fact that the appellant-victim and respondent No.6- accused were into a relationship is established from the evidence of the husband of the appellant-victim, who has been examined as PW-2 (Exhibit-26). From his statement before the police as also his evidence before the Court below, it is established that the appellant-victim had planned to elope with respondent No.6-accused on 29.05.2013 along with her younger son but, the plan had failed. Considering the above aspects, the story of rape put-forth by the prosecution appears to be totally false and frivolous and in fact, the relationship appears to be consensual in nature.

9. The principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the Apex Court has laid down the following principles;

"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, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

[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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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."

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

9.1 Thus, it is a settled principle that while exercising appellate power, even 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.

10. In the case of State of Goa V. Sanjay Thakran & Anr., (2007) 3 S.C.C. 75, the Apex Court reiterated the powers of the High Court in such cases. In Paragraph-16 of the said decision, the Court observed as under;

"16. From the aforesaid decisions, it is apparent that 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 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 any of the accused is connected with the commission of the crime he is charged with."

NEUTRAL CITATION

R/CR.A/781/2025 ORDER DATED: 07/04/2025

undefined

11. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

12. In view of the above discussion and keeping in mind the law governing appeals arising out of a judgment and order of acquittal, this Court finds no substance in the present appeal. We are in complete agreement with the reasoning given by and the findings arrived at by the Court below in the impugned judgment and order and hence, find no reasons to entertain this appeal. In the result, the appeal is dismissed. Record and proceedings be sent back to the trial Court concerned forthwith.

(A.Y. KOGJE, J)

(SAMIR J. DAVE, J)

PRAVIN KARUNAN