(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 The State of Gujarat has challenged the judgment and order dated 25.11.1992, passed by learned Additional Sessions Judge, Ahmedabad City, in Special Criminal Case No. 102 of 1992, by which the respondent–accused was acquitted from the charges under Sections 354, 376, 511 and 392 of the Indian Penal Code as well as under Section 3(1) (11) (12) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2 The brief facts of the prosecution case is that one Jeshiben, wife of Sureshbhai Dudhabhai, lodged a complaint on 23.5.1992 with Aslali Police Station and alleged against the respondent – accused that on the same day his husband had gone for his job and she had gone for masonry work and returned at about 5'O clock in the evening. Her minor daughter, aged about 10 years, along with his other son Manish, aged about 8 years and other boys and girls went at the residence of the respondent– accused which is situated near the house of the complainant to watch TV. At about 6'O clock in the evening, the respondent -accused called the children, except the minor daughter, to leave his house and shut the door of his house from inside. Her other sons - Narendra and Manish informed about the conduct of the respondent – accused and she immediately reached at the house of the respondent – accused. She found that the undergarment of her daughter was lying on the floor and the respondent – accused was wearing his clothes. On asking, her minor daughter told that the accused had removed her undergarment and after opening the chain of his pant, put his private part in the hands of the daughter. After getting this behaviour of the accused, she immediately lodged a complaint. The police authorities, after investigation, having found material against the accused, filed a charge sheet in the court of learned Special Judge, who proceeded with the trial. The charge was framed at Exhibit-4. The respondent – accused denied the charges levelled against him and claimed to be tried. After considering the depositions of six witnesses and perusing several documentary evidence, the Trial Court found that the prosecution has failed in establishing the case against the accused for which he was charged. Hence this Appeal.
3 We have heard learned APP Mr. Neeraj B.Soni, appearing for the appellant– State, however, learned Advocate Mr.
I.I. Shaikh, appearing for the respondent, has not remained present. We have decided the matter on merits with the help of learned APP Mr. Soni. Mr. Soni, learned APP, has submitted that considering the depositions of the complainant, the prosecutrix girl as well as her brother Narendra, the learned Trial Judge ought to have convicted the accused for the offences for which he was charged. He has further submitted that the prosecutrix has categorically deposed that the accused had misbehaved with her as stated by her to her mother. She further alleged that the accused had tried to make intercourse with her. Therefore, the reasons assigned for the acquittal of the accused are required to be reconsidered and the accused shall be convicted and sentenced accordingly for the offences levelled against him.
4 We have perused the record and proceedings of the case as well as the depositions of six witnesses. Now considering the deposition of the complainant Jeshiben, PW-1 Exhibit-11, it appears that there is much improvement in her version. She has deposed about intercourse which was not initially reported to the police when she lodged the FIR-Exhibit-12. She has improved his version by stating before the court that even the accused was not wearing his lungi and she is not clear whether the prosecutrix was wearing her clothes or not. Similarly, prosecutrix, who has been examined as PW-5 Exhibit-17, who is aged about 10 years, has stated that she is deposing before the court which has been taught by her mother. She has admitted that no such incident took place as alleged by her to her mother. Similar is the deposition of Narendra Sureshbhai, PW-6, Exhibit-18, who is brother of the prosecutrix, aged about 13 years. He says that his sister and the accused were not wearing the clothes, however, he has admitted in his cross-examination that he has informed about the incident to the police as per the say of his mother while giving the statement.
He has improved his version that the sister and accused were not wearing the clothes.
5 Now, if these depositions are considered, it appears that, the say of these witnesses create doubts and particularly in absence of any medical evidence which would establish that the prosecutrix was subjected to sexual harassment. The prosecution has not examined any Medical Officer, however, has relied upon the medical certificates of the prosecutrix and the accused at Exhibits 8, 9 and 10. These certificates do not establish any intercourse having been taken place between the prosecutrix as well as the accused person. Not a single injury is found on the person of prosecutrix or on her private part or on the person or private part of the accused.
6 It is well settled principle of law that the appellate court shall be reluctant to interfere with such judgment of acquittal unless the court found it contrary to evidence or palpably erroneous or the view which has been taken by the Trial Court, could not have been taken by the court of competent jurisdiction while dealing with the appeal against acquittal, the court keeps in view the position that the presumption of innocence in favour of the accused, has been fortified for its acquittal. The golden rule is that the court is obliged and may not abjure its duty to prevent miscarriage of justice where interference is imperative and the ends of justice was required and it is essential to appease the judicial conscience.
7 Considering the overall circumstances of the case, in our opinion, it cannot be said that the Trial Court has committed any error in recording acquittal of the respondent – accused. We are in agreement with the view taken by the Trial Court and do not deem it proper to interfere with the reasonings assigned by the Trial Court and the appeal must fail. Hence, the appeal stands dismissed accordingly.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair