STATE OF GUJARAT - Applicant(s) Versus MO.
SAGIR MO. ABJAL HASAN ANSARI - Respondent(s) ========================================================= Appearance :
MR KP RAVAL, APP for Applicant(s) : 1, None for Respondent(s) :
1, ========================================================= CORAM :
HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 10/11/2011 ORAL COMMON ORDER :
(Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. The applicant - appellant - State has filed this application seeking leave to prefer acquittal appeal challenging impugned judgment and order dated 16/3/2011 rendered by Ld. Addl. Sessions Judge, F.T.C., Surat, in Sessions Case No. 166/2009, whereby the respondent herein, who was original accused in the said case, came to be acquitted of the offences punishable under sections 363, 366 and 376 of the Indian Penal Code [IPC].
2. Mr.
KP Raval, Ld. APP, for the applicant - appellant - State submitted that before the trial Court, the prosecution examined 15 witnesses and produced relevant documents, yet the trial Court erred in not properly appreciating the evidence on record and acquitted the accused. He submitted that the evidence of the prosecutrix is duly supported by the medical evidence on record and even it has been proved that at the time of the incident, she was minor. It is, therefore, submitted that the leave to prefer acquittal appeal may be granted and the appeal may be admitted.
2.1. Mr.
Raval, Ld. APP supplied relevant papers containing the evidence for our perusal.
3. Examining the impugned judgment and order rendered by the trial Court, so also the relevant papers containing the evidence adduced by the prosecution before the trial Court, it appears that there is no dispute that at the time of the incident, the prosecutrix was aged about 16 years and 11 months. Thus, she was not under 16 years of age. According to the prosecution case, the prosecutrix was at the relevant time residing with her maternal uncle and maternal aunt and it is alleged that she was kidnapped by the accused and was taken to different places and was raped. Before the trial Court, the prosecution examined 15 witnesses including the prosecutrix and relied upon relevant documents. The prosecutrix though in her deposition stated that the accused kidnapped her, but it is duly revealed that both, the accused and the prosecutrix moved to different places together. It further transpires and even rightly observed by the trial Court that during the period the prosecutrix stayed with the accused, she had ample opportunity to escape from the custody of the accused and to shout for help, but nothing whatsoever was done. Considering the deposition of the prosecutrix together with her friend Sonalben Vinodbhai, it further transpires that even prior to the incident, both, the prosecutrix and the accused were knowing each other and they were in love. Considering the medical evidence and more particularly perusing the evidence of Dr. Bhatiya, it transpires that in the history given by the prosecutrix to the Medical Officer, she stated that she was in love with the accused and they both had decided to leave their home and to run away. The trial Court further observed that even the evidence regarding the age adduced by the prosecution was shaky and there was reason to believe that she was major. The trial Court, in the impugned judgment and order elaborately discussed the oral and documentary evidence adduced by the prosecution.
3. Seen in the above context, we do not find any reason to interfere with the order of acquittal recorded by the trial Court. It is well established that if two views are possible, one leading to the guilt of the accused and another leading to the innocence of the accused, the view leading to the innocence of the accused is required to be accepted The application seeking leave to prefer acquittal appeal and the appeal deserve dismissal as the appeal lacks merits.
4. For the foregoing reasons, the application seeking leave to prefer appeal and the appeal stand dismissed.
(D.H.WAGHELA, J.) (J.C.UPADHYAYA, J.) * Pansala.
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