(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. The State of Gujarat has challenged the judgment and order dated 29.7.1994 passed by learned Sessions Judge, Bhavnagar in Sessions Case No.62 of 1992 by which the respondentaccused has been acquitted from the charges levelled against him under the provisions of Sections 376 and 506(2) of Indian Penal Code.
2. The brief facts of the present case are as under:
2.1 That one Rajuben Nanubhai, aged about 13 years, lodged a complaint with Palitana Town Police Station on 7.11.1991 and alleged that at about 14:30 hours on 7.11.1991, when she was going towards her town Bhilwada by crossing a river, the accused took advantage of her loneliness and dragged her near the babul trees, and against her will the accused committed rape. Pursuant to the complaint lodged by Rajuben Nanubhai, the police officer started investigation and filed chargesheet in the Court of learned JMFC at Palitana, who in turn committed the case in the Court of Sessions.
2.2 The charge was framed at Exh.4 which was denied by the accused and, therefore, the learned Sessions Judge proceeded with the trial. By judgment and order dated 23.3.1993 the learned Additional Sessions Judge held guilty the accused and convicted him for R.I. for seven years under Section 376 and a fine of Rs.1,000/, and in default R.I. for six months was awarded. He was also sentenced for R.I. for two years and a fine of Rs.500/, and in default of payment of fine, S.I. for three months for Section 506(2) of IPC. The accused challenged the said judgment and order dated 23.3.1993 by way of filing Criminal Appeal No.605 of 1993 before the High Court of Gujarat which was allowed by judgment dated March 08, 1994. By the said judgment, the judgment and order dated 23.3.1993 by which the accused was convicted was quashed and set aside and the matter was remanded with a direction to the learned Sessions Judge to take up the matter by himself and the case shall be decided in accordance with law, within a period of four months from the receipt of the order by which the judgment was quashed and set aside.
2.3 The learned Sessions Judge, after examining the depositions of witnesses and documentary evidence on record, came to the conclusion that the prosecution has failed in establishing its case beyond doubt and, therefore, acquitted the accused from the charges levelled against him. Hence, this appeal.
3. Though notice is served upon respondent at the admission stage, he has chosen not to remain personally present or through his advocate. However, with the help of learned APP Mr.Neeraj Soni, we have decided the matter on its merits.
4. Learned APP Mr.Neeraj Soni has taken us through the Record & Proceedings and through the deposition of witnesses and documentary evidence proved by the prosecution before the trial court.
Mr.Soni has assailed the judgment of the trial court on the ground that the reasons assigned by the trial court in acquitting the accused are required to be reappreciated in view of the circumstances which are proved against the accused person and acquittal is required to be quashed and set aside.
Learned APP Mr.Soni has submitted that the prosecutrix was only 13 years of age and, therefore, even if there is consent given by the accused, such consent is required to be ignored and, therefore, the act of the accused falls within the definition of rape.
5. We have carefully gone through the deposition as well as documentary evidence. At the outset, we would like to observe that the prosecutrix Rajuben, though, summoned time and again, did not remain present to depose before the court about the incident which she initially alleged by way of filing an FIR. The prosecution has not even examined the police officer, who investigated the case and filed chargesheet in the Court of learned JMFC at Palitana. In view of nonexamination of either prosecutrix, the investigating officer or the police officer who recorded the complaint, the FIR is not proved and is not on record of the case.
In absence of the material evidence the Court has to depend upon other witnesses through which the prosecution has tried to establish its case.
6. Now considering the medical evidence with regard to the accused person, Dr.Alpeshbhai Shah, P.W.1 Exh.10 has categorically deposed that he found no injuries either on the private part or on the person of the accused. Similarly, Dr.Rameshkumar Vishwanath, P.W.7 Exh.30, who had examined the prosecutrix has categorically deposed that he found no injuries either on the private part or on the breast of the prosecutrix. He found no semen or bloodstains on her private part. Another aspect about proving the clothes of accused as well as the prosecutrix, and the panchnama of scene of offence, the panchas have not supported the case of the prosecution. One Vasantben Nanubhai, P.W.6 Exh.29, who happens to be sister of the prosecutrix was examined by the prosecution but she has not supported the case of the prosecution.
7. 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.
8. Considering the entire case, we are of the opinion that the learned Judge has not committed any error in acquitting the accused persons from the charges levelled against him. In our view, it is a case of no evidence and, therefore, it does not require any interference. Hence, the appeal fails and is dismissed accordingly.
(A L DAVE, J.) (A J DESAI, J.) syed/