(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)
1. The present Acquittal Appeal has been filed by the
State under Section 378 of the Code of Criminal Procedure,
1973, challenging the judgment and order dated 20.02.1999
passed by learned Additional Sessions Judge, Morbi
(hereinafter referred to as "the Trial Court") in Session Case
No. 87 of 1998. By way of the impugned judgment and order,
the accused has been acquitted for the charges levelled
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against him under Section 376 of the Indian Penal Code,
1860.
2.0 The complainant registered an FIR on 29.07.1998 at
about 18:30 hrs. with Morbi Taluka Police Station for the
alleged offence of rape committed by the accused to his
younger daughter (hereafter referred to as 'victim girl') on
04.07.1998.
2.1 It is the case of the complainant that victim girl went to
the factory of accused at about 13:00 hrs., accused
committed rape in backyard of the factory of accused. As per
the FIR, the victim girl was aged about 13 years old on the
date of incident. The victim was brought to Janta Hospital
for primary treatment having suffered pain in her private
part on 04.07.1998.
2.2 After registering FIR, the Investigating Officer has
recorded the statement of the witnesses, prepared
Panchnama and completed other formalities of medical
examination of the victim girl and thereafter prepared
charge-sheet against the accused for the offence punishable
under Section 376 IPC.
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2.3 The case was committed by the trial Court and the
accused was charged for the offence punishable under
Section 376 IPC for forcibly raped the victim girl on
04.07.1998.
2.4 It appears that during the course of the trial, the
complainant as well as victim girl turned hostile having not
supported the case of the prosecution. Further, having come
on record that there is discrepancy about the age of the
victim girl and delay in registration of the FIR was not
satisfactory explained and so also fact came on record that
though the alleged incident of rape committed on
04.07.1998 but the victim girl was first examined by Dr. Nisha
Patel on 08.07.1998. Upon appreciation of oral as well as
documentary evidence come on record, having found so
mentioned discrepancy in the evidence inasmuch as the
victim and her family members do not support the case of
the prosecution, the trial Court has acquitted the accused
from the charges levelled against him.
3. We have heard learned Additional Public Prosecutor,
Mr. L.B. Dabhi at length, who has taken us through various
oral evidence as well as documentary evidence, which are on
record. We have independently examined and appreciated
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4. Learned trial Judge, framed charges vide Exh. 1 against
the respondent - accused for the aforesaid offence. The
respondent accused pleaded not guilty and claim to be tried.
He was tried for the said offences and in order to bring home
the charge, the prosecution has examined 16 prosecution
witnesses and also produced 15 documentary evidence,
which are as under :-
ORAL EVIDENCE
PW Name of the witness Exh.
DOCUMENTARY EVIDENCE
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Exh.
Sr. No. Particulars
1 Yadi by Medical Officer dated 02.08.1998
2 M.L.C. case papers dated 02.08.1998
3 Original certificate for the physical examination of victim
dated 02/08/1998
4 Yadi issued to send the samples of the victim collected by
the medical officer to CA. Dated 02/08/1998
5 Original panchnama of scene of incident dated
30/07/1998
6 Statement given by Dr. Nisha Patel on her letterhead
dated 18/08/1998
7 Copy of the first statement given by Dr. Nisha Patel on
her letterhead dated 04/08/1998
8 The order of assigning this investigation to head
constable Mr. zala dated 29/07/1998
9 The complaint of this offence was recorded as prescribed
in section 154 of the Cr. P.C.Office copy of the FIR dated ,
29/07/1998
10 A panchnama of clothes which were worn by the accused
at the time of incident and arrest dated 29/12/1998
11 A panchnama for the seizure of the clothes worn by the
victim at the time of the incident which were presented
by the victim in the presence of panch witness dated
02/08/1998
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12 A covering letter dated 29/08/1998 to send the semples
of the victim with the seal of police station
13 A letter from the investigating officer to C. A. Junagadh
was sent with muddamal samples dated 14/09/1998
14 Receipt of the said muddamal by the F.S.L. Junagadh
dated 15/09/1998
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15 A covering letter with examination report from F.S.L
Junagadh
5. Learned Additional Public Prosecutor, Mr. Dabhi would
submit that the findings of acquittal are contrary to law in
evidence on record and the findings recorded by the Trial
Court are erroneous and based on irrelevant material.
5.1 He would further submit that the trial Court has
committed an error in acquitting the respondent - accused
and has not properly appreciated the evidence produced on
record, though the prosecution had proved its case against
the accused and learned trial Court has given weightage to
the minor omission and contradiction in the version of
witnesses though there was no any material omission and
contradiction in the evidence of the witnesses.
