CR.A/499/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 499 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 Versus THAKOR NATHAJI KESHAJI – Respondent ========================================================= Appearance : MR PD BHATE ADDL PUBLIC PROSECUTOR for Appellant: MR PK SHUKLA for Respondent: ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/08/2008 CR.A/499/1987 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat challenging the judgment and order dated 7.5.1987 passed by the learned Sessions Judge, Mehsana in Sessions Case No. 119 of 1986 acquitting the present respondent- original accused for the offence punishable under Section 376 and 506(2) of the IPC. 2. The case of the prosecution is that on 08.05.1986 at about 8-30 victim Lilaben along with Ranjanben went to the field for agriculture activities. At about 11-00 a.m when Lilaben was doing agriculture activities and after completing she put bunch of grass on her head and was moving towards her house. 3. At the same time, accused came out from the field of Amichand Kishorbhai and asked Lilaben to help him carrying his bunch of grass, but she refused and she started running away, but accused caught her and took her near the well in the field of Amichand Kishorbhai. The accused pushed her in the empty water tank and raped on her. Thereafter, accused threatened victim that she should not tell his thing to any body, otherwise he will kill her and throw her in well. Thereafter, Lilaben went to her house and told the incident to her mother. Her mother also CR.A/499/1987 3/7 JUDGMENT told about the incident to her husband i.e father of the victim at about 12-30 noon. Thereafter, the victim Lilaben also told about the incident to her father and her father went to Kadi Police Station where victim Lilaben lodged the complaint. Thereafter, victim girl was sent for medical examination and panchnama was also carried out. On the next day accused was arrested. Panchnama was carried out and he was also sent for medical examination. After that, a charge sheet was filed before the Judicial Magistrate, First Class and the Judicial Magistrate committed the case to the Sessions Court. 4. We have examined the records and proceedings and we heard submissions of the learned Addl. Public Prosecutor Shri P.D. Bhate. 5. According to the learned Addl P.P., the prosecution has examined 04 witnesses to prove the guilt against the accused and documentary evidence were also produced. 6. As per learned APP Shri Bhate, the prosecution has examined the victim Lilaben vide Exh.19. According to her deposition, she stated in her deposition that at about 11.00 O'clock the accused came out from the field of Amichand Kishorbhai and he asked her to help him in carrying his heap. The accused forcefully took CR.A/499/1987 4/7 JUDGMENT her near the well of Amichand Kishorbhai. The accused pushed her in nick and raped on her. According to this witness, the accused also threaten her by throttling her neck and accused slept over the victim girl for about half an hour. In the cross-examination, she deny that she was found doing intercourse with somebody and therefore, she had given name of the accused. The FIR is produced by the witness which is at Exh. 20. 7. The prosecution has also examined Narayanbhai PW-2 exh. 21. As per this witness, the victim girl Lilaben had told him about the incident and he took her to police station and there a complaint was filed. In the cross-examination, he states that he did not ask anything to his daughter and went to lodge a complaint. According to learned APP, the prosecution has examined Shri Chaturbhai Savabhai Parmar, the Medical Officer, Kadi vide Exh.22 (P.W.3). As per the Medical Officer, Lilaben was brought to him at about 4-00 p.m. As per doctor, she found following injuries. Part of deposition of this witness is as under: (i)Tenderness on front of neck. (ii)Tenderness on both thighs inner-side. (iii)Seminal like stains on Chaniya which is handed over to police. CR.A/499/1987 5/7 JUDGMENT Regional smear taken for microscopic examination. In my opinion, she has been performed rape note (incorrect English expressions) permatozone – present on mycrostic examination. I have given certificate. It bears my signature. It is Exh. 23.” In the medical examination, no injury was found on the body of Lilaben. As per the deposition of Doctor at Exh. 22, no external injury was found and she was in habit of intercourse. She is about 18 years as per the deposition of doctor. Moreover, at the time of running away from the field the victim girl did not take how long she went and from which place she was caught by the accused. The deposition of the victim girl is not believable and inferences can be drawn that there was a consent of intercourse by the victim. She did not shout or did not tried to run away. The victim girl is not stating anything in her deposition that she was shown dhariya at the time of threatening her, there is contradiction in her deposition. Therefore, her deposition was not believed by the learned trial Judge and ultimately acquittal order was passed by the learned trial Judge in which no interference is required and order passed by the learned trial Judge is just and proper. 8. The doctor has also examined Nathaji on 9.5.1986 at about 6-00 pm. and has found no semen stain CR.A/499/1987 6/7 JUDGMENT on cloths or any part of the body. No external mark of injury were visible on his body. There was no external mark of injuries on person of Lilaben. It is true that if Lilaben is given a push whereupon she fell down on tank, there would be marks of injury on person. If a person tried to cross the tank lifting one leg then there would be injury of tenderness of both inner thighs. The Doctor issued certificate, which is at Exh. 23. 9. In the medical evidence, no injury was found on the body of Lilaben. As per the deposition of Doctor Exh.22, no external injury was found. She is about 18 years as per the deposition of doctor. Moreover, at the time of running away from the field the victim girl did not say that how long she went and from which place she was caught by the accused. The deposition of the victim girl is not believable and inference can be drawn that there was consent of intercourse by the victim. She did not shout or did not try to run away. The victim girl is not stating anything in her deposition that she was shown Dhariya at the time of threatening her, there is contradiction in her deposition. Therefore, her deposition was not believed by the learned trial Judge and ultimately the acquittal order was passed by the learned trial Judge in which no interference is required and the order passed by the learned trial Judge is just and proper. CR.A/499/1987 7/7 JUDGMENT 10.Thus we are not persuaded to disturb the same. The acquittal is affirmed. Appeal filed by the State is dismissed. Bail bonds are cancelled. Record and proceedings be sent forthwith to the trial Court. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] pallav