(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal, under section 378 of the Code of Criminal Procedure, is directed against the judgment and order dated 05.07.1991 passed by the learned Addl. City Sessions Judge, Ahmedabad in Sessions Case No. 325 of 1990 for offences punishable under sections 366 and 376 of Indian Penal Code.
2. The facts of the case in brief are that the victim minor girl, aged about 12 years, residing with her parents at 35/3 Anand Flats, Bapunagar, Ahmedabad was kidnapped by the respondent-accused. The respondent-accused was also staying at 35/6 of the same flat with his wife. On 18.9.1990, the victim girl returned from the school at about 1.00 p.m., the accused was there near her house. The accused asked the victim to meet him near the water tank. The victim, after handing over the key of the house to her neighbour telling her that she is going to her friend's house for studying, went with the accused. The accused had taken the victim in an autorickshaw and went to Gita Mandir bus stand. From there they proceeded to Surat in a bus and they stayed in a Guest House situated opposite the Railway Station wherein the victim was subjected to sexual intercourse. In the morning they went to Shergaon , Nagjari, Amrawati etc. and returned to Surat. From Surat they left for Ahmedabad on 4.10.1990 by train and reached Ahmedabad at 3.00 p.m. The accused took the victim to Viratnagar in a rickshaw and went away. After returning to her home, the victim talked to her mother about everything that had taken place. The victim's date of birth was 24.12.1977.
2.1. It is the case of the prosecution that father of the victim lodged a complaint with regard to the incident at Bapunagar Police Station on 19.9.1990. Investigation was carried out by PSI, Bapunagar Police Station. Statements of the father, mother, and sister of the victim were recorded. Statement of the neighbour was also recorded. A search was made for the accused but he could not be traced. The victim was called at the police station and her statement was also recorded. The blood stained clothes worn by the victim were seized after making panchnama. Thereafter the victim was sent to Civil Hospital for medical check up. On 6.10.1990 it was learnt that the accused was admitted in Shardaben Hospital for treatment as he had tried to commit suicide and after discharge, he was taken to police station. His clothes were also seized after making panchnama and thereafter he was arrested. The accused was also sent to Civil Hospital for medical check up. Thereafter he was taken on remand for further investigation. The clothes of both, the victim and the accused were sent to Forensic Science Laboratory. Thereafter charge sheet was filed against the accused in the court of learned Chief Metropolitan Magistrate who committed the case to the Court of Sessions as the offences punishable under sections 363, 366 and 376 of Indian Penal Code are triable by a Court of Sessions.
3. The charge was framed at Exh.2 against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1. To prove the case, the following prosecution witnesses were examined - PW 1, the victim Exh.5, PW 2, Dr.Bela Tribhovanbhai Patel, Exh.6, PW 3 Kiritbhai Popatlal Patel, Exh.8, PW 4 Vishrambhai Sahdevbhai, Exh.10, PW 5 Manoramaben Vishrambhai, Exh.12, PW 6, Jagdishkumar Kalajibhai Patel, Exh.14, PW 7, Homjibhai Sanjaji, Exh.16, PW 8, Shobhaben Rameshchand Savarkar, Exh.19, PW 9, Makhansing Ramsingh Dabhi, Exh.21.
3.2. Besides the aforesaid oral evidence, documentary evidence such as Complaint Exh.17, panchnama Exh.20, FSL report Exh.25 etc. were also produced which were taken into consideration by the learned Addl. Sessions Judge.
4. After examining the prosecution witnesses, the learned Addl.Sessions Judge has recorded statements of the accused under section 313 of the Code of Criminal Procedure in which it is stated by the accused that in the past there was altercation between him and the victim's parents and therefore he went away from Ahmedabad. After two days when he returned to Ahmedabad, his wife informed him that victim had gone away but he did not know anything about her and according to him a false case is filed against him. After hearing the arguments of both the sides and after appreciating the evidence on record, the learned trial Judge has come to the conclusion that out of the three offences – sections 363, 366 and 376 for which the accused was charged, the prosecution has failed to establish that the offence of rape as defined under section 376 of IPC was committed by the accused. Similarly the offence under section 366 is also not proved. The accused was convicted for offence under section 363 of IPC and ordered to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/-, in default, to suffer further rigorous imprisonment for two months. The accused was acquitted of the offence under section 366 and 376 of IPC. Hence this appeal.
5. We have heard the learned APP for the appellant- State and learned Advocate Mr J M Buddhabhatti appearing for Mr Apurva A Dave for the respondent-accused.
