CR.RA/40819/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.408 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH sd/- ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ========================================= VADILAL UNZABHAI VAGHARI & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : None for Applicants. MR HL JANI, LD.ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 26/12/2008 ORAL JUDGMENT 1. The learned counsel appearing for the applicant is not present when called out. Today this Court could have dismissed this Revision Application for want of prosecution, however, on perusal of the papers, the Court CR.RA/40819/1999 2/8 JUDGMENT finds that the present Revision Application needs to be dealt with on merit, more particularly when no formal appeal challenging the acquittal by the respondent-State of Gujarat has been filed and Shri H.L. Jani, learned Additional Public Prosecutor appearing for the respondent-State, is able to assist the Court in reference to the legality and validity of the judgment and order of acquittal under challenge. 2. This Revision Application is preferred by the orig. complainant-father of the victim-girl and also by the minor victim-girl through applicant no.1-her father. The applicants have challenged the legality and validity of judgment and order of acquittal passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.160 of 1996. 3. The respondent no.2-orig. accused was facing the charge that on 02nd May 1996 during the time between 03-00 p.m. and 04-00 p.m. he committed rape on the applicant no.2-victim, CR.RA/40819/1999 3/8 JUDGMENT who was aged about 14 years at the relevant point of time, by dragging her forcibly below the edge of lack near thorny babul bushes and that place is known as 'Dhundhaliya Well' and, thereby he committed offence punishable under Section 376 of the Indian Penal Code. 4. I have gone through the judgment and order of acquittal under challenge and the details placed by Shri H.L. Jani, learned Additional Public Prosecutor. The trial Court has discussed the evidence of the applicant no.1, applicant no.2 i.e. PW-4 and the medical evidence led by the prosecution. The trial Court has also discussed the evidence as to the age of the applicant no.2 at the relevant point of time and the evidence led in that regard by the applicant no.1. According to applicant no.1-PW-5, the applicant no.2 at the relevant point of time was aged about 10 to 11 years. The applicant no.2 had studied upto Std.3. The Birth Certificate of applicant no.2 was produced vide Mark 9/23 and 9/24, but the prosecution failed in tendering this evidence CR.RA/40819/1999 4/8 JUDGMENT because the prosecution was under obligation to prove both these documents. On appreciation of the totality, the trial Court has observed that the evidence of applicant no.1 shows that the applicant no.2 was below 16 years of age on the date of incident and this oral version has been believed by the trial Court. On close scrutiny of the evidence and the required standard of proof, this Court is of the view that in a case where the victim girl was aged about 15 to 16 years of age at the time of commission of forcible intercourse, the prosecution is under obligation to lead the best evidence available as to the age of the victim. True it is that this evidence still can be led if the matter is remanded to the trial Court and the witnesses can be summoned as Court witnesses to ascertain the genuineness of two documents produced along with the list Mark 9/23 and 9/24. But according to me, it would not be either proper or justified to remand the matter after a lapse of more than 10 years when the victim CR.RA/40819/1999 5/8 JUDGMENT perhaps might have settled in her life. 5. It is relevant for this Court to note that the order of acquittal is not recorded only on this technical ground of non-availability of cogent evidence as to the age of the victim, but the evidence was found weak by the trial Court as to the identity of the assailant and the person who committed rape on the victim. The trial Court has scanned this evidence thoroughly in paragraph no.12 of the judgment and order of acquittal and has also considered the admissions made by the applicant no.1, whereby he has admitted in his cross- examination (paragraph no.16 of his depositoin) that he did not give the name of accused in his initial statement recorded before the Police Station. It is also stated that before the Women Workers of Antyoday Scheme, he gave the name of the accused as suspect in order to strike off the name of one Jayantilal Nayak. It is observed by the trial Court that the applicant had gone to the extent of involving the accused so the CR.RA/40819/1999 6/8 JUDGMENT prosecution against the said Jayantilal Nayak can be avoided at the instance of Workers of the said Antyoday Scheme. Non-filing of the FIR immediately after the incident appears to be one more relevant aspect. It is not the case of the prosecution that applicant no.2 had given the name of accused immediately after the incident. On the contrary, it is the case of the prosecution that applicant no.1 had seen applicant no.2 lying unconscious and she had bleeding from her private part, but this version appears to be exaggerated version because no such evidence as to the injury in her private part was led before the trial Court. The judgment and order of acquittal passed by the trial Court does not refer to any details as to the injury on the body of applicant no.2. If she was seriously dragged and pushed on the land where thorny bushes were there, she would have sustained some injuries on her body. When it is the say of PW-4-Vadilal, applicant no.1 herein, that he was first informed by one Kanubhai that CR.RA/40819/1999 7/8 JUDGMENT applicant no.2-his daughter, has been raped. According to the prosecution, this Kanubhai was present who had attempted to chase the accused and applicant no.2 had given the name of accused to this Kanubhai, but this Kanubhai has not been examined by the prosecution. So this is is a case of a number of infirmities. It appears that the State of Gujarat only on this count perhaps might have decided not to prefer an appeal against the judgment and order of acquittal. 6. According to me, there is no perversity or patent illegality in the finding recorded by the trial Court. It is well settled law that the yardstick while evaluating the judgment of the trial Court in appeal preferred under Section 378 of the Code of Criminal Procedure, 1973 is materially different than the Revision Application preferred by the orig. complainant. Normally, the Court should go very slow while reversing the judgment and order of acquittal. Merely because some other view could also have been taken by the trial CR.RA/40819/1999 8/8 JUDGMENT Court, it does not make the judgment and order of acquittal under challenge patently illegal. So I do not find any merit in this Revision Application and hence, the same is required to be dismissed. 7. In view of aforesaid observations and discussion, the present Revision Application is hereby dismissed. The judgment and order of acquittal dated 31st March 1998 passed by the learned Sessions Judge, Ahmedabad (Rural), in Sessions Case No.160 of 1996, is hereby confirmed. Rule is discharged. Sd/-. (C.K. Buch, J) Aakar