5.2 Learned Additional Public Prosecutor would submit
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that the trial Court has not appreciated that the victim was
minor and aged about 13 years, raped by accused because of
his dominant position and having settled the matter by the
complainant with the accused, the complainant as well as the
victim girl were turned hostile, otherwise charges levelled
against the accused has been duly proved.
5.3 Learned Additional Public Prosecutor would further
submit that the victim girl was raped by the accused and
medical evidence laid by the prosecution proved the charged
against the accused as victim gird was sexually assault. He
would further submit that in case of the present nature,
merely because settlement had taken place between the
victim's family with accused, would not be a ground to acquit
the accused as the charge of Section 376 IPC is serious in
nature and when prosecution has proved the charge through
other evidence on record which would sufficient to held
accused guilty for committed the offence punishable under
Section 376 IPC.
5.4 Thus, the reasons assigned by the learned Trial Court
while acquitting the accused are unjust, improper, perverse
and unwarranted to the facts of the prosecution case and
thereby, has committed an error in acquitting the accused. It
is further submitted that the prosecution has established the
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guilt of all the accused and learned Trial Court has
committed an error both on law and facts.
5.5 Thus, the learned trial Court has wrongly recorded the
order of acquittal, which deserves to be quashed and
appropriate sentences for the offences be passed against
the accused and he urged this Court to allow the captioned
appeal.
6. Learned advocate Ms. Nirali Munshi was appearing for
the respondent- accused, is now become judicial officer but
after going through the record of the case and due to
following reasons, we are not satisfied with the submissions
so made by the learned Additional Public Prosecutor Mr.
Dabhi. So, we have not thought it to fit to issue fresh notice
upon the accused.
7. We have gone through the records and after re-
appreciating the evidence and keeping in mind, the following
ratio laid down by the Supreme Court of India while deciding
acquittal appeal, we deem it appropriate to decide the
appeal.
8. Before dealing with merit of the appeal, at this stage,
we would like to remind ourselves the position of law
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enunciated by Supreme Court of India in its various decisions,
whereby it has laid down several criteria while deciding
acquittal appeal.
9. One of the recent pronouncement, in which, the
Supreme Court of India in a case of Babu Sahebagouda
Rudragoudar and Others vs. State of Karnataka reported
in (2024) 8 SCC 149 has held as under :-
"39. This Court in the case of Rajesh Prasadv. State of Bihar and
Another, (2022) 3 SCC 471 encapsulated the legal position covering
the field after considering variousearlier judgments and held as below:-
"29. After referring to a catena of judgments, this Court culled
out the following general principles regarding the powers of the
appellate court while dealing with an appeal against an order of
acquittal in the following words: (Chandrappa case
[ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] "
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.
(2) The Criminal Procedure Code, 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
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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."
40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka,
(2023) 9 SCC 581 this Court summarized the principles governing the
exercise of appellate jurisdiction while dealing with an appeal against
acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against
acquittal, is entitled to re-appreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after re- appreciating the evidence, is required to
consider whether the view taken by the trial court is a possible
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view which could have been taken on the basis of the evidence
on record;
8.4. If the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere with the order of acquittal
only if it comes to a finding that the only conclusion which can
be recorded on the basis of the evidence on record was that the
guilt of the accused was proved beyond a reasonable doubt and
no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the judgment of
acquittal recorded by the trial Court in favour of the accused has to be
exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity;
41.2 That the same misreading/omission to evidence on record; is
based on a consider material
41.3 That no two reasonable views are possible and only the view
consistent with the guilt of the accused is possible from the evidence
available on record.
42. The appellate Court, in order to interfere with the judgment of
acquittal would have to record pertinent findings on the above factors if
it is inclined to reverse the judgment of acquittal rendered by the trial
Court."
10. Now, keeping in mind the aforesaid ratio and after
appreciating the evidence on record, following glaring facts,
which are noticed by learned Sessions Court, while acquitting
the accused, are required to be considered while deciding
the present appeal.
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11. The trial Court has considered the oral as well as
documentary evidence, whereby, each and every relevant
witness and the evidence has been discussed. In the case of
the present nature, the evidence of of the victim girl would
be paramount to bring home charge against the accused. But
the victim girl was examined as PW-3, who has not supported
the case of the prosecution, whereby, she has denied the
fact that the accused has committed the act of rape on her.
