(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 State of Gujarat has challenged the judgment and order dated 30.11.1994 passed by learned Additional Sessions Judge, Mehsana, in Sessions Case No.170 of 1992, by which the respondent–accused was acquitted from the charge under Section 376 of the Indian Penal Code.
2 The brief facts of the prosecution case as under:
That one Pushpaben Nanjibhai lodged a complaint on 26.8.1991 with Bavlu Police Station against the respondent - accused alleging of having committed rape on her in a field situated at village Kukran, Taluka-Kadi, District Mehsana, at about 10.30 hours, when she had gone to attend her natures call. 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, Kadi, who in turn committed the case in the Court of Sessions at Mehsana. The charge, which was framed against the respondent– accused at Exhibit-6, was denied by the accused and, therefore, the learned Trial Judge proceeded with the trial. The prosecution examined four witnesses and produced several documentary evidence in support of the case. The learned Additional Sessions Judge, after appreciating the depositions of the witnesses as well as documentary evidence, came to the conclusion that the prosecution has failed in establishing its case beyond doubt and, therefore, the benefit should be given to the accused and therefore acquitted the accused from the charge of Section 376 of the IPC.
3 The learned APP Mr. Neeraj Soni, appearing for the appellant – State, assailed the judgment of the Trial Court on the ground that the prosecutrix has categorically deposed before the court that when she was attending her natures call, the accused person came behind her and caught hold of her and therefore she fell down on the ground and thereafter he committed rape on her against her wish and will. She immediately went to the place where her family members were doing the labour work and informed her father and thereafter the complaint was lodged. He has therefore submitted that looking to the conduct of the prosecutrix, the learned Trial Judge ought not to have acquitted the respondent - accused.
The learned APP has further submitted that, though, the Doctor has categorically stated that the hymen of the victim was intact, it cannot be said that, no penetration was done, as recorded by the Trial Court and that would not be a ground for acquitting the accused from the charge under Section 376 of the IPC.
4 Though the respondent has been served with the notice, neither he remained present himself nor engaged any Advocate or prayed for any legal aid. However, we have decided the matter with the help of learned APP.
5 We have gone through the record and proceedings and perused the depositions of the witnesses and the documentary evidence led by the prosecution before the Trial Court.
6 The prosecutrix, who has been examined as PW-3 at Exhibit-25, in her chief-examination, has stated that she did not know the name of the accused person, however, it appears from her deposition that subsequently she has given the name of the accused. The prosecutrix has given the name of the accused person in the FIR at Exhibit-28 lodged by her. It reveals from her cross-examination that she has categorically deposed before the court that she was not knowing the accused prior to the incident. She has also repeated the same thing that she did not know the accused person by his name. In addition to this, the peculiar facts and circumstances of the case which are discussed here-in-below, we would not like to accept the say of the prosecutrix.
7 While considering the deposition of Dr. Kantivan C Goswami, PW-1, examined at Exhibit-11, it appears that, he had an occasion to examine the prosecutrix on the same day on which the alleged incident took place. He found no injuries on her person. He found no sign on the person of the accused which would suggest that he had an intercourse prior to his examination. The certificate at Exhibit-12, which was produced by Dr. Kantivan C. Goswami (PW-1), would suggest that there is no abrasion or any other mark of violence on face, forehead, chest, back lower abdomen, thigh, etc.
Dr. Harshadrai Natvarlal Parmar, PW-2, Exhibit-13, was examined by prosecution for getting support about the injuries received by the prosecutrix. He has categorically stated that he found no injuries on the person of the prosecutrix. Hymen was in tact. He has categorically stated that he found no sign of old or fresh hymnal tear which would suggest that there was no intercourse on the day when she was examined. She was examined on the same day when she alleges of the offence took place. The certificate at Exhibit-14 was issued by Dr. Harshadrai Natvarlal Parma, PW-2. He has stated that he found no external mark of injury over face, mouth, chest, abdomen or inner part of thigh. He found no sign of old or fresh hymnal tear. He has opined that there is no evidence of recent sexual intercourse.
8 Now at this stage we would also like to add that the clothes of the prosecutrix were sent for serological report to the Forensic Science Laboratory at Exhibit-22, which discloses that no bloodstains were found on the clothes of the victim and the semen which was found on the petticoat was found to be undecided and the group of the blood could not be ascertained by the FSL. At this stage we would like to observe that the prosecutrix admitted in her cross-examination that since she was raped, she sustained injuries and her clothes were full of blood which is found untrustworthy from the FSL report.
9 Considering the oral evidence on the record, we are of the opinion that the prosecution has failed in establishing the case against the accused person in absence of any injuries found either on the person of the prosecutrix or accused who were examined on the day on which the incident alleged to have taken place. No bloodstains is found either on the clothes of the prosecutrix or accused or any semen sign was found on the clothes of the prosecutrix. Therefore, in our opinion, the benefit should go in favour of the accused which has been rightly given by the Trial Court.
10 Considering the overall aspects, we are of the opinion that, the learned Trial Court has not committed any error in acquitting the respondent – accused from the charges levelled against him. We are in agreement with the reasonings given by the Trial Court and confirm the acquittal of the respondent. Hence, the appeal stands dismissed.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair