CR.A/74219/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 742 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 Versus RASULBHAI BHIKHABHAI GARASIA TANDALAJA ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant Ms Sadhana Sagar for the Opponent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2008 CR.A/74219/1987 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) State of Gujarat, by the present appeal, challenges the judgment and order dated 09.06.1987 passed by the Additional Sessions Judge, Baroda in Sessions Case No. 128 of 1985 acquitting the present respondent – original accused of offences punishable under Sections 376 of the Penal Code. Bhikhabhai and Paniben had four sons and a daughter named Shehnaz. Shehnaz was youngest of the siblings. Around the time of incident, Shehnaz who was less than 16 years of age was occasionally working as a labour in the village fields. On 29.9.1983 at about 3 PM she had gone with Deviben and Dhaniben to the field of Becharbhai Baria situated in the sim of village Tandalja. Along with other labourers they were thrashing the paddy and accused Rasulbhai was supervising the work. They completed the thrashing work and at about 8.30 – 9 PM Shehnaz and Deviben went to the room constructed on the field to put the bags of thrashed rice. There, Becharbhai's mother gave Shehnaz tea for the labourers working in the field. Shehnaz carrying the kettle of tea and cups and saucers started walking back along with Savitaben and Deviben. At that time accused came there. He gagged her mouth and dragged to a nearby pit. He then got on top of her and raped her. All this time he had stuffed her mouth with the handkerchief. Thereafter, he left the place and Shehnaz returned to her house and informed her mother about the incident. Next day, Bhikhabhai and Shehnaz went to Sayajiganj Police Station and gave a complaint. As no action was taken by the police on their complaint, both of them met the Commissioner of Police and on his instructions a complaint was lodged on 5.10.1983. CR.A/74219/1987 3/6 JUDGMENT After trial, the accused was acquitted of the charge of rape. The learned Sessions Judge noticed that there was a delay of six days in lodging the FIR. He also found the evidence of the prosecutrix unreliable and in the absence of any other cogent and independent evidence acquitted the accused. It is now well-settled that a finding of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutrix. The very nature of the offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is a consent, the act will still be a “rape” if the girl is under sixteen years of age. So whether there was rape or not would depend ultimately on the facts and circumstances of each case. Heard Mr Maulik Nanavati, learned Additional Public Prosecutor for the State and Ms Sadhna Sagar for the respondent. Shehnaz, PW 2 who has been examined has stated in her evidence that when she was walking towards the field from the hut carrying a kettle of tea and cups and saucer, Savitaben was walking in front of her and Deviben was walking about five feet behind her. At that time, accused suddenly pulled her and dragged her behind the thorny bushes at a distance of about 20 feet. He gagged her mouth by putting a cloth inside it and thereafter committed rape on her and went away. Then she CR.A/74219/1987 4/6 JUDGMENT went home and informed her mother who narrated the incident to Bhikhabhai, her father. Both Bhikhabhai and Prosecutrix then went to the police station and a gave a complaint against the accused. As no action was being taken by the police, they met the Police Commissioner and on his instructions a complaint was registered on 5.10.1983. Now the prosecution has not produced the complaint stated to have been given by the father of the prosecutrix to the police on 30.09.1983. The said complaint is brought on record by the defence who has also examined Constable, Abesing Pratapbhai who recorded the said complaint. In the complaint, the father of prosecutrix has alleged that the accused had been teasing his daughter since past few days, that his daughter had complained to him about the same and so he had gone to meet the accused and had scolded him for behaving in such manner. At that time, the accused had abused him and threatened him. Therefore, he has given a complaint alleging offences punishable under Section 504 and 506(2) against the accused. There is no mention in the complaint of any rape having been committed by the accused on the prosecutrix. The said complaint was registered and investigation was handed over to Head Constable. Head Constable, Tulsiram Patil, DW 2 during the investigation recorded statement of the complainant, his wife and daughter Shehnaz. Even in the statements, they did not say anything about the accused committing rape. The accused was arrested on 4.10.1983 in connection with the said complaint. Thereafter, on 5.10.1983 a new complaint was lodged containing allegations of rape. Prosecutrix has admitted the complaint produced by the defence and has attempted to offer a lame explanation that the police had not recorded her allegations correctly. This is not very believable for the reason that even in the police statements, they have not mentioned anything about rape. This raises serious doubts as regards the genuineness and correctness of the allegations contained in the complaint lodged on CR.A/74219/1987 5/6 JUDGMENT 5.10.1983. Such belated complaint in the circumstances also makes the possibility of it having been made after deliberation and advice not improbable. Suffice it to say it loses its significance and probative value and renders the prosecution version doubtful. There are other infirmities in the case of prosecution also. It is trite law that penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. In the present case, the evidence of prosecutrix on this point is absolutely vague. She only states that the accused did a bad thing with her. She does not give any further evidence on the manner in which the accused committed sexual intercourse, if any, with her despite the fact that the proceedings were held in camera so as to enable her to freely give evidence. She does not state whether she was undressed; or whether the accused undressed himself and thereafter inserted or attempted to insert his penis into her vagina. Even the medical evidence on this point is not very clear and convincing. The incident is alleged to have taken place on 29.09.1983 and the prosecutrix was medically examined on 5.10.1983. The doctor who examined the girl did not notice any spermatozoa or injury marks on the genitals. He however stated that the hymen was ruptured but could not say with certainty the age of rupture. Considering the background of the prosecutrix and the nature of work that she was doing the possibility of her hymen rupturing because of physical exertion cannot be ruled out. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz., labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigor and force used by the accused and counteracted by the victim. CR.A/74219/1987 6/6 JUDGMENT Here, no inflammation or injury marks have been noticed on the labia majora. Therefore, the medical evidence does not corroborate the prosecution version as advanced by the prosecutrix. Further, father of the prosecutrix has not been examined as a witness. The explanation offered on behalf of the prosecution is that he has gone to some village for labour work and his whereabouts are not known even to the family. This is hardly believable. Even more strange is the fact that prosecution has chosen not to even cite Savitaben and Deviben as witnesses. Admittedly, both of them saw the accused forcibly taking away the prosecutrix and were therefore important witnesses to the incident. Yet, they prosecution has not thought it fit to examine them as witness. This speaks volumes about the functioning of the police and casts a serious doubt over the credibility of investigation. For the foregoing reasons, we are of the considered opinion that the evidence of the prosecutrix when read as a whole is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The other surrounding circumstances also do not lend any credence to the prosecution version and in absence of any cogent and credible material, we find that trial court was right in acquitting the accused. We do not find any infirmity with the reasonings given by the learned Sessions Judge, which would call for interference at our hands. In the result, the appeal stands dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd