(Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two appeals arise out of the judgment and order rendered by Sessions Court, Surendranagar in Sessions Case No.10 of 2006 on 28/07/2006. The appellants in these appeals were accused Nos.1 and 2 before the trial Court. They were charged for the offences punishable under Section 363 read with Section 114 and under Sections 366, 376 and 506 (2) read with Section 114 of the Indian Penal Code and came to be convicted therefor.
2. According to the prosecution case, appellant-Bhupatbhai was working as a labourer in a coal mine alongwith the prosecutrix and he committed rape on the prosecutrix in the mine itself, when there was no one else present in the mine. As per the prosecution case, this resulted into vaginal bleeding of the prosecutrix. Her clothes were also stained with blood and she went to home in the same condition, but she did not tell anyone about the incident and she washed her clothes as well. It is further the case of prosecution that appellant - Bhupat repetitively had forced intercourse with the prosecutrix against her wish. According to the prosecution, the appellant - Bhupat committed such an act in hut belonging to the accused No.2 - Ratuben, when there were other persons present. The prosecutrix moved with the appellant at several places on motorcycle as well as by public transport and during that time also the prosecutrix did not make any complaint to anyone. However, the prosecutrix lodged an FIR with Thangadh Police Station on 27/10/2005, narrating the above facts. On basis of the FIR, offence was registered and investigated and, ultimately charge-sheet was filed in the Court of learned JMFC, Chotila, who in turn, committed the case to the Court of Sessions and Sessions Case No.10 of 2006 came to be registered. Charge was framed against the accused persons at Exh.5 to which both the accused persons pleaded not guilty and came to be tried. The trial Court by the judgment and order referred herein above convicted both the accused persons and sentenced as under:
Offence Sentence Under Section 363 read with Section 114 of the IPC.
Both the accused to undergo three years RI and to pay a fine of Rs.1,000/- in default to undergo three months RI.
Under Section 366 of the IPC.
Both the accused to undergo three years RI and to pay a fine of Rs.500/- in default to undergo one month RI.
Under Section 376 of the IPC.
So far as org. accused No.1 is concerned, to undergo ten years RI and to pay a fine of Rs.2,500/- in default to undergo six months RI.
Whereas org. accused No.2 to undergo five years RI and to pay a fine of Rs.1,500/- in default to undergo three months RI.
Under Section 506 (2) read with Section 114 of the IPC.
Both the accused to undergo two years RI and to pay a fine of Rs.500/- in default to undergo one month RI.
3. Learned Advocate Mr.Mrudul Barot, represents appellant - Bhupatbhai; whereas, Mr.Chauhan, represents appellant - Ratuben. The State is represented by learned APP, Ms.C M Shah.
4. Learned Advocate Mr.Barot submitted that though apparently it may appear that the prosecutrix supports the prosecution case and denies the suggestion of she being a consenting party to the offences, if the evidence led by the prosecution is seen as a whole, it would show that the evidence of prosecution does not prove the guilt of the accused - Bhupat to the hilt. Mr.Barot submitted that evidence regarding age of the prosecutrix is not certain. The birth certificate is not on record and the ossification test indicates that the age of the prosecutrix would be between 17 to 19 years, although the parents and prosecutrix claimed that age of the prosecutrix was 13 to 16 years and, therefore, the consent of the prosecutrix would be a relevant factor.
4.1 Mr.Barot, submitted that following aspects would render the prosecution case susceptible to doubt.
No marks of injury on person of the accused as well as victim.
Victim does not complaint of the alleged acts to anyone for longtime for four months almost.
Girl admits to have moved with the accused at several places. She does not raise any cry for help.
Girl alleges rape in house of her aunt where several other persons were sleeping in the same hut.
She goes at home after the first act with blood stained clothes and washed clothes. She did not tell to anybody neither anyone asked her.
4.2 These are the factors that would raise doubt that she may be the consenting party. That falsity of defence cannot be used for strengthening the prosecution case and that is to be examined only after it is found that prosecution has proved the case beyond reasonable doubt.
4.3 Mr.Barot submitted that the benefit of doubt when it is raised, would go to the accused and, therefore, the appeal may be allowed.