5.1. Learned APP submitted that the learned Addl.Sessions Judge has committed error in not accepting the case of the prosecution that the accused who is married and father of one child, has committed offence under sections 366 and 376 of IPC and acquitting the accused. He submitted that the learned trial Judge ought to have held that the accused, with an intention to seduce or force the victim to have sexual intercourse, had taken the victim to several places and they stayed together in different hotels. He also submitted that the learned trial Judge also committed error in coming to the conclusion that, 'such allegations of intercourse cannot be treated as established or proved from the oral evidence of the victim'. The learned APP further submitted that this Appeal be allowed and appropriate order be passed in accordance with law.
6. Learned Advocates 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 the only evidence which could be relied upon by the court was the birth date mentioned in the school leaving certificate. The learned trial Judge, after considering the evidence on record including the medical evidence, came to the conclusion that the victim was minor when the incident took place but there is no evidence with regard to offence either under section 376 or 366 of IPC committed by the accused. The learned Advocate further submitted that this being an acquittal appeal, the judgment and order delivered by the trial court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. He finally submitted that the appeal be dismissed.
7. We have carefully gone through the impugned judgment and order in light of the oral as well as documentary evidence forthcoming on the record. Learned APP vehemently submitted that the victim minor girl has specifically deposed that the accused forced her to write a chit informing the parents that she is leaving the house and thereafter on 18.9.1990 she went near the water tank situated at Anand Flats as desired by the accused. From there the accused had forcefully taken the victim in an autorickshaw and went to Gita Mandir bus stand and from there she was taken to different places – Surat, Shergaon, Nagjari, Amrawati. From there they returned to Surat and then to Ahmedabad. She has also deposed that during the night at most of the places wherever they stayed, the respondent-accused undressed her as also himself and at times put on only shirt and used to lay down on her in a room for whole night but except that nothing was done by the respondent. The learned APP further submitted that the victim was about 12-13 years old and she may not be able to describe the act in clear words but the learned trial Judge ought to have held that the respondent-accused had seduced or forced her to illicit intercourse. It is the fact that except the Almighty and spiritual stalwarts, it is difficult for a normal man and a girl in undressed position lying on a cot in a room for whole night and still they control themselves not to have intercourse. However, judicial discipline demands that the court should consider only what is stated by the witness because it is not permissible for the courts to read between lines of the deposition of the victim and to infer something which will make out a case against the respondent-accused like in this case that she was subjected to illicit intercourse. Hence the submission made by the learned APP, prima facie, appears just, proper and attractive but in the eye of law, we are unable to accept the same without any further material on record on the said aspect.
7.1. Regarding the age of the victim, in para 15 of the judgment the learned Judge has, after detailed discussion, observed that 'he has no hesitation in coming to a conclusion that the “victim” was minor when the incident in question took place.'. Learned Advocate Mr J M Buddhbhatti has drawn our attention to the medical certificate dated 27.11.1990 issued by the Medical Officer, Civil Hospital, Ahmedabad at page No.37 of the paper book and submitted that the age of the victim was between 15 and 16½ years. After clinical and radiological examination, the Medical Officer has stated the age of the victim as above. In para 6 of her deposition, the victim has stated that she started getting her periods since one year prior to the date of the incident. Considering the developed genitals described by the Doctor after the physical check-up and considering the fact that as per the medical jurisprudence we can assess two years plus or minus and if we consider that aspect, the victim could be aged 18½ years as well at the time of the incident. It is a fact that as narrated in the closure purshis at Exh.27, the Doctor who had examined the victim and issued the above referred certificate at page No.37 had left the service and so in spite of several efforts being made by the prosecution, they could not serve the summons and so the said certificate at page No.37 referred above was not exhibited but the description of developed genitals have been narrated in the certificate at Exh.9 and in light of the above evidence forthcoming on the record and considering the way in which the victim had deposed, we can say that she was 18½ years old at the time of the incident.
8. Be that as it may, the learned trial Judge has recorded findings that the prosecution has failed to prove that the accused had committed offence under section 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.
9. 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.
9.1. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to 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.
10. In view of the aforesaid discussion, this appeal fails and is dismissed. The impugned judgment and order dated 05.7.1991 passed by the learned Addl. City Sessions Judge, Ahmedabad in Sessions Case No. 325 of 1990 are confirmed. Bail Bonds stand cancelled.
Office shall send back the Records & Proceedings to the trial court forthwith, after following the due procedure.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]