1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 12.1.2022 passed by the learned Additional Sessions Judge, Court No.26, City Civil Court, Ahmedabad in Sessions Case No.553 of 2017, whereby the respondent accused came to be acquitted for the offences punishable u/s 376 of the IPC, the appellant – original complainant has preferred present criminal appeal u/s 372 of the Code of Criminal Procedure, 1973 (for short “the Code”)

. 2. Briefly stated that the appellant – original complainant got divorce from her first husband in January, 2016 and thereafter, her marriage was solemnized with prosecution witness No.2, namely. That prior to five years, the aunt and uncle came to the house of the appellant to see the grandfather and when all were sleeping in night, the respondent accused physically assaulted the appellant. On the next day, the appellant, her aunt and others along with the accused went to sleep, at that time also, the respondent accused had forcefully established physical relationship with the appellant. During the stay of the respondent accused, he had again and again forcefully established physical relationship. That on account of fear and threat, the appellant did not inform anyone. When the appellant went to Mumbai, again the respondent accused used to establish forceful physical relationship. Thereafter, the complainant lodged the complaint with regard to the incident before Shaher Kotda Police Station, which was registered as I – C.R. No.134 of 2016 for the aforesaid offences.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant documentary evidence in form of medical evidence and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed against the respondent accused. Since the trial was exclusively triable by the Court of Sessions, vide committal order dated 10.4.2017, the case was committed to the Court of Sessions.

4. Thereafter, learned Sessions Judge framed charges against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 09 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 6 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned advocate Mr. Vicky Mehta appearing for the appellant – original complainant and have minutely examined the oral as well as documentary evidence placed on record by him.

8. At the outset, learned advocate for the appellant submits that the impugned judgment is unreasoned and has been passed without appreciating oral as well as documentary evidence. According to learned advocate for the appellant, the victim in terms deposed before the Court with regard to occurrence of the incident and still however, the learned Judge gave unnecessary emphasize to minor discrepancies appearing in the evidence of the prosecutrix and therefore, the present appeal deserves consideration for admission.

9. In order to appreciate the submission, we have gone through the impugned judgment and also oral and documentary evidence provided by learned advocate for the appellant. It is a matter of fact that there exists property dispute between the parties and there is a delay of 5 years in lodging the present FIR against the respondent accused. As far as material aspect of allegation is concerned, it is suffice to reproduce findings recorded by the learned Judge in para 18 of the impugned judgment, which reads as under:-

“18. On appreciating evidence of prosecutrix in the light of ratio laid down by Hon’ble Supreme with regard to ‘sterling witness’, it is to be seen that as far as first alleged incident of rape at the house of Bhaskarbhai is concerned, there is variation between her version and evidence of PW8 as discussed in preceding paragraph. Besides this, it is the prosecution story that accused continued to rape prosecutrix for about eight days at her residence however, it has surfaced in her cross-examination that her grandfather died on 31.05.2011 i.e. next day of the alleged incident after which they all went to Raipura, Rajasthan to perform his last rites. There is again a discrepancy in the evidence of prosecution as she has deposed to have been raped for about eight days after death of her grandfather even when the entire family went to Raipur for performing his last rites whereas, in complaint she has alleged to have been raped at her home during that time. Interestingly, the prosecutrix has admitted of not stating in her complaint any incident alleged to have taken place at Raipura where ladies and gents used to sleep in separate rooms, as admitted by her. It is beyond comprehension that she was continuously raped by accused for eight days even when the entire family was present. Further, she has admitted that fourteen to fifteen family members had come to see her grandfather and at that time she had cordial relations with PW8 and they used to share their problems with each other yet, the prosecutrix did not inform anyone for which the prosecution has come up with a submission that accused had threatened her with life however, no such allegation of threatening finds mention in her complaint. Hence, prosecution story with respect to first alleged incident of rape raises doubt in view of material omissions and contradictions as have cropped in testimony of prosecutrix.”

10. Apart from it, it is also the case of the prosecutrix that the respondent accused attempted rape to her sister when she had gone to Mumbai and for that PW 3 – sister of the prosecutrix is examined. We are surprised to find that said alleged incident took place prior to four years of lodgement of the impugned FIR, but no any complaint was filed nor reported such incident to anyone in the family. The learned Judge has noted material omissions and contradictions in the testimony of the prosecutrix and there is no any explanation with regard to delay of five years in registration of the impugned FIR. At the end, we found that the entire case has been created to settle the property dispute since we do not find any explanation for delay of five years in registration of the impugned FIR. Under the circumstances, the learned trial Judge has rightly acquitted the respondent accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

11. 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. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225) [LQ/SC/1996/924] . 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.

12. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280 [LQ/SC/1994/976] , 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 Sections 378 and 379, Cr.P.C. 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."

13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 [LQ/SC/2011/439] and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, [LQ/SC/2011/662] 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.

14. 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 372 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

15. In view of the above and for the reasons stated above, present criminal appeal fails and same deserves to be dismissed and is according dismissed.