[ENTITY] Applicant(s)V/S[ENTITY] Respondent(s) R/CR.MA/18795/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18795 of 2012 In CRIMINAL APPEAL NO. 2039 of 2012 [ENTITY] Applicant(s) Versus [ENTITY] Respondent(s) Appearance: MR [ENTITY] for the Applicant(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 29/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE [ENTITY])
1. Feeling aggrieved and dissatisfied with the judgment and order dated 10.10.2012 passed by the learned 7th Additional Sessions Judge, Bhavnagar, Camp at Botad in [CASE NUMBER] whereby, the respondent-accused came to be acquitted for the offence punishable under [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT], the applicant-State of Gujarat has preferred this application to grant leave to appeal as provided under [SECTION] of the [ACT] (for short, the Code ) to challenge the impugned judgment on the grounds stated in the memo of appeal.
2. Briefly stated, it is the case of the complainant-victim that on 18.07.2011 at about 11:30 hrs. at night, the respondent-accused entered into the complainant s house and by causing grievous injuries to the complainant by stick and further, by threatening to commit her murder, the respondent-accused committed rape on the complainant forcibly without her consent and thereby, committed the aforesaid offence.
3. In pursuance to such complainant lodged by the complainant, Botad police station registered the offence vide [CASE NUMBER] and commenced the investigation. During the course of investigation, the Investigating Agency recorded statement of various witnesses and collected the relevant documentary evidence and after having found sufficient material/evidence against the respondent-accused, chargesheet came to be filed in the Court of the learned Judicial Magistrate First Class, Botad. As the said Court lacked jurisdiction to try the offence punishable under [SECTION] of the [ACT], it committed the case to the Sessions Court, Bhavnagar as provided under [SECTION] of the Code and since the incident in question took place at Botad, the said case was handed over to the learned Additional District and Sessions Judge, Bhavnagar, Camp at Botad. Upon committal of the case to the said Sessions Court, the learned trial Judge framed charge against the respondent-accused vide Exh.5 for the aforesaid offences. The respondent-accused pleaded not guilty and claimed to be tried.
4. In order to bring home charge, the prosecution has examined 11 witnesses and further, produced and proved various documentary evidence, more particularly, described in paragraph No.5 of the impugned judgment.
5. On conclusion of the trial, the learned Sessions Judge pointed out various incriminating circumstances appearing in the evidence to the respondent-accused so as to obtain his reply/answer to such incriminating circumstances as provided under [SECTION] of the Code. In the further statement, the respondent-accused denied each and every incriminating circumstances and further stated that false case is filed against him and he is innocent. After hearing both the sides and after analysis of evidence adduced by the prosecution before the trial Court, the respondent-accused came to be acquitted from the charge of offence framed against him.
6. We have minutely examined oral and documentary evidence adduced by the prosecution before the trial Court and we have heard the submissions of Mr.[ENTITY], learned A.P.P. appearing for the applicant-State. We have noticed that the alleged incident has occurred in the house of the complainant. It appears that the complainant is a married woman and at around 1:00 a.m. in the night, when the complainant s husband suddenly came at home, he found both the complainant and respondent-accused sleeping in naked position. It seems that the complainant s family and respondent-accused are knowing each other. On the date of incident, complainant s husband was not present at home but on his return at home at about 1:00 a.m. in the night, the complainant was compelled by her husband to file this complaint against the respondent-accused. It has also come on record that the complainant has filed the complaint for the offence punishable under [SECTION] against her husband in the Court of the learned Judicial Magistrate First Class, Botad. Not only that, when the respondent-accused moved bail application in the present case, the complainant has filed affidavit and pursis wherein, the complainant has stated in terms that she has called the respondent-accused at her home and she had intercourse with the respondent-accused at her own consent. Meaning thereby, the complainant is a consenting party and there was no force or pressure on the part of the respondent-accused. Additionally, the complainant while giving history before the Medical Officer, admitted that on the date of incident, the complainant has made a call to the respondent-accused through her mobile and thus, the respondent-accused was called by the complainant at her home in absence of her husband. In view of the evidence adduced before the trial Court, the learned trial Judge has rightly acquitted the respondent-accused from the charge of offence for which he was charged and tried. The learned A.P.P. could not point out any compelling reasons or grounds to interfere with the findings recorded by the learned trial Judge acquitting the respondent-accused from the charge of offence for which he was tried. On our re-appreciation and reassessment of evidence, we have not found any reasons or grounds to disturb findings recorded by the learned trial Judge and we endorsed the view taken by the learned trial Judge and thus, no case is made out to grant leave to appeal.
7. The appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Keeping in mind the evidence adduced by the trial Court and also settled principle as to scope of appeal against the acquittal order there are no good reasons to interfere with the findings of the trial court as there is no iota of evidence to infer that the respondent-accused has committed rape as alleged.
8. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. ([PRECEDENT]). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
9. In the case of [PRECEDENT], Supreme Court has held as under:
The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under [SECTION] and [SECTION], [ACT] are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
10. As observed by the Hon'ble Supreme Court in the case of [PRECEDENT] and in the case of [PRECEDENT], while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
11. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under [SECTION] of the [ACT], no case is made out to interfere with the impugned judgment and order of acquittal.
12. In view of the above and for the reasons stated above, present application for leave to appeal being [CASE NUMBER] fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, [CASE NUMBER] also deserves to be dismissed and is accordingly dismissed.
([ENTITY], J.) ([ENTITY], J.) Hitesh Page of 8