This appeal arises out of the judgment and order dated 23/02/2006 rendered by learned Additional Sessions Judge, 4th Fast Track Court, Patan, convicting the appellants for the offences punishable under Sections 376, 363, 366, 342, 506 (2) and 114 of the Indian Penal Code and sentencing them to undergo five years rigorous imprisonment with a fine of Rs.5,000/- each in default to undergo further one year rigorous imprisonment for offences punishable under Sections 363 and 366 read with Section 114 of the IPC; to undergo ten years rigorous imprisonment and to pay a fine of Rs.25,000/- each in default to undergo further two years rigorous imprisonment for the offence punishable under Section 376 r/w Section 114 of the IPC; to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment for the offence punishable under Section 342 and 506 (2) r/w Section 114 of the IPC each. The learned Judge also directed that amount of Rs.50,000/- be given to the prosecutrix as compensation upon payment of fine by the accused. The sentences were ordered to run concurrently. 2. Brief facts of the case are that as per the FIR lodged by Ishwarji Shankerji Thakor, on 25/12/2000, his daughter – Jyotsna was kidnapped by the present appellants, then she was taken to a field and was confined in the field till 27/12/2000. That during this time, she was kept in a field in the outskirts of Village Jamtha where she was raped by both the accused – appellants for five times each. It is then the case of prosecution that then she was left at the borewell owned by her maternal aunt – Vijiben and then she was ultimately brought home. The father of the prosecutrix upon learning about the alleged repetitive rape by the two accused, lodged FIR with Vagdod Police Station. Based on that FIR, Police started investigation and having found sufficient evidence, filed charge-sheet in the Court of learned JMFC, Patan, who in turn, committed to the Court of Sessions and Sessions Case No.416 of 2002 came to be registered.
3. The Sessions Court framed charge against the accused persons at Exh.2 charging them for the offences punishable under Sections 363, 366, 342, 506 (2) read with Section 114 of the IPC, to which both the accused persons pleaded not guilty and claimed to be tried.
4. The Sessions Court after recording the evidence, also recorded statements of the accused under Section 313 of the Code of Criminal Procedure and both of them pleaded ignorance about the incident and stated that they have been falsely implicated.
5. The judgment was rendered on 23/02/2006 and hence this appeal by accused persons.
6. We have heard learned Advocate Mr.Saiyed for the appellants and learned Additional Public Prosecutor, Mr.Nanavati for the respondent-State.
7. Learned Advocate Mr.Saiyed submitted that whole of the prosecution story and evidence are inconsistent at every stage and every level. The trial Court has overlooked these aspects. Mr.Saiyed submitted that apart from anything else, there is material contradiction so far as age of the prosecutrix is concerned. The record of Panchayat register indicates age of the prosecutrix to be 19 years, whereas, as per the oral evidence adduced by the father of the prosecutrix and the ossification test, the age of the prosecutrix was about 14 years.
7.1 Mr.Saiyed submitted further that the trial Court has overlooked the fact that in spite of alleged repeated rape by two accused, there has been no evidence of any injury on person of the victim, except abrasion on thigh. He further submitted that even the accused persons did not have any injury on their person. If rape committed by them was forcible, there would have been some mark of injury to indicate resistance by the victim. Undisputedly, the prosecutrix was a virgin and as per prosecution case her hymen was torn in the recent past of the day of examination, still there is no mark of any injury on person of the victim.
7.2 Mr.Saiyed submitted further that with the above facts and background, the medical evidence would show that there was presence of smegma found on penis of both the accused. Presence of smegma would be a positive factor indicating absence of intercourse in recent past and makes the case of the prosecution weaker.
7.3 Mr.Saiyed further submitted that the incident had occurred in an open field and as per the victim she had not raised any shout; nor did anyone come to her rescue. Surprisingly, she was kept in the open field for about two and half days. Mr.Saiyed submitted further that as per the prosecution case, the victim was dropped at the house of Vijiben, maternal aunt of the prosecutrix. The prosecutrix must have conveyed as to what had happed, immediately to her aunt so also her husband. But, neither her aunt or her husband have been examined by the prosecution and, therefore, what was the first reaction of the prosecutrix, is not brought on record by the prosecution.
7.4 Mr.Saiyed then submitted that there is also an inconsistency between the evidence of prosecutrix and the father of the prosecutrix.
7.5 As per case of the defence, the accused persons are falsely implicated because of the enmity with one Gulabji Thakor, who happens to be Sarpanch of the Village and relative of both the accused.
7.6 It is further submitted that if the evidence of the Doctor is seen, he is not sure about the fact of rape or attempted rape.
7.7 Mr.Saiyed submitted that if all these factors taken individually, may not be found to be sufficient, to turn a conviction into acquittal. But, if they are examined collectively, it would indicate that the prosecution expects the Court to accept happening of a large number of events co- incidentally.
7.8 Mr.Saiyed submitted that there may be one or two co-incidence occurring together, but not a series of them. The prosecution has not established certain material facts to the hilt. Medical evidence does not go hands in hands with the prosecution case and, therefore, this appeal may be allowed and conviction may be set aside.
8. Learned Additional Public Prosecutor Mr.Nanavati on the other hand opposed this appeal. According to him, the trial Court has taken into consideration all relevant aspects. The argument advanced by learned Advocate for the appellants Mr.Saiyed is hypertechnical. The prosecutrix has no reason to falsely implicate the accused and let the real culprit to go scot-free. He further submitted that medical evidence if compared with the ocular evidence of the prosecutrix, they would prove the prosecution case. He, therefore, submitted that appeal may be dismissed.
