CR.A/314/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 314 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 ABHU JUMA MUSALMAN ