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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.H. VORA, SANDEEP N. BHATT, JJ.
State of Gujarat – Appellant
Versus
Nareshbhai Kalsingbhai Baria – Respondent
R/Criminal Misc. Application No. 18292 of 2021 in R/Criminal Appeal No. 1491 of 2021 and R/Criminal Appeal No. 1491 of 2021
Decided on : 25-01-2022
Indian Penal Code,1860 - Sections 363, 366, 376(N) - POCSO Act - Sections 3 and 4 - Code of Criminal Procedure, 1973 - Section 378(1)(3) – Offence of Rape – Kidnapping,abducting or inducing women - Charged - Complainant, District filed complaint on with Police Station against respondent accused for offence under sections 363, 366, 376(N) of IPC and under section 3 and 4 of POCSO Act. According to complainant, on due to Holy Festival, his minor daughter and son went to fair at about 10.00 in morning - Complainant and his wife were at home. At about 5.00 pm, complainant's son viz. came home and informed complainant that about 3.00 in noon, respondent caught hand of his sister and went towards Piplod road and though he chased them, but due to huge public in fair, he could not find them - Thereafter, complainant started to search his daughter but could not find and as his in-laws house was at village, he informed them and talked them to search his daughter - According to complainant, the respondent accused abducted his daughter from his legal guardianship by luring and tempting for purpose of marriage and, complaint came to be registered - Held, It is further observed that High Court's interference in such appeal in somewhat circumscribed and if view taken by learned trial Court is possible on evidence, High Court should stay its hands and not interfere in matter in belief that if it had been trial Court, it might have taken a different view - Facts and circumstances of case and law laid down by Hon'ble Supreme Court while considering scope of appeal under Section 378 of Code of Criminal Procedure, no case is made out to interfere with impugned judgment and order of acquittal - In view of above and for reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed - In view of dismissal of application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.
JUDGMENT :
S.H. VORA, J.
1. Feeling aggrieved and dissatisfied with the judgment and order dated 28.09.2018 passed by the learned 2nd Additional Sessions and Special Judge, Dahod at Limkheda in Special Case (POCSO) No. 3 of 2018 for the offences under sections 363, 366, 376(N) of IPC and also under sections 3 and 4 of POCSO Act, whereby the respondent accused is acquitted from the aforesaid offence, the applicant-State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. Short facts of the prosecution case is such that complainant viz. Shri Rameshbhai Pratapbhai Baria, resident of Chundadi Kadai Faliyu, Taluka, Limkheda, District Dahod filed complaint on 22.08.2014 with Randhikpur Police Station against the respondent accused for the offence under sections 363, 366, 376(N) of IPC and under section 3 and 4 of POCSO Act. According to the complainant, on 17.03.2014 due to Holy Festival, his minor daughter and son went to fair at about 10.00 in the morning. The complainant and his wife were at home. At about 5.00 pm, complainant's son viz. Shri Nilesh came home and informed the complainant that about 3.00 in the noon, respondent caught hand of his sister and went towards Piplod road and though he chased them, but due to huge public in the fair, he could not find them. Thereafter, the complainant started to search his daughter but could not find and as his in-laws house was at Pipaliya village, he informed them and talked them to search his daughter. Thus, according to the complainant, the respondent accused abducted his daughter from his legal guardianship by luring and tempting for the purpose of marriage and therefore, complaint came to be registered as I-C.R. No. 14 of 2014 for the aforesaid offence.
3. In pursuance of the complaint lodged by the complainant against the respondent accused, investigating agency recorded statements of the witnesses and collected relevant evidence by drawing various panchnama and also collected medical and FSL evidence for the purpose of proving the crime. After having found material against the respondent accused, charge-sheet came to be filed before the Special Court. Learned Trial Judge framed charge against the respondent accused at Exh. 6 for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried.
4. In order to bring home charge, the prosecution has adduced following evidence:-
| PW | Name of witness | Exh. | Evidence |
| 1 | Rameshbhai Pratapbhai Baria-Complainant | 10 | He has produced Complaint Exh. 11 and identified his signature. He has also produced School Leave Certificate of prosecutrix at Exh. 12. |
| 2 | Shardaben Rameshbhai Baria-witness | 13 |
|
| 3 | Victim | 14 | She has proved her statement u/s. 164 of Cr.P.C. at Exh. 15. |
| 4 | Kulsingbhai Chhaganbhai Patel-Panch witness | 18 | He has produced the Muddamal Panchanama at Exh. 19 and identified his signature. He has also produced the Receipt of the Muddamal Panchanama at Exh. 20 and identified his signature. |
| 5 | Navratbhai Punabhai Baria-Panch witness | 21 | He has produced the Muddamal Panchanama at Exh. 22 and identified his signature. He has also produced the Receipt of the Muddamal Panchanama at Exh. 23 and identified his signature. |
| 6 | Nileshbhai Rameshbhai Baria-Witness | 34 |
|
| 7 | Dr. Shri Dhruvkumar Jitendrakumar Parmar | 25 | He has produced the Police Yadi at Exh. 26. He has also produced Refer memo for Gynecologist at Exh. 27. He has also produced the case papers at Exh. 28. He has also produced the opinion of radiologist at Exh. 29. He has produced police yaadi at Exh. 30. He has pro |
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