The victim has further disclosed that she is aged about 19
years old. Nothing further has been brought by the
prosecution from her evidence to prove charges of rape
against accused.
12. The complainant who happens to be father of the
victim girl declared hostile, who was examined as PW-2,
having so denied the factum of rape committed by the
accused though he registered FIR. Nonetheless, it has come
on record in his evidence that there is settlement between
the complainant and his family with the accused.
13. Be that as it may, it has further come on record during
the cross examination of PW-2 that FIR was registered at the
instance of Ashokbhai Chakubhai and Ranchodbhai
Ramjibhai, for which they have bear the expenses for
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engaging Lawyer as well. PW-2 has categorically admitted in
his cross examination that his younger daughter i.e. victim
girl was not raped by the accused.
14. As the FIR was registered on 29.07.1998 for the alleged
offence committed on 04.07.1998, so there was delay of 25
days in registering the FIR and there was no cogent and
convincing explanation coming forth by the complainant for
registration of the FIR after a gap of 25 days from the date
of alleged offence. Prima-facie, in the aforesaid evidence
came on record, the registration of such late FIR creates
serious doubt about its truthfulness
15. These two evidences i.e. oral evidence as well as late
FIR would fall the entire case of the prosecution as raised by
the learned APP would not bring home charge against the
accused.
16. Moreover, the trial Court has observed that the alleged
incident happened on 04.07.1998 but the victim was first
examined by Dr. Nisha Patel at Janta Hospital on 08.07.1998,
whereas in the FIR, it was so stated that the victim girl was
brought to the hospital on 04.07.1998 for primary treatment.
The evidence of Dr. Nisha Patel, who was examined as PW-8
having admitted in her cross examination that on 08.07.1998
the victim girl came for first time and guardian of victim girl
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having not disclosed anything about rape with the victim girl.
So, such evidence of Doctor would create serious doubt
about happening alleged incident of rape on 04.07.1998.
17. So far as the age of the victim girl is concerned, the oral
testimony of complainant would suggest that she was aged
about 19 years at the time of incident whereas in FIR the age
of victim girl was shown as 13 years. The birth certificate of
victim girl was produced by prosecution at mark 3/5 issued
by Morbi Nagarpalika sr. 1072 was not proved by prosecution
having not examined concern official who issued it.
Nonetheless, accused through his additional statement
submitted a certificate issued by Talati cum Mantri of village
Madhapar and Morbi Nagarpalika issued at sr. 1072 came on
record through accused additional statement in his evidence
produced at Exh. 46 & 47 would not indicate the name of the
victim girl rather Trial Court's observation that certificate
submitted at mark 3/5 is found false seems justified. So, in
absence of any exact proof of date of birth of victim girl, it
would not clear as to whether the victim girl was aged about
13 years or 19 years as the case may be. This would also one
of factor weighed which would go against the case of
prosecution.
18. Furthermore, evidence of Dr. Sukhdev Ramavat who
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was examined as PW-1 happens to be Medical Officer, Morbi
Government Hospital, who examined the victim in relation to
offence in question, would suggest that when he has
examined the victim on 02.08.1998, he could not observed
any external injury near private part of body of victim girl
and have not seen any stitches near private part of the victim
girl. These facts ruled out any possibility of rape and even
not support story so narrated in FIR. There was no other
material, whereby accused can be linked with the
commission of crime brought by the prosecution on record
and as such the prosecution has egregiously failed to prove
its case.
19. Thus, when after going through the impugned
judgment and re-appreciated entire sets of evidence as
discussed herein above, we are in complete agreement with
the observations and reasons assigned by learned Trial Court
while acquitting the accused. There are serious
contradictions, improbable story of prosecution, which lead
to only one conclusion that prosecution has been failed to
prove charges leveled against accused. Hence, the trial Court
has correctly acquitted the accused by giving him benefit of
doubt.
20. So, after considering these set of evidences on record
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and in light of the latest decision of the Hon'ble Supreme
Court as referred hereinabove, which deals with the law on
acquittal, we are of the opinion that no error has been
committed by the learned Additional Sessions Judge, Morbi,
in Sessions Case No. 87 of 1998 while acquitting the
respondent.
21. The appeal is accordingly DISMISSED. Resultantly, the
impugned judgment and order of the trial Court is hereby
confirmed. Bail bond, if any, shall stand cancelled. Record
and proceedings, if called for, be sent back to the concerned
trial Court forthwith.
(NISHA M. THAKORE,J)
(MAULIK J.SHELAT,J)
SALIM/
