State Of Gujarat vs Vs Jamiyatkhan Mohmedkhan Baloch & Ors

Ilesh J. Vora, J

Here is the appeal by the State against the judgment and order of acquittal.

Being aggrieved and dissatisfied by the judgment and order dated 26.06.2009 passed by the learned Special Judge (Atrocity Court), Gandhinagar in Special (Atrocity) Case no. 8 of 2009, acquitting the respondents – original accused nos.2 to 4 from the offences Sections 363, 366 and 376 read with Section 114 of the Indian Penal Code, 1860 (‘IPC’, for short) and Section 3(2)(5) the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘Atrocity Act’, for short), the State has preferred instant appeal under Section 378 of the Code of Criminal Procedure, 1973 (old) (‘Cr.P.C.’ for short).

This Court has heard Mr.L.B. Dabhi, learned APP for and on behalf of the appellant – State. Despite of service of notice, respondents original accused have chosen to remain absent.

Facts and circumstances giving rise to file the present appeal are as under:

The respondents original accused nos.2 to 4 were charged and tried for the offence punishable under Sections 363, 366, 376 read with Section 114 of the IPC and Section 3(2)(V) of the Atrocities Act. The principal accused Munavarkhan Sipai has been convicted and sentenced for the offence punishable under Section 376 of the IPC and acquitted for the offence punishable under the provisions of the Atrocities Act. So far as respondents accused are concerned, they were arraigned as accused because in the commission of offence of abduction, they had aided and abetted the principal accused. The victim below 16 years of age fell in love with the principal accused Munavarkhan, who used to sit in the shop nearby the house of the victim at Gandhinagar. On 14.11.2008, the victim ran away with the principal accused and was remained in the company of the accused for about one month and ten days. On filing the complaint by the father, the police was in search of the victim, and accordingly, she was found by the police. It is alleged that the minor victim was lured by the principal accused and under the guise of promise to marry, she was sexually abused by him. So far as respondents accused are concerned, it is alleged that when victim left her house, accused Azruddin had accompanied the principal accused and traveled with them in auto rickshaw. So far as accused Haresh Dantani is concerned, it is alleged that he handed over the travel bag to the accused. On this premise, the respondents accused, on the charge of abetment in commission of the offence of abduction and rape were chargesheeted.

On the basis of material on record, the charge was framed against the respondents, to which the respondents pleaded not guilty and therefore, they came to be tried by the trial Court, accordingly.

In order to prove the case against the respondents, prosecution has examined 15 witnesses and exhibited 7 documents in support of its case as per the following table:

Oral evidence

PW 1 – Exh. 13

Dr. Bharatkumar Kalidas Solanki, medical officer

PW 2 – Exh. 21

Shyamabhai Madhabhai Chavda, complainant

PW 3 – Exh. 25

Jyotsnaben Shyamabhai Chavda, victim

PW 4 – Exh. 26

Urmilaben Shyamabhai Chavda

PW 5 – Exh. 27

Prahladbhai Khodabhai Parmar, panch witness

PW 6 – Exh. 29

Kamleshbhai Lakshmanbhai Parmar, panch witness

PW 7 – Exh. 34

Shaileshkumar Jagabhai Chavda

PW 8 – Exh. 35

Nagarbhai Mohanbhai Chavda, panch witness

PW 9 – Exh. 38

Jayeshbhai Shyamabhai Chavda

PW 10 – Exh. 39

Jyotiben Chandulal Trivedi

PW 11 – Exh. 41

Vasantbhai Laljibhai Jadav

PW 12 – Exh. 43

Jashvantbhai Gangubhai Patel, head constable

PW 13 – Exh. 44

Gunvantbhai Harkhabhai Algotar, Police inspector

PW 14 – Exh. 46

Pravinkumar Ambalal Rathod, Police Station officer

PW 15 – Exh.

Bakulbhai Haribhai Gameti, investigating officer

Documentary evidence

Exh. 22

Complaint

Exh. 45

Wireless message

Exh. 23

Photocopy of Caste certificate of complainant

Exh. 24

Caste certificate of victim

Exh. 33

Panchanama of recovery of clothes of original accused no. 1 and victim

Exh. 18

Medical certificate of original accused no. 1

Exh. 14

Medical certificate of victim

The respondents upon being questioned under Section 313 of the CrPC with regard to incriminating circumstances made against them in the evidence rendered by the prosecution and they denied it and and not lead any evidence in defence.

The learned Trial Court after appreciating and examining the oral as well as documentary evidence, arrived at a conclusion that the participation of the respondents accused as an abettor has not been proved by the prosecution by adducing cogent, credible and reliable evidence and accordingly, the respondents accused have been acquitted from all charges.

In view of the aforesaid facts and circumstances, the State is before this Court by way of present appeal under Section 378 of the Cr.P.C.

Mr.L.B. Dabhi, learned Additional Public Prosecutor appearing for and on behalf of the State, assailing the judgment and order of acquittal has submitted that when the victim on the day of incident, called by the principal accused, the respondents accused were there in the auto rickshaw and their presence at the scene of offence established by the oral as well as documentary evidence, and therefore, their conduct would indicative of the facts that in order to commit the said offence, they aided and abetted the principal accused. Thus, the findings of acquittal are not based on the appreciation of the evidence and despite of sufficient material to hold the accused guilty, the learned Trial Court, ignoring the evidence, acquitted the respondents accused, which has resulted into miscarriage of justice and findings seem to be perverse and against the evidence on record.

In view of the aforesaid submissions, learned APP would urge that the appeal be allowed and impugned judgment and order of acquittal may be quashed and set aside.

On the other hand, the respondents accused, despite of service of notice upon them, they chosen to remain absent throughout the proceedings.

In the instant case, victim PW:3 Exh.25 was examined before the Trial Court. She, in her evidence, alleged against the principal accused about his act and abduction and sexual abused. So far as respondents accused are concerned, nothing being alleged by her that they had abetted the principal accused in commission of the offence of kidnapping and abduction. The parents PW:2 Shyamabhai Chavda and PW:4 Urmilaben Chavda were not present at the time of incident and naturally, they did not have any knowledge about the role attributed to the respondents accused. PW:9 Jayeshbhai Chavda being a brother of the victim, was testified as at the relevant time, he was present at the house. The said witness Jayeshbhai did not utter words about the alleged act of kidnapping and abduction allegedly abetted and aided by the respondents accused.

In view of the aforesaid oral evidence, the learned Trial Court arrived at a conclusion that the charge against the respondents accused for the abetment of offence under Sections 363 and 366 of the IPC have not been proved and established. After re-analysis of the entire evidence of the prosecution case, we do not find any material, pointing guilt of the respondents accused for the act of abetment in commission of the offence punishable under Sections 363 and 366 of the IPC. Therefore, the view taken by the Trial Court is reasonable one and conclusion reached by the Court based on the material on record and the same cannot be said to be perverse and contrary to the evidence on record and thus, we found no reason to interfere with the judgment and order of acquittal.

For the reasons recorded, the acquittal appeal stands dismissed and is hereby dismissed.