(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of
acquittal dated 31.08.2004 passed by the learned Additional Sessions
Judge, Fast Track Court No.3, Jamnagar in Sessions Case No.21/2004,
whereby the respondent-accused came to be acquitted for the offences
punishable under Sections 376, 366, 324 and 506(2) of the Indian Penal
Code, the appellant - State has preferred the present appeal under Section
378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
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2. The brief facts leading to the filing of the present appeal are as
under:
accused acquitting him of the charges levelled against him.
3. We have heard learned advocates for the respective parties and
minutely examined oral and documentary evidence adduced before the
learned Sessions Court. During the course of trial, the prosecution
examined in all 12 witnesses. The details of the aforesaid evidence led by
the prosecution are reproduced in tabular form as under:
~:: Oral Evidence ::~
Sr. No. Particular Exh.
Complainant/Victim PW-1
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~:: Documentary Evidence ::~
Sr. No. Particular Exh.
1. Injury Certificate from Shivani Surgical Hospital 15
3. True copy of extract from passenger register of 21
Hotel Jalaram
6. Yadi for registration of offence against accused 26
7. Yadi for medical examination of victim with 29
muddamal
9. Gynaec examination certificate of victim 31
10. Yadi for injury certificate of victim with 33
muddamal
13. Yadi to Medical Officer, Surajkaradi for medical 38
examination of accused with muddamal
4. Mr. Ronak Raval, learned APP appearing for the appellant - State
submits that the impugned order is required to be interfered with mainly
on the ground of the deposition of the victim who is examined as PW
No.1 at Exh.12 and her testimony establishes the abduction on
13.01.2002 at 09:00 hours, repeated rape against her will from
13.01.2002 to 15.05.2002 at various places, injury by axe and criminal
intimidation. It is submitted that it is not in dispute that the victim had
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head injury requiring stitches and was treated at Bharuch, which emerges
from injury certificate at Exh.15 and case papers at Exh.16. In view of the
aforesaid submissions, it is submitted that the learned trial Court erred in
acquitting the accused by passing the impugned order.
4.1 Learned APP has further referred to the evidence of the other
material witnesses and submitted that from the evidence of the said
witnesses, the involvement of the accused in commission of the crime is
proved and therefore this Court may interfere with the said finding and
record the conviction.
5. Mr. Shailesh C. Sharma, learned Advocate for the respondent-
accused submits that no interference is called for in the impugned
judgment in view of the fact that evidence of the Prosecution Witness
No.1-victim is unreliable as her version before two Doctors is
contradictory and she had ample opportunities from 13.01.2002 to
15.05.2002 to escape or to lodge complaint; but she did not do so. In
cross-examination, she has admitted that the present complaint was filed
on advice of her advocate to defend against complaint filed by her
husband. It is submitted that the victim's mother examined as PW No.8 -
Ms. Gauriben at Exh.27 who turned hostile stated that the victim has
habit of running away. It is submitted that no independent witness from
places visited or hospital at Bharuch is examined, as also no recovery of
knife or axe is made by the prosecution and hotel register shows
consensual stay. It is submitted that in absence of any evidence proved
beyond reasonable doubt, this Court may not interfere with the impugned
judgment and order wherein the respondent is acquitted.
6. Heard the learned advocates for the parties and perused the
deposition of witnesses as also documentary evidence placed on record as
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well as the order passed by the learned Sessions Court. We have also
perused the deposition of the victim who is the sole witness to the alleged
incident.
7. Now, if the deposition of victim examined as PW No.1 at Exh.12 is
seen, she has stated at the time of incident she had undergone some
medical treatment; however no such evidence in support thereof is placed
and therefore her evidence on the said aspect does not earn any credence.
While narrating the entire case making allegations against the respondent
- accused and the places where she along with accused had visited under
the compulsion do not also find any substance and credence as no such
prudent man can be expected to not raise any voice or alarm in such
situation even though the prosecutrix is under such compulsion. No such
evidence to show that victim had raised any alarm or raised her voice is
surfaced from her evidence. On the contrary, as reflected in cross-
examination, she has admitted of having filed the complaint on
advocate's advice. She has further admitted in the cross-examination that
she had an ample opportunities to escape/complain at Poshitra, Bhatia,
Bhuj, Verad, Ratna Salt, Bharuch hospital; but she did not do so and
appears to have recorded contradictory history to Dr.Jitendra (fall injury)
and Dr.Nitaben (abduction/rape), and her conduct of staying 4 months
without complaint does not inspire confidence. It also appears that
admittedly the prosecution relies solely on the victim but her evidence
does not support the case of prosecution. Furthermore, her conduct of not
raising alarm despite opportunities, contradictory medical histories,
admission of motive to file false case, and absence of corroboration from
independent witnesses at various places or hospital creates doubt on
credibility of her evidence.
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8. Prosecution Witness No.9 - mother of victim Ms.Gauriben is
examined at Exh.27; however she has not supported the case of the
prosecution. Likewise, Prosecution Witness - Mulubhai Mandanbhai who
is husband of the vicitm has been examined at Exh.18; however the said
witness has also not supported the case of prosecution. No recovery of
weapons is made and hotel register (Exh.21) shows consensual stay as
husband-wife and thus this itself shows that victim had gone to the
respondent - accused of her own volition and later on just to save herself
she had lodged the complaint against the respondent - accused. Thus, the
sum and substance of the testimony of the victim, coupled with
contradictions and admissions, raise doubts about veracity of the incident.
9. Prosecution Witenss No.10 - Bodhabhai Khimabhai Jogal who is
the Police Witness has been examined at Exh.32 who has only deposed to
have conducted the investigation procedure, recorded the statement of the
witneses and thereafter lodged the complaint. Furthermore, all the Panch
Witnesses have turned hostile and do not support the prosecution case.
10. It is not in dispute that though the victim had a head injury; but
considering the deposition of victim (PW-1) at Exh.12 and Dr. Jitendra
(PW-3) at Exh.14, the history given before the Doctor was of falling and
not by any assault. The competent court considered the fact that the
victim did not complain despite opportunities and filed case for self-
defence. Such testimony is not credible. Solely on the evidence of the
victim whose evidence are inconsistent to the prosecution case, the
accused cannot be convicted. Therefore, the conclusion arrived at by the
learned competent court of acquitting the respondent - accused does not
warrant any interference. Thus, in absence of reliable evidence proved
beyond reasonable doubt, the order passed by the competent court is just
and proper and in our opinion, the same does not require any interference.
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11. At this stage, this Court may refer to the decision of the Hon'ble
Apex Court in the case of Rajesh Prasad v. State of Bihar and Another
[(2022) 3 SCC 471] encapsulated the legal position covering the field
after considering various earlier 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 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, reappreciate
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
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
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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."
12. In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023)
9 SCC 581] the Hon'ble Apex Court has 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 reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to consider
whether the view taken by the trial court is a possible 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
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of the accused was proved beyond a reasonable doubt and no other
conclusion was possible."
13. In light of the above legal position and for the reasons recorded in
the foregoing pagraphs, coupled with the fact that the case of the
prsoecution does not get support from the evidence recorded by the
learned trial Court, the present appeal fails and is accordingly dismissed.
Records and Proceedings, if any, be remitted to the Court concerned
forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
MVP
