(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The State of Gujarat has preferred this appeal against the judgment dated 10.06.1994, rendered by City Sessions Court, Ahmedabad in Sessions Case No.199 of 1992, acquitting the respondent of charge of rape punishable under Section 376 of the Indian Penal Code.
2. As per the case of the prosecution, respondent raped the prosecutrix on 16.09.1991 at about 12.30 in block No.25/292, Baugh-e-Firdos police line, Division-2 in Hatkeshwar Society, Amraiwadi area of Ahmedabad by alluring her to go to that place, while she was playing. In this context, the FIR was lodged by the father of the prosecutrix-Ratansinh Vajesinh Jhala, on the basis of which, the investigation was made and ultimately, the charge-sheet was filed in the Court of Metropolitan Magistrate Court No.7, who in turn committed the case to the City Sessions Court and sessions case No.199 of 1992 came to be registered.
3. Charge was framed against the accused at Exh.1 for the offence punishable under Section 376 of the Indian Penal Code, to which he pleaded not guilty and claimed to be tried. At the end of the trial, City Sessions Court found that the prosecution has failed to prove the charge and therefore, recorded acquittal of the accused- respondent herein and hence, this appeal.
4. We have heard learned APP Mr.L.B.Dabhi and learned advocate Mr.Dhotre for the respondent.
5. We have also gone through the record and proceedings and we find that the prosecution has examined the prosecutrix, her father and her neighbour Maniben as witnesses, besides the doctors and the Investigating Officers.
5.1 The prosecutrix is examined as Prosecution Witness No.1 at Exh.1, where she states that on 16.09.1991, his father had gone to the job and her mother had gone to the village. She was playing with her younger sister-Daxa at about 12' o clock, when the respondent came and told her that he would give chocolates to her. The respondent was known to her, since he was staying in the same block. Thereafter, respondent took her in the house, made her to seat and then took her into the bath-room, after bolting the main door from inside. In the bath-room, respondent gave her fist blows and then he removed his trouser. The prosecutrix removed her under garments. The girl says that respondent gave her pushes near her private parts. As bleeding started, she started crying and then neighbors came. They were Savitaben, Samuben, Maniben etc. She said that her statement was recorded by the police and she had stated what had happened. She has been cross-examined, where she states that his father is serving in police department, he had taught her as to what is to be deposed in the Court. She admits that there were disputes between her father and father of the accused-respondent herein. It is also admitted that her house is surrounded by other houses, where police families are staying. She stated that she was taken to the hospital.
5.2 From the deposition of Ratansinh Vajesinh Jhala-father of the prosecutrix, who is examined at Exh.8, it transpires that when he came to know about the incident, he went home and again went back to his job, wherefrom, he was called again. Thereafter, he went home and lodged the FIR. He also admits that there are 12 buildings in the police line, where he lives and each room is occupied by the policemen, who stay with their families. He denies the suggestion of the dispute with father of the accused.
5.3 Witness Maniben is examined at Exh.10. She was cleaning utensils near her house and at that time, prosecutrix came out and she was bleeding. She further inquired of as to what happened and she was informed by the prosecutrix that the respondent had taken her in the bath-room and removed her undergarments and his trouser and had given her pushes. The witness has been cross- examined where she admits that she has not stated before police that on being asked again, she has been told by the prosecutrix about the accused having given pushes to her or about the accused having removed her undergarments and his trouser.
5.4 Dr.Chimanbhai Parmar is examined at Exh.11, who was approached alongwith the prosecutrix with the complaint of per vaginal bleeding and he had advised the prosecutrix to be taken to some specialist. The evidence of this doctor does not help anyone.
5.5 Second doctor, who is examined at Exh.32 is Dr.Virambhai Chaudhary. He states that the prosecutrix gave him history of accused having taken her to bath-room and made her to bleed. The doctor did not find any stains on her body, but, the patient gave history of cleaning the body. There were no marks of injury on the outer genital of the prosecutrix. Her vaginal swab was taken.
5.6 Dr.H.G.Panchal is examined at Exh.30, who examined the accused. He has found that there was absence of smegma, there was small injury on the front part of the penis and there were no marks on body or cloths. During the cross-examination, he has admitted that absence of smegma can be attributed to bath and presence of abrasion on pennis can be attributed to itching.
6. With the above evidence on record, trial Court found that the prosecution has failed to prove the charge against the accused, mainly for the reason that there is no corroboration to the evidence of prosecutrix. In our view, the Court was justified in looking for corroboration to the evidence of the prosecutrix, considering her tender age, likelihood of her being influenced by her father on her deposition and absence of any mark of any injury, particularly, on the genital.
7. The medical evidence indicates that the prosecutrix had no mark of injury on her genital. The accused had abrasion, which may be because of itching. There was history of previous animosity between the father of the accused and the father of the prosecutrix. Absence of smegma is possible if the accused had cleaned his organ, at the time of taking bath, as is stated by the doctor.
8. The evidence of Maniben is very relevant because she had met the prosecutrix soon after alleged incident. According to her, when she was cleaning utensils, she shaw the prosecutrix bleeding from per vagina and on her asking, the prosecutrix disclosed that the accused had taken her into the bath-room and given her pushes. Of course, this is a clear improvement as could be seen from the admission made by her in the cross-examination. She has not stated such facts while her statement was recorded by the police.
9. Considering the above pieces of evidence, the view taken by the trial Court does not seem to us the erroneous or too liberal. The view taken is not impossible one. There is no error committed by the trial Court nor can it be stated that the judgment is rendered on evidence, which is either not part of the record or not including the evidence, which is on record. In our view, therefore, no interference is called for in the judgment. The appeal, therefore, fails and stands dismissed.
[A.L.DAVE, J.] ..mitesh..
[A.J.DESAI, J.]