1. The present revisionist, the original complainant and the victim, being aggrieved by the order of the learned Additional Sessions Judge, 3rd Fast Track Court, Palanpur in Special Case No.88 of 2003 acquitting the accused from the charges of offence punishable under Sections 376, 506(2), 452 etc. of Indian Penal Code and under Section 3(2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ( hereinafter referred to as “the Atrocities Act”).
2. Brief facts necessary for the purpose of appreciating contagious issues raised before this Court are as follows:-
2.1 It is the case of the prosecution that on 31.3.2003 at 12.00 noon the present revisionist and complainant was alone in her house at village Jelana. While she was sleeping the accused awakened her and stared taking liberty with her. On protest, he took out a knife and threatened to kill her. Taking disadvantage of this loneliness, the accused committed sexual intercourse forcibly on her and thereby the offence of rape was committed.
2.2 A complaint was filed in respect of this incident at Sui Gam police station being C.R.No.-I-10 of 2003 on 1.4.2003. On due investigation the chargesheet was filed in the Court of Judicial Magistrate First Class at Banaskantha district and on committal this was numbered as Special Case No.88 of 2003 and the matter proceeded by the Additional Sessions Judge, 3rd Fast Track Court, Palanpur, where the prosecution examined 12 witnesses. On the basis of their depositions, various documents were accepted and after recording further statement of the accused under Section 313 of the Code of Criminal Procedure, a defence witness was examined by the advocate for the accused being Vihabhai Vanabhai Manver. On duly appreciating the submission of both the sides, learned Trial Court acquitted the accused from all the charges on the ground that the prosecution failed to prove these charges beyond reasonable doubt.
3. The impugned order and judgment are under challenge in the present revision by giving various reasons in the present revision application.
4. Learned advocate for the petitioner Mr. M.P.Prajapati fervently argued on the lines of the grounds proposed in the revision that the prime importance needs to be given to the deposition of the victim and once she had clearly and unambiguously stated against the accused even without any further corroboration as laid down in the provision as well as by the Courts, time and again, the offence of rape needs to have been held as proved. He lamented that the Court failed to appreciate that no lady of a good character would come forth so as to invite any blame on herself by filing a false complaint and her testimony is that of an injured witness. Learned Judge also failed to appreciate the deposition of other witnesses who corroborated overwhelmingly to the version of the prosecutrix.
Reliance was also placed on judgment of the Apex Court in the case of State of Punjab vs. Gurmit Singh reported in 1996 (2) SCC 384.
In the complaint late filing of the complaint has been well explained. There is an abbration on her face also. Semen was found on her petticoat and the blood group was matching with that of the accused and thus not only there was oral evidence but there is correspondingly matching medical evidence to support the version of prosecutrix. He also further argued that the prosecutrix belonged to the scheduled caste and the accused was from an upper caste. It is not unusual to express the contempt towards the caste of the prosecutrix by committing such offence.
5. Learned Additional Public Prosecutor Ms. C.M.Shah stated on behalf of the Government that no appeal has been filed against such acquittal. She, of course, assisted State Government while assisting the Court that the prosecutrix has spoken of such an incident having taken place. However, the reason why no appeal had been filed was on account of considering the Panchnama which had shown no injuries on the person of the prosecutrix as well as other evidence leading to suggest the motive for false complaint.
6. Learned advocate Mr. Tejas Barot appearing for the accused vehemently made submission and urged the Court that this evidence hardly calls for any interference.
7. He argued that on 31.3.2003 if the incident as per prosecutrix version took place in the afternoon she never revealed anything to her children, her mother-in-law or to her husband till he returned home at 10' clock in the night. Moreover, they never lodged a complaint even at night though the police station is not away by 3 kms. Not only there is no explanation to this delayed filing of complaint, there are 30 to 40 houses in the surrounding. Her own brother-in-law stays nearby and at no point of time she had raised an alarm against such an act of the accused. She was able bodied victim and her behavior appears to be strange that she would not telephone the relatives or contact the husband after the accused had left. Nothing is produced on her part and absence of injuries are other points which have been pressed into service. He also further argued that in immensely populated locality when such incident happened it is very unusual for the Court to believe when absolute there appears to be absence of any alarm.
