CR.A/178/1985 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 178 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus PATEL SHAVJI CHHAGAN - Opponent(s) ========================================================= Appearance : MR UR BHATT ASST. PUBLIC PROSECUTOR for Appellant(s) : 1, MR MJ BUDDHBHATTI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 08/07/2008 ORAL JUDGMENT 1.0 This appeal arise out of the judgment and order dated 31st December, 1984 rendered by the learned Sessions Judge, Surendranagar in Sessions CR.A/178/1985 2/11 JUDGMENT Case No. 52 of 1984. 2.0 The opponent is original accused who was charged with offences punishable under Section 376, 323 and 504 of the Indian Penal Code. He was, though, acquitted for offences punishable under Section 323 and 504 of the Indian Penal Code was convicted for the offence punishable under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,000/- and in case of default to undergo further imprisonment for six months. 3.0 As per the charge Exhibit-4 framed against the appellant, the prosecution case was that on 06.04.1984, the prosecutrix aged below eighteen years was attacked by the opponent and that the appellant committed forcible intercourse on her with the help of a child accused and thereby committed offences as mentioned above. CR.A/178/1985 3/11 JUDGMENT 4.0 As per the prosecution case, on 06.04.1984 at around 1:00 to 1:30 p.m., the prosecutrix had gone to fetch water from the well situated near the bank of pond of the village. The prosecutrix also wanted to answer the natural call. There are about four wells near the bank of pond of the village. When the prosecutrix was proceeding towards the well from which she wanted to fetch the water, she had seen the opponent, herein, and a child washing cloths. After putting the utensil and rope on the said well, when the prosecutrix went towards the heap of the dirty articles to answer the natural call, at that time, the opponent also went behind her and tried to overpower her by putting cotton blanket on the mouth of the prosecutrix in order to prevent her from shouting. But, the prosecutrix snatched away the said cotton blanket and gave kick blows to the opponent. At that time the child whom the prosecutrix had seen with the opponent, also came there and caught the neck of the prosecutrix and again put cotton blanket on her mouth. The opponent, thereafter, caught both the hands of CR.A/178/1985 4/11 JUDGMENT the prosecutrix by one of his hands and then committed sexual intercourse with her against her wish and will. In pursuance of that the prosecutrix went to her home and informed her mother and other relatives about the incident. When brother and sister of the prosecutrix went towards the place of incident and tried to scold the opponent, the opponent attacked the sister of the prosecutrix with the bucket, but, since brother of the prosecutrix intervened he received injury on his forehead. Pursuant thereto prosecutrix along with her relatives went to Wadhwan police station and registered a complaint against the accused and the child accused who had abetted the accused in committing the offence. Then. the offence was registered and the prosecutrix was sent for medical examination. 5.0 Dr. Chandrakant Virjibhai Solanki-P.W.-1 in his deposition at Exhibit-8 stated that he had examined the prosecutrix on the date of alleged offence and he had found that there were no blood CR.A/178/1985 5/11 JUDGMENT or semen stains on the cloths of the prosecutrix. He has further deposed that there were no marks of external injury on the genital or body of the prosecutrix. However, he deposed that he had found abrasion of about 3 X cm. in size on lower part of left thigh of the prosecutrix. Her hymen was ruptured and there was pain in the index finger of the prosecutrix. He further deposed that normally rupture of hymen takes place during intercourse. 5.1 P.W.-1, in his cross-examination, has stated that rupture of hymen is possible by a fall with force or if two legs are in a separate condition or if a woman is habituated to intercourse. He further stated that, normally, spermatozoa is found in the semen for a period of 48 hours after the intercourse is performed, but, in the case of the prosecutrix, he had found no spermatozoa in her vagina. P.W.-1 has specifically stated in his cross-examination that he cannot say definitely as to whether the CR.A/178/1985 6/11 JUDGMENT prosecutrix was subjected to sexual intercourse on the date of alleged incident or not. 6.0 Dr. Anjna Narendra Shah-P.W.-3 in her deposition at Exhibit-14 has deposed that she had examined the opponent on the date of alleged incident and she had found that there was neither any injury over his body or thigh nor there was presence of any semen stain on his pubic hair or clothes. However, she fairly admitted that there would not be any semen stains on pubic hair or clothes if they are cleared after having sexual intercourse. 