(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 Being aggrieved and dissatisfied with the judgment and order dated 20.3.1999 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur, in Sessions Case No. 29 of 1993, by which the respondent – accused was acquitted from the charge of Section-376 of the Indian Penal Code, the State of Gujarat has preferred this Appeal and challenged the acquittal order.
2 The brief facts of the prosecution case as under:
That one Amarben, wife of Balaji Thakor, lodged a complaint on 23.8.1992 and alleged that two days prior to lodging the complaint, the accused – Babuji Kanji Thakor, had committed rape on her when she had gone to her field for collecting grass. It was alleged that when she was in her filed, the accused came from behind and caught her hands and fell her down. Thereafter, the accused caught her both the hands and gagged her mouth and committed the offence of rape. On hearing her shouts, the owner of her adjacent field one Taraji Sagramji Thakor reached at the place where the offence was committed. After seeing Taraji, the accused ran away. She informed Taraji about the incident. She further narrated in her complaint that when the incident took place, one Jalaben also came there and she narrated the incident to her. It is her say in the complaint that thereafter she went to her home, but did not inform her husband about the same. Only after the intervention of some local persons, after two days of the incident, the complaint was lodged.
3 Pursuant to the complaint, the Police Officer started investigation and having found sufficient material against accused, filed charge sheet in the court of learned Judicial Magistrate, First Class, Shihori. Since the case was triable by Sessions Court, the same was committed in the court of learned Sessions Judge, Banaskantha at Palanpur. The charges which were framed by the Sessions Court were denied by the accused and, therefore, the trial proceeded further. The Trial Court after appreciating the evidence of the prosecutrix as well as witnesses and examining the documentary evidence, found that the accused is not guilty of having been committed the offence as alleged by the prosecution and acquitted him, as stated hereinabove.
4 The learned Additional Public Prosecutor Mr. L.B. Dabhi, appearing for the appellant–State of Gujarat, submitted that the learned Trial Judge has erred in not believing the prosecutrix on the ground that she had filed a complaint after about two days from the date of the incident. He further submitted that a married lady, aged about 40 years, having two children, would not like to put herself in an embarrassing position by alleging serious offence of rape against the accused. He further submitted that even though the witnesses, who immediately reached at the place of incident, have not supported the case of the prosecution case, the learned Trial Court should have relied upon the deposition of the prosecutrix and ought to have convicted the accused for the said offence.
5 On the other hand, learned Advocate Mr. Mehul Rathod, appearing for the respondent accused has opposed this appeal on several grounds. He submitted that, there is delay in filing the complaint without any justifiable reasons stated by her either in the FIR or in her deposition. He further submitted that the witnesses Taraji Sagramji Thakor and Jalaben, whose names were mentioned by the prosecutrix in her complaint that they have seen the occurrence of the offence, have not supported the case of the prosecution. He has further submitted that other circumstantial evidence like serological report of the Forensic Science Laboratory does not support the case of the prosecution and, therefore, the Trial Court was right in acquitting the respondent – accused.
6 We have heard learned Advocates appearing for the respective parties. We have examined the record and proceedings and have gone through the depositions of nine witnesses, who were examined by the prosecution, the medical certificate, serological report issued by the Forensic Science Laboratory as well as other documentary evidence, which have come on the record of the case. We have also gone through the deposition of the defence witness Deshlaji Balvantji Thakor, Exhibit-33.
7 Now considering the depositions of prosecutrix- Amarben, Exhibit-15, it appears that the incident took place at about 10'O clock in the morning when she had gone to her filed to fetch grass. As per her deposition, she says that the accused caught her both hands with his one hand and gagged her mouth with his other hand and committed the rape. She says that after commission of the offence when the accused got up, she made shouts and pursuant to that Taraji as well as Jalaben came at the place of incident and they saw the accused running away from the place of incident. She has deposed that she did not inform her husband about the incident for two days. She has further deposed that she was in her menstrual circle when the incident took place. In her cross-examination, it appears that, some disputes were going on between the group of the accused as well as the group of her husband.
8 Now considering the FSL report at Exhibit-31, it appears that, no bloodstains of the prosecutrix were found on the clothes of the accused. The dhoti which was discovered, no bloodstains were found of the prosecutrix. As per her own admission in her deposition, when the offence took place she was in her menstrual circle and, therefore, there are all chances of having some bloodstains on the clothes of the accused. Similarly, neither bloodstains nor sign of semen were found from the clothes of the prosecutrix.
9 Another aspect with regard to the disputes between the group of the accused as well as the group of her husband, it has come in the deposition of her husband, namely, Balaji Swarupji Thakor , PW-8, Exhibit-23 that one Jehaji had asked them to lodge a complaint and the complaint was lodge as per his advice and explained by him to the prosecutrix. It has also come in her cross- examination that an application was given against the accused as well as his uncle Mevaji Bhavanji, which was pending with the police station.
10 Now considering the deposition of the DW-1 Deshlaji Balvantji Thakor, Exhibit-33, he deposed that some election disputes were going on between the said two groups.
11 Another aspect about the medical evidence, we found that the Doctor has admitted in his deposition that the prosecutrix was in her menstrual circle when the incident took place and one small size sore was found on the right back side of the prosecutrix Now, considering the injuries, except the aforesaid injury, no abrasions are found on the person of the prosecutrix. If the incident would have occurred in the way which she has tried to explain, we are of the view that she should have sustained injuries like abrasions on the back since the place of incident suggests that the surface of the land is hard in nature.
8 Considering the overall circumstances of the case, we are of the opinion that the learned Trial Court has not committed any error in acquitting the accused person. We do not find any perversity in the reasons assigned by the Trial Judge in acquitting the respondent–accused from the charges levelled against him. The appeal, therefore, stands dismissed accordingly.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair