(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 The State of Gujarat has challenged the judgment and order dated 12.11.1992 passed by learned Sessions Judge, Junagadh, in Sessions Case No. 174 of 1991, by which the respondent– accused was acquitted from the charges under Sections 363, 366 and 376 of the Indian Penal Code. Though Leave to Appeal was granted way back in the year 1994 and notice of admission has already been served to respondent–accused, he has chosen not to remain personally present or through his Advocate. However, with the help of learned Additional Public Prosecutor Mr. Neeraj Soni, we have decided the matter on merits after examining the record and proceedings of the case as well as after perusing the depositions of several witnesses and documentary evidence produced and proved by the prosecution before the Trial Court.
2 The brief facts of the prosecution case as under:
That one Babulal Gangji Vanand lodged a complaint on 25.7.1991 with Mendrada Police Station against the present respondent alleging that his minor daughter, aged bout 17 years and 3 months, was missing since 22.7.1991. Pursuant to which, a report was already made to the police about the same. Though, he tried for finding out his daughter, she was not found, but he came to know on 25.7.1991 itself that the accused had kidnapped his minor daughter and both of them were arrested by Mendrada Police. It was further alleged in the FIR that the respondent- accused had abducted his minor daughter with an intention to marry his daughter. Pursuant to the complaint lodged by Babulal, the police personnel investigated the same and having found sufficient material against the accused, filed a charge sheet before the competent court, who in turn, committed the case to the learned Sessions Court at Junagadh. The charge framed by the Sessions Court at Exhibit-1 was denied by the accused and prayed for trial. The learned Sessions Judge after perusing the depositions of about 10 witnesses examined by the prosecution and considering the documentary evidence produced on record, found the respondent - accused not having been committed the offences for which he was charged and acquitted him, as stated here-in-above. Hence, this appeal.
3 Learned APP Mr. Neeraj Soni, appearing for the appellant– State, has taken us through the record and proceedings of the case and depositions of witnesses and submitted that the learned Sessions Judge ought to have relied upon the deposition of the prosecutrix, who has been examined as PW-2 at Exhibit-15. He has submitted that the prosecution was successful in establishing the case against the accused since the prosecutrix was below 18 years of age. It was submitted by Mr. Soni that the prosecutrix has deposed that she was compelled by the accused to go with him in a rickshaw at his cousin sister's house at Junagadh. She was then taken to an office of a lawyer where she put her signature on some stamp papers. She stayed at Junagadh with respondent – accused at a residence of his cousin and left on 23.7.1991 and reached at Keshod where another sister of the accused was residing. She stayed at that place on 23.7.1991 and left Keshod on 24.7.1991 and reached at the residence of his uncle at Devagadh. At Devagadh, the police came and arrested her along with the accused and brought to Mendrada Police Station where the complaint was lodged. It was further argued by Mr. Soni, learned APP, that the medical evidence does support the case of the prosecution and Medical Officer–Dr. Vitthalbhai Panchand Siddhpara, PW-1, Exhibit-12, has supported the case of the prosecution and, therefore, also the acquittal recorded by the Trial Court is required to be set aside and the respondent-accused be convicted and sentenced accordingly.
4 Now considering the deposition of the prosecutrix , it appears that she has categorically stated in her deposition that the respondent-accused had not committed rape on her or any intercourse took place between them either on 22.7.1991 at Junagadh or on 23.7.1991 at Keshod or on 24.7.1991 at village Devagadh. However, she has stated that when she left Keshod for village Devagadh, near village Kumbaravada, she was subjected to rape by the accused against her will by showing a knife. Though she has not completely supported the case of the prosecution, permission was granted by the Sessions Court to put certain questions by Public Prosecutor without declaring this witness as a hostile witness. Pursuant to the questions put by Public Prosecutor, she has made improvements in her versions by deposing that the accused committed rape at the residence of his cousin sister at Keshod. It was alleged by the prosecutrix in her deposition that when she was standing near her school in the recess time, the accused threatened her and compelled her to sit in the rickshaw from where she had gone to the residence of the cousin of the respondent–accused. Now, considering the deposition of the Investigating Officer i.e. PI Mr. Vishnuprasad Chunilal Pathak, PW- 10, Exhibit-30, it appears that she has improved herself by stating that the accused had threatened her when she was going to school. Similar is the fact about the rape having been committed on 23.7.1991 near the theater which she has deposed in her improved version. She has also not stated before the police that at village Gathali, the accused had committed rape on her.
5 Now, considering the medical evidence, it appears that, no injuries were found either on the person of the prosecutrix or of the accused and very old hymen rupture was found on the private part of the prosecutrix. Though, the Doctor has stated that there are possibilities of intercourse having been taken place within last 24 to 36 hours, we are unable to accept the say of the prosecutrix that she was subjected to rape against her will. Having remained in company with the respondent–accused and having sufficient opportunity to run away, the conduct of the prosecutrix moving from one place to another place in the company of the respondent – accused creates doubts about the allegations made against the respondent – 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 In our opinion, the learned Trial Court was right in acquitting the respondent–accused from the charges levelled against him looking to the conduct of the prosecutrix and in absence of sufficient corroborative materials. 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