5. Mr.Chauhan submitted that appellant No.2 - Ratuben is alleged to have only aided or abetted the principal offender, but when the principal offence is not proved to the hilt, the benefit will flow to Ratuben as well. He submitted that both the appeals deserve to be allowed and conviction of the appellants be set aside.
6. The appeal is opposed to by learned APP.
6.1 Ms.Shah submitted that prosecutrix as a young girl was scarred because of intimidation administered to her by the principal accused and therefore, she could not raise any cry for help and that factor need not go against her. Similarly, accused - Ratuben facilitated the commission of offence by accused - Bhupat and, therefore, she has rightly been convicted for the serious offence and appeals may be dismissed.
7. So far as the age of the prosecutrix is concerned, it may be recorded, at the outset, that there is no infallible evidence brought on record by the prosecution. The certificate of registration of birth, if any, is not forming part of the record and it comes on record that the birth was not registered. The father of the prosecutrix - Sukhabhai Hamirbhai (Exh.14) in his deposition states that the age of prosecutrix was 13 years, but barring this word, he has nothing to support his say.
7.1 The prosecution has then relied upon medical evidence wherein Dr.Vijay Krishan (Exh.30) says that he had examined the prosecutrix and he found her age to be 16 years. However, there is also evidence of Dr.Ishwarbhai (Exh.39), who had performed ossification test, and according to him, the age of the prosecutrix was between 17 and 19 years. He has issued a certificate to that effect as well.
7.2 The resultant effect is that the prosecution has not been able to prove the exact age of the prosecutrix and there is a possibility of she being more than 16 years of age and even a major i.e. more than 18 years of age.
8. If with the above evidence, age of the prosecutrix is seen with other evidence, prosecutrix in her deposition (Exh.11) states that she was working with Bhupat in coal mine and they used to go together for the mining work. She states that on an occasion, when only two or more members were there, accused - Bhupat forcibly committed rape upon her while shutting her mouth with his palm. This resulted into vaginal bleeding and she went home with the same blood stained clothes. She did not complain anyone about the act committed by the accused - Bhupat, nor did anyone ask her about blood stained clothes and then she washed her clothes.
8.1 The prosecutrix then goes on to depose that similar act was committed repetitively by accused - Bhupat not only at mine, but at other places including the hut and at that time, there were other persons present in the hut during the night. At that point of time, she did not raise any cry for help. It also emerges from her evidence that she had moved with accused - Bhupat at different places in public transport as well and on motorcycle and she did not raise any shout for help at that time also.
9. It emerges from the evidence of mother of prosecutrix - Nathiben (Exh.13) that the terms of the prosecutrix with accused - Bhupat were good. This seems to be a polite way of admitting the relationship between Bhupat and the prosecutrix.
10. It is also to be noted that there is no evidence of any external injury marks on person of either - accused - Bhupat or the prosecutrix. If there was use of force, there would have been some marks of injury somewhere. It is true that injuries for the first act may not be found on person because of lapse of time, but the act is alleged to have continued for a long time of about four months and if there was no consent, there would have been some marks of resistance.
11. The above factors to our mind are good enough to render the prosecution case reasonably doubtful. Moment the prosecution story becomes doubtful, the benefit has to go to the accused. The appeals, therefore, deserve to be allowed. The prosecution has failed to prove the guilt of accused - Bhupat beyond reasonable doubt, so also, the alleged involvement of accused - Ratuben.
12. In the result, both the appeals are allowed. The judgment and order of conviction and sentence dated 28/07/2006 rendered in Sessions Case No. 10 of 2006 by the learned Additional Sessions Judge, Fast Track Court No.2, Surendranagar is hereby quashed and set aside. Both the appellants - org. accused are acquitted of all the charges levelled against them. Appellant of Criminal Appeal No.1699 of 2006 - Bhupatbhai Somabhai Saradiya-org. accused No.1 is ordered to be set at liberty forthwith, if not required in any other case. Appellant of Criminal Appeal No.1792 of 2006 - Smt. Ratuben w/o., Shri Kanabhai Devabhai is on bail, her bail bond shall stand cancelled. Fine, if any, paid by the appellants, is ordered to be refunded to them.
(A L DAVE, J.) (N V ANJARIA, J.) sompura Top