(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal, under section 378 of the Code of Criminal Procedure, 1973, has been filed by the State of Gujarat against the judgment and order of acquittal dated 09.6.1992 passed by the learned Addl.Sessions Judge, Amreli in Sessions Case No. 74 of 1988 for offences punishable under sections 363, 366 and 376 of Indian Penal Code.
2. The facts of the case in brief are that the complainant Bakulesh Jayantilal Rajgor was staying with his mother, father, brother and sister-Daksha in Navi Vasahat Ganesh Society, Dhari Taluka, District Amreli. On 15.8.1986 at about 9.00 p.m., all the family members except his father were at home. At that time, sister of the complainant, Daksha in the pretext of going to answer nature's call, went out of the house. As she did not return for long, the complainant went around looking for her and he found the door of the toilet was half opened and light was on. On checking, he could not find her there. Then he started looking everywhere including houses of the neighbours. 15th being Independence Day, in a nearby place celebrations were going on and they got announced through the loudspeaker about missing of the girl Daksha.
Upto late night they were searching for the girl and during that time, one Ruparalia Rasiklal Parshottamdas went and informed everyone that at about 9.30 p.m., when he went to relieve himself, he had seen the Range Forest Officer K H Kumar with Daksha on his Bullet Motor Cycle going towards Khicha. The complainant immediately informed some of his relatives, Dr. Manubhai Bharad, Dave Maheshkumar Mohanlal etc and all were sent to different directions to search the girl-Daksha. Meanwhile he informed his father at his work place telephonically about missing of his sister and that the Range Forest Officer has kidnapped Daksha. All started searching her at different places like Rajkot, Junagadh, Una, Jasadhar Tulsishyam and all the offices of the Forest Department. Ultimately a complaint has been filed against the accused before Dhari police station alleging that the accused had kidnapped his 17 years old sister. After investigation, the complaint was registered as CR.I. No. 48 of 1986. Sub Inspector, Dhari police station, after drawing panchnama charge sheet was filed against the accused K.H. Kumar vide Exh.1 for offences under sections 363, 366 and 376 of Indian Penal Code. As the offences were triable by the Sessions Court, the case was committed to the Court of Sessions under section 209 of the Criminal Procedure Code.
3. The respondent-accused pleaded not guilty to the charges and claimed to be tried.
3.1. To prove the case, the following prosecution witnesses were examined – PW 1 Bakulesh Jayantilal, Exh.6, PW 2 Jyotsnaben Laxmanbhai Exh.9, PW 3 Rasiklal Parshotamdas Exh.10, PW 4 Keshubhai Ramjibhai Joshi, Exh.18, PW 5 Shantilal Damodardas Exh.19, PW 5 Purnimaben Pranbhai Mehta, Exh.22, PW 6, Dakshaben Jayantilal Rajgor Exh.26, PW 7 Narsihbhai Karaman Mandavia Exh.29, PW 8 Narshibhai Karamalibhai Exh.30, PW .. Jayantilal Amrutlal Vithlani, Medical Officer, Exh.36, PW 9 Babubhai Dadubhai, Head Constable Exh.39, PW 10 Ramlal Mohanlal Nai, PSI (Retd), Investigating Officer Exh.40 and PW 11, Savjibhai Mohanbhai, Medical Officer, Amreli, Exh.45.
4. Besides aforesaid oral evidence, documentary evidence such as complaint Exh.7, Panchnama dated 24.2.92 Exh.11, Arrest panchnama Exh.12, Panchnama of Motorcycle, Exh.14, Report of Chemical Analyser, Exh.15, Report of Serologist Exh.17, Panchnama of place of incident, Medical certificate Exh.37 etc. were also produced which were taken into consideration by the learned Addl.Sessions Judge.
5. After examining the prosecution witnesses, the learned Addl. Sessions Judge has recorded statement of the accused under Section 313 of the Criminal Procedure Code. After hearing the arguments of the defence Advocate, the learned Sessions Judge has acquitted the accused of all the charges levelled against him as aforesaid by giving benefit of doubt.
6. We have heard the learned APP Mr L R Pujari for the appellant-State. The learned APP submitted that the learned trial Judge has erred in acquitting the accused, though there are ample evidence to connect the respondent accused with the crime. He submitted that the learned trial Judge has erred in discarding the evidence of the complainant which has supported the FIR which was lodged immediately after the incident. He submitted that the learned trial Judge also erred in holding that the victim girl Dakshaben was more than 16 years at the time of the incident and the victim had gone with the accused voluntarily and there was consent of the girl for the sexual intercourse. The learned APP finally submitted that the learned trial Judge ought to have held that the prosecution has proved its case beyond reasonable doubt and thereby the respondent-accused was required to be convicted for the offences he was charged with.
