This appeal arises out of a judgment and order rendered by Sessions Court, Mehsana in Sessions Case No.185 of 1992 on 15/01/1993, whereby the Sessions Court convicted the respondent for the offence punishable under Section 363 of the Indian Penal Code and was sentenced to undergo RI for one year and to pay a fine of Rs.200/-, in default, RI for two months. 1.1 The respondent was, however, acquitted of the offence punishable under Section 376 of the Indian Penal Code and hence this appeal.
2. It would also be appropriate to note that this appeal is preferred by the State of Gujarat against the acquittal, but the accused has not preferred any appeal against the conviction as recorded herein above.
3. We have heard learned APP, Mr.Neeraj Soni for the appellant – State of Gujarat. Respondent, though served, has chosen not to contest this appeal.
4. The prosecution case, in brief, was that the respondent kidnapped Tiniben Ataji, daughter of Kaliben Atajai, aged about 04 years and then committed rape on her on 24/01/1992. The prosecutrix was approached by the appellant and was lured in going with him out of temptation for confectionery. She was taken little away, where it is alleged that he removed her clothes, mounted on her and committed rape. It was medically found that there were no injuries to her genitals. She had some injury of rectum wherefrom there was some bleeding. This happened allegedly in the early morning hours before the village came to its normal activity and life.
5. The trial Court found that the prosecution could not prove the case for rape and, therefore, acquitted the accused and hence this appeal.
6. We have heard learned APP, Mr.Soni for the State and none appears for respondent though served.
7. Mr.Soni has taken us through the record and proceedings and we find that as per the Doctor's evidence the genitals of the prosecutrix were uninjured and intact.
8. The prosecutrix in her deposition (Exh.15) says that accused removed his clothes, her clothes, but did nothing to her. She has also deposed that A-1 had not offered to her any confectionery. She was bleeding per rectum. She started bleeding after respondent mounted on her. She then says that she had become unconscious.
8.1 The prosecutrix when cross-examined admits that she had gone out to attend nature's call, where incidentally, she fell down. She states that she also admits that she started crying and at that point of time, accused – Raman picked her up and delivered her at her house. She states that she has not lodged any FIR, but she had told her mother about the episode.
9. Learned trial Court observed that offence of rape, by no stretch of imagination can be said to have been constituted, taking the prosecution case at its face value. There is no allegation or evidence about penetration.
10. In our view, when the trial Court has observed that there is no evidence to constitute offence of rape and was, therefore, justified in recording acquittal, we do not deem it proper to interfere with the judgment of the trial Court. The appeal must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) sompura