8. He also had pointed out with regard to the motive for filing of the false complaint that there are two applications preferred in the months of January and February complaining against the black marketing of kerosene by the husband of the victim and, therefore this was nothing but a designed act on the part of the prosecutrix and her husband and therefore the Court should not interfere with the findings and the conclusions reached at by the Court below.
9. Having considered the submissions of both the sides and on having closely examined the depositions of witnesses along with the documentary evidence duly proved by the prosecution during the trial, contentions raised by both the sides are required to be addressed.
10. This revision since is filed against the order and judgment of the acquittal by the Additional Sessions Judge, Fast Track Court, at the outset, the decision of the Apex Court in the case of Sadashiv Ramrao Hadbe vs. State of Maharashtra and another reported in (2006) 10 SCC 92 with regard to evaluation of deposition of prosecutrix in a case where rape is alleged needs to be reproduced:-
“ It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”
11. It has been rightly pointed out by learned advocate Mr. Prajapati that generally when there is a direct evidence from the prosecutrix with regard to committal of act of sexual intercourse against her will, and thereby the commission of offence of rape, the prosecutrix is not to be disbelieved by adopting hyper-technical approach and by doubting the version given by her. Ordinarily the Court would not doubt such a version as it is a usual defence either to doubt and question the character of a lady or to impute the motive.
12. In such a background the evidence of prosecution is evaluated. The three aspects need to be closely dissected (1) late filing of the complaint (2) absence of injuries on the person of the prosecutrix and (3) dispute with regard to the fair price shop in the village.
13. Admittedly the incident took place on 31.3.2003 in the afternoon. As per the version of prosecutrix the children came back from the school and her mother-in-law also returned home at around 5 O' clock in the evening. Her brother-in-law lived nearby and it was only at night when the husband returned, complaint in respect of such an incident was filed before the police, which was made on the next day i.e. on 1.4.2003 at around 9 O' clock in the morning. Her medical examination was conducted the next day at 5:30 p.m.. The only injury which was stated to have happened on her face was, according to the doctor, 18 hours old whereas the incident which allegedly took place was nearly 29 hours before and therefore, it was concluded that the injury over the face was in post incident period. The reason for disbelieving the prosecutrix was not only the absence of injuries over her person but the fact that the accused was suffering from T.B. at an advanced stage and he was also disabled by his right hand. She denied to have noticed such physical infirmity of the accused and the reason for not raising the alarm was the threat given by him with the knife. The Court disbelieved this story mainly on the aspect that the lady was able bodied and she lived in a thickly populated area where people of her own caste stayed and her brother-in-law in particular was residing nearby. Cumulatively all these aspects have led the Court not to accept her version coupled with other details, which are to be discussed hereinafter.
14. At this stage it is necessary to reproduce the scope of revision when preferred under Section 397 read with Section 401 of the Code of Criminal Procedure, particularly in a matter where the Court acquitted the accused of all the offences. Judgment of the Apex Court in case of Johar and Ors. v. Mangal Prasad and Anr. reported in 2008 Cr.L.J. 1627 (SC) is vital for the said purpose.
15. This Court needs to be conscious of the fact that this is not an appeal which is being decided and, therefore, the reasonings given are not to be replaced by this Court's reasonings and it will need to be considered as to whether there is any material error leading to perversity. Keeping this issue in mind, what needs to be examined is whether the appreciation which led to the interpretation of the evidence adduced by the prosecution of the version of the prosecutrix was perverse as would lead this Court to hold the same as erroneous or perverse for which not only the evidence of the prosecutrix needs to be examined in isolation but other aspects also require careful consideration.
16. The conduct of the prosecutrix in the post incident period also was found intriguing after the accused had already left the premises. Trial Court disbelieved her conduct and version completely considering that she would be completely shaken up on account of such incident having happened on broad day light in absence of other members of the family and it would be a major cause of embarrassment for any woman, more particularly, for a lady who is married to continue to suffer this trauma of forceful act on the part of the accused, but, at the same time after his having left the place there was sufficient time available for her to regain her composure so as to contact the husband who was running fair price shop and there was also a facility of telephone and when the mother-in-law returned after attending to some social function at around 5'O Clock. Believing it for a moment that she was unable to confine to her considering the relationship, it would not be inconvenient for her to disclose those aspects to the husband and there was no reason for her to wait till 10 O' clock in the night when the husband returned home. Thereafter also when revealed they have chosen to approach the police station in the morning. Assuming again for the sake of giving benefit to such a conduct that it was too late in the night to approach the police station particularly with such shocking act having taken place as can be culled out from the cross-examination, this incident of coming to the nearby police station, which was much away than the one situated nearby even considering that not much significant. The Panchnama of the person of the prosecutrix which was drawn do not show any injury on the person. Believing it that for the moment that she was unable to resist on account of the threat given by the accused with the knife nowhere there is an explanation for non-collection of the sample of blood of prosecutrix's husband. Her petticoat and examination of the swab reflected presence of semen and the blood group of which matched with that of the accused. It needs to be noted here that the husband of the prosecutrix was a graduate and was running fair price shop in the village for many years. Neither the police asked for the same nor had it been asked by the complainant's side and, therefore, though there is a matching blood group of the accused in both the vaginal swab as well as on the petticoat of the prosecutrix, which was seized during the course of Panchnama, the Court below found it difficult to link such presence of semen with the act of committal of rape. Moreover, there is a total disbelief on the part of the Court to such a version of rape after the dispute with regard to fair price shop was brought clearly on record from the defence side.
17. The version put-forth by the defence is that there were two complaints already made by the accused to the Mamlatdar. This was in respect of black-marketing of kerosene sold in fair price shop of the husband of prosecutrix. Both the complaints were of the months of January and February as mentioned hereinabove. The insistence was for the raid of this shop in these applications. Another angle that has been brought out is that the husband of the prosecutrix also was having some infirmity and, therefore, he was entitled to the fair price shop in the quota of physically challenged person. Likewise, the accused with the defect in his right hand was eligible for the fair price shop and what has been argued is that there was a possibility of one of the shops being allotted to the accused under the category of physically challenged person. This being the apprehension, a false complaint was allegedly concocted.
18. It cannot be gainsaid that there are defects and loopholes in the versions put-forth by the prosecution and at the same time there are very strong grounds put-forth by the defence to base its defence on those short-comings. However, cumulatively, when examined the learned Sessions Judge has found the version of the prosecutrix in such circumstances unacceptable and not worth accepting, considering such evidence it will not be possible for this Court to hold that such an interpretation is not feasible from this evidence. It would not be also possible to hold this approach as completely erroneous or perverse so as to interfere with the findings of acquittal in this revision.
19. Under the circumstances, this revision cannot be allowed and the same, in the light of the aforesaid discussion, deserves to be rejected.
20. Ordinarily, no married woman would allege against any person and thereby invite trouble for herself as also the criticism from both caste and society. Generally, Criminal Courts are not to base its findings on the infirmities, loopholes and weaknesses of the case of the prosecution. In a matter of such a nature, where allegations of sexual harassment and sexual assaults are made at the same time, as mentioned hereinbefore, this Court shall have to record, whether considering the scope of revision, order of the trial Court can be interfered with. Overall examination of the entire evidence and the cumulative reading of the evidence presented by the prosecution will not permit this Court to interfere with the findings of trial Court where the reasons and findings given cannot be held as not plausible or impossible and conclusion was not on irrelevant consideration nor on not considering relevant materials.
21. With this, present revision is dismissed. No order as to costs.
(Ms. Sonia Gokani, J. ) sudhir