7. Learned Advocate Mr M B Parikh appearinig for the respondent-accused submitted that the trial court has rightly appreciated the evidence which is forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He submitted that there are glaring contradictions in the depositions of the prosecution witnesses which go to the root of the matter. He also submitted that this being an appeal against the order of acquittal, the judgment and order rendered by the trial court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. He, therefore, prayed that the Appeal be dismissed.
8. We have considered the rival submissions made by the learned Advocates for the parties. Considering all the relevant aspects of aspects relating to the present case, first of all we will see the evidence which has been forthcoming on record pertaining to the age of the victim Dakshaben. In para 11 of the judgment, the leaned trial Judge has dealt with the deposition of PW 11 Dr.Savjibhai Mohanbhai at Exh.45. This witness has, after examining the victim, produced the original certificate at Exh.46. As per the Doctor's deposition the age of 16 years and 9 months of the victim has been stated in the certificate at Exh.46. In the cross-examination the Doctor has admitted that he has not obtained opinion of the Radiologist by X-Ray plate or by means of Oscification Test. He has deposed that the hymen of the victim Dakshaben was ruptured though not recently and there was no swelling or pain reported which shows that she was habituated to indulging in to sexual intercourse. The date of birth of the victim shown in the School Leaving Certificate is 19.11.1969 but the prosecution has failed to bring evidence on the record to show that when the father had gone to the School, then on what basis he had given the date 19.11.1969 as date of birth of the victim. Thus in our view, no satisfactory evidence has been forthcoming on the record to show that the victim was less than 18 years old. Considering the entire evidence forthcoming on record on this issue and referring the certificate issued by the Doctor and also the deposition at Exh.45, we can say that the victim Dakshaben was not minor.
8.1. From the evidence on record and from the details stated by the accused in his further statement, it is proved that Dakshaben went with the accused on the night of the incident. From the evidence of Dakshaben, she has admitted in her cross examination that she was in love with the accused prior to the incident. She has admitted that the accused wrote many letters to her. However, no such letter is produced in this case. From the reply to the letter written by Dakshaben to the accused, it can be assumed that Dakshaben was very much in love with the accused and she had loved the accused more than the God. It is also proved from the letter that Dakshaben had full faith in the accused. As there was good relation between them, it is not believable that the accused might have intimidated Dakshaben on the day of the incident. In para 8 of her cross examination, Dakshaben has admitted that she has stated before Kashmiraben of Women Shelter Home, Vadodara that as quarrel took place in the house, she had left her house in anger and she went to Junagadh with Rs. 200/- and after staying there for two days she went to Ahmedabad where she stayed for one day and thereafter she returned to Vadodara. She also stated that the said fact was stated at the instance of the accused. This is unbelievable because though she has not stated any such fact before the police, she has so stated before the Court for the first time. From the statement of Dakshaben made before Kashmiraben Desai, it can reasonably presumed that Dakshaben herself might have left her father's house on her own and joined the accused. From the above, if Dakshaben willingly left her house and moved around with the accused for days together, it cannot be said that the accused had committed any offence by seducing or intimidating her, especially when it is not proved that the age of Dakshaben was less than 18 years and if she was more than 18 years, she being an adult, could go anywhere on her own if she so desires.
9. We have carefully perused the entire judgment and order dated 09.6.1992 passed by the learned Addl.Sessions Judge, Amreli in Sessions Case No. 74 of 1988. The learned Addl.Sessions Judge, after considering the oral as well as documentary evidence led before him, has recorded findings that the prosecution has failed to prove that the accused had committed offence under sections 363, 366 and 376 of IPC. The observations made by the learned trial Judge cannot be said to be erroneous and therefore, he has rightly acquitted the accused for the aforesaid offences. We are in complete agreement with the same and we do not interfere with the same.
10. It is well settled that in acquittal appeal where there is a possibility of two views, the one favourable to the accused should be adopted. It is also well settled principles of law that the Appellate Court would be slow to interfere in an order of acquittal until and unless the judgment of the trial court is perverse or demonstrably unsustainable. In the present Appeal, we find that the reasons given by the trial court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the trial court has committed any error in acquitting the accused.
10.1. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
11. In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal is dismissed. The impugned judgment and order dated 09.6.1992 passed by the learned Addl.Sessions Judge, Amreli in Sessions Case No. 74 of 1988 is confirmed. Bail Bond stands cancelled.
12. Office is directed to send back the Records & Proceedings to the trial court forthwith after following the due procedure.
[RAVI R TRIPATHI, J.]
[G B SHAH, J.]
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