6.1 P.W.-3 in her cross-examination has stated that there were no symptoms of performance of sexual intercourse when she examined the opponent on the date of alleged offence. 7.0 The prosecutrix-P.W.-4 was examined at Exhibit-18. Her deposition is very important. In her deposition she has stated that she is aged CR.A/178/1985 7/11 JUDGMENT about 17 years. On the date of incident she had gone to fetch the water from the well situated near the bank of the village pond. She has further deposed that when she was proceeding towards the well from which she wanted to fetch the water, she had seen the opponent, herein, and a child washing cloths. She has further deposed that when she went pass the opponent and child accused, they did not say anything to her. After putting the utensil and rope on the aforesaid well, when she went to the heap of the dirty articles to answer the natural call, the opponent came behind her and tried to got hold of her. The opponent put cotton blanket on her mouth in order to prevent her from shouting, but, she snatched away the said cotton blanket. At that time the child whom she had seen with the opponent also came there and got hold of her neck and again put cotton blanket on her mouth. The opponent, thereafter, caught both her hands by one of his hands and then committed sexual intercourse on her against her wish and will. CR.A/178/1985 8/11 JUDGMENT 7.1 The prosecutrix-P.W.-4, in her cross- examination, has stated that the opponent had made intercourse with her till discharge. She has further stated that she appeared before the doctor for examination in the very same condition in which the offence in question was committed on her by the opponent i.e., she had neither taken bath nor had changed her clothes. 8.0 Apart from the above, the prosecution examined a number of other witnesses, in support of its case, including mother of the prosecutrix and other witnesses as well as I.O.-Narendrasinh Natvarsinh Gohel-P.W.-13. However, it would not be relevant to refer the same. 9.0 In view of the above discussion, before proceeding with the matter further, here, it would be relevant to refer to a decision of the Hon'ble Apex Court in the case of “Raj Kumar alias Raju Yadav alias Raj Kumar Yadav Vs. State of Bihar” wherein at Para-5, the Hon'ble Apex CR.A/178/1985 9/11 JUDGMENT Court observed as under, “5. Keeping in view the fact that there was a delay of three days in lodging the FIR and the fact that the doctor(PW 6), who examined the victim, in her testimony has deposed that she did not find any confirmatory evidence of rape on the victim, in the peculiar facts and circumstances of the present case, we deem it appropriate to reduce the sentence awarded to the appellant to the period already undergone. Ordered accordingly.” 9.1 In the case on hand, from the record it clearly transpires that the story about the alleged offence put forward by the prosecution is not supported by the medical evidence. The evidence of P.W.-1 and P.W.-3 denying presence of any semen stain on the body or clothes of the prosecutrix as well as of the opponent, creates reasonable doubt about the version of the offence given by the prosecutrix. The offence in question is alleged to have been committed in the broad day light i.e. at about 1:00 to 1:30 p.m. in the afternoon and apart from that, though, the prosecutrix herself has admitted that she was taken to P.W.-1 for examination in the very same CR.A/178/1985 10/11 JUDGMENT condition in which the offence was committed on her by the opponent, no symptoms of commission of an offence as alleged by the prosecutrix was found by P.W.-1. It may also be noted that P.W.- 3 who had examined the opponent also admitted that she had not found any symptoms of performance of sexual intercourse by the opponent, when she examined the opponent on the date of alleged offence. 9.2 On perusal of the impugned judgment and order, it clearly transpires that while recording the conviction of the appellant, the learned trial Judge has not taken into consideration the aforesaid aspects which ought to have been taken into consideration by him, looking to the peculiar facts and circumstances of the case. I am, therefore, of the opinion that the appellant has failed to point out any special circumstances for enhancement of the sentence imposed by the trial Court on the opponent. Even otherwise, in view of the fact that the opponent has not CR.A/178/1985 11/11 JUDGMENT preferred any appeal against his conviction and has already served the sentence imposed by the trail Court and taking into consideration the observation made by the Hon'ble Apex Court in the case of “Raj Kumar alias Raju Yadav alias Raj Kumar Yadav”, the appeal deserves to be dismissed. 10.0 In the result, the appeal stands dismissed. (M.D. Shah,J.) Umesh/