(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 State of Gujarat, by way of this Appeal, has challenged the judgment and order dated 24.12.1993, passed by learned Additional Sessions Judge, Jamnagar, in Sessions Case No.21 of 1992, by which the respondent–accused was acquitted from the charges levelled against him under Section 376 and 506(2) of the Indian Penal Code.
2 The brief facts of the prosecution case as under:
That Labhuben Danabhai, lodged a complaint on 18.9.1990 at 19.15 hours with Lalpur Police Station of Jamnagar District alleging against the respondent accused that when she had gone for her natures call at 8.0'O clock in the morning on 18.9.1990, the accused came there and against her will he committed rape and thereafter gave threats not to disclose the same to anybody otherwise she will be done to death. Pursuant to the complaint, the Police Officer started investigation and after having found sufficient material against the accused, filed a charge sheet in the court of learned Judicial Magistrate, First Class, Lalpur, who in turn committed the case in the Court of Sessions at Jamnagar, for trial. The charge, which was framed against the respondent–accused at Exhibit-4, was denied by the accused and, therefore,the learned Trial Judge proceeded with the trial. The prosecution examined 11 witnesses including prosecutrix as well as Doctors and Police Officer. The learned Additional Sessions Judge, after appreciating the deposition of the prosecutrix as well as after examining the medical evidence, found that the prosecution has failed in establishing the charges levelled against the accused and therefore acquitted the accused.
3 Heard learned APP Mr. L.B. Dabhi for the appellant – State and M.J. Buddhbhatti for the respondent.
4 The learned APP Mr.L.B. Dabhi, appearing for the appellant–State, has assailed the judgment of the Trial Court mainly on the ground that the learned Trial Court ought to have accepted the deposition of the prosecutrix Labhuben Danabhai PW-1 Exhibit-8, who has categorically deposed before the court the entire incident of committing rape on her. She has specifically stated that when she had gone for attending her natures call, the accused person came behind her and caught hold of her and put a cloth on her mouth. She tried to get freed from the accused, however, the accused did not let her go and gave a push, so she fell on the ground and thereafter he committed rape on her. After the said incident, she came back at her home and informed the said incident to her husband. Thereafter, she went to Jamnagar and gave an application to the Jamnagar Police Station. Since the offence took place within the territorial jurisdiction of Lalpur Police Station, a complaint was lodged at Lalpur Police Station at about 17.00hours. On the next day she was taken to Irwin Hospital, Jamnagar, where she was examined by the Doctor. History of rape was recorded by the Doctor. He further submitted that a married woman would not involve any person with such a serious offence of rape and therefor acquittal recorded by the Trial Court requires to be altered.
5 On the other hand, Mr. Buddhbhatti, learned Advocate for the respondent has supported the reasons assigned by the Trial Court while acquitting the accused. He submitted that in absence of any support evidence like medical evidence, FSL report etc., the Trial Court was right in acquitting the accused. He further submitted that the prosecutrix is a married woman who was examined on the next day by the Doctor who found no injury on her person. The conduct of prosecutrix in visiting several police stations and giving typed application about the incident creates doubts about her intention and therefor reasons recorded by the Trial Court for acquitting the accused do not call for any interference.
6 We have heard learned Advocates for the respective parties and have gone through the record and proceedings of the case. Prosecutrix Labhuben, PW-1, Exhibit-8, has supported the case of the prosecution. Now considering her cross-examination, she has categorically deposed that after committing the offence of rape on her, the accused ejaculated in her vagina. In her cross- examination, she admits that duration of intercourse was of about half an hour and after ejaculation, the accused left the place. She has stated that she had shouted but nobody came there. She has admitted in the cross-examination that she had not tried to give a kick or to pull the heirs of the accused or gave any bite for resistance. She has further admitted that though she fell on the ground she did not receive any injury.
7 Now considering the deposition of the prosecutrix and comparing the deposition of Dr. Jayeshkumar Gunvantrai Jhala, PW-11, Exhibit 43, who examined the prosecutrix, has stated that since the prosecutrix is a married woman and in absence of any injury sustained by her, it was difficult for him to opine that whether any rape has been committed on her or not. He has further deposed that the smear, which were collected from the vagina of the prosecutrix, were sent for FSL Report, in which no sperms were found. The Certificate at Exhibit-41, issued by Dr.Bhadresh Ramniklal Vyas, PW-10, Exhibit-10, it appears that, the accused person, who was examined by him on the next day of the incident, had no external injury.
8 Now considering the overall aspects of the matter and the way in which the entire incident has been described by prosecutrix, the Trial Court was right in not believing the prosecutrix in absence of any other cogent evidence like medical evidence or any sperms found from the smear which were collected from the prosecutrix. In our opinion, the conduct of the prosecutrix instead of approaching the nearest police station and going to Jamnagar District Police Station and giving a typed complaint against accused person creates a doubt in the mind of the court. In absence of any injury received either by the prosecutrix or by the accused person, it is risky to convict a person only on the allegation of rape. Therefore, we are of the view, the learned Trial Court has not committed any error in acquitting the respondent- accused.
9 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.
10 We do not find any perversity in the reasons assigned by the Trial Court 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