9. We have gone through the record and proceedings in context of rival submissions. As per the prosecutrix (Exh.19), while she was coming home at about 11:00 a.m., for the purpose of cooking in a nash-lane, she noticed the two accused persons standing. When she passed by them, accused – Valji caught hold her hand and threatened her with a knife asking her not to speak anything. She says that she was then taken to a field of caster crop belonging to one Gulabji. She then says that she was raped by both the accused persons for two days repeatedly for five times by each of them. According to her, one of the accused would go to the village, while other would keep her in confinement. She says that she was aged about 12 to 13 years at the time of incident. She is illiterate and has never gone to school. At the time of incident, she was wearing petticoat, blouse and shawl. She states that she knew both the accused persons before and ultimately identified them in the Court. It also emerges from the record that rape was committed on her by lying her a mattress. That at the time of medical examination, she had changed her clothes which she was wearing at the time of incident.
9.1 She has been put to the test of cross- examination. During her cross-examination, she states that she used to go to her field for last about three days. She admits during the cross-examination that the place where she was caught by waiting accused persons, as alleged, is more frequented by people. She states that the crops were in the field where the incident occurred as also in the neighbouring field. She states that she was beaten and then intimidated by the accused persons. That after the incident, she was left at her maternal aunt Vijiben's place there she has told her maternal aunt about the incident. She was left her aunt's place at about 4:00 a.m. in the early morning and next day, she was taken to her father's place by her maternal uncle. She states that when she reached home, her father was not at home, but had gone to the field for the purpose of weeding. She states that she had changed her clothes after the incident and before the medical examination, as they were stained with blood.
10. Against this evidence, if the medical evidence is seen, Dr.Amrutlal Virabhai Patel states that he had examined the prosecutrix on 29/12/2000 when the prosecutrix was brought to him for medical examination by Police Constable - Devyaniben. He had examined her and found that she had not taken bath but had changed cloth; that there were no external marks of any injury on her person; that there were abrasions on her thigh; there was matting of pubic hair and hymen was ruptured; the vaginal swab did not indicate presence of any spermatozoa. According to the Doctor, at one stage the medical examination would indicate that a rape was attempted on the prosecutrix. Whereas, while concluding he says that the prosecutrix was raped within last one week of her examination by the Doctor.
11. Ishwarji Shankerji is the first informant and father of the prosecutrix. He is examined at Exh.13. He speaks about the prosecutrix having been found missing and upon inquiry, the prosecutrix told him about the incident alleging rape by both the accused persons, so also, the criminal intimidation by them. He has been cross-examined at length on various other aspects. He denies the fact that at the time when he gave complaint, age of the prosecutrix was 21 years.
12. Having taken a look at the evidence discussed herein above, what is found is that there is inconsistent evidence as to the age of the prosecutrix. According to her, she was 12 to 13 years of age at the time of incident. According to the medical evidence, the ossification test indicated her age to be 14 years and according to the record of Panchayat, the birth date of prosecutrix was 01/05/1981 (Exh.46) i.e. 19 years and, therefore, it is not possible to ascertain the age of prosecutrix which is a relevant factor in such cases.
13. Indisputably, the incident occurred in an open field and lasted for about two days during which prosecutrix is alleged to have been raped for five times by each of the accused. Surprisingly, she did not raise any shout for help, particularly when the fields had standing crops and would be visited by people for looking after the crops. It also emerges from evidence of the prosecutrix that the lane from where she was picked up, was very near to the place of incident and was frequented by people.
14. It is also worth to note that the prosecutrix and the appellants did not have any marks of external injury against allegation of repeated forced intercourse by both the appellants with the prosecutrix. What makes the prosecution story doubtful is that despite such repeated intercourse, smegma is found on both the accused. Presence of smegma rules out intercourse.
15. The evidence would also indicate that there was recent rupture of hymen as noticed by the Medical Officer. The case of the prosecutrix is that there
particularly petticoat that she was wearing at the time of incident did not carry any semen stains. Contrary to this, as per the prosecution evidence, the clothes of the accused persons did have stains of the semen and strangely when the accused persons were examined by the Doctor, there was presence of smegma on the penis of both the accused. This set of facts, sets this Court to think whether what is alleged, would really happen in the manner in which it is alleged flooding the thoughts with doubt.
16. The inconsistency in the prosecution story does not only stop here. There is inconsistency on how the prosecutrix came back to parental home. As per the say of the prosecutrix, she was dropped at her maternal aunt –Vijiben's bore-well at about 4:00 a.m. on 27/12/2000 and then she was taken to her father by her maternal uncle. According to the father, he learnt about the prosecutrix having come to maternal aunt's place and he got her collected from there. The prosecutrix admits that she had narrated the incident to her maternal aunt and, therefore, maternal aunt was the first person to know as to what had happened. But, she has not been examined, nor her husband is examined. It also emerges from the evidence that when the prosecutrix reached home, her father was not present.
17. The defence version is that they have been falsely implicated because of the enmity with Sarpanch of whom both accused are relatives. This version cannot be brushed aside easily. It is true that prosecutrix would not normally falsely implicate a person and let the real culprit go scot-free, but the human mind is strange as it acts in ways, normally not known at times. Here the evidence of the prosecution makes the involvement of the accused persons in the incident doubtful though rape or intercourse with the prosecutrix is established. But the benefit of doubt has to be given to the accused persons, the appellants herein on account of inconsistencies in the prosecution case.
18. The appeal is, therefore, allowed. The judgment and order dated 23/02/2006 rendered by the learned Additional Sessions Judge, 4th Fast Track Court, Patan in Sessions Case No.416 of 2002 is set aside. The appellants are acquitted of all the charges levelled against them and they are ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, by the appellants, is ordered to be refunded to them.
(A L DAVE, J.) (MOHINDER PAL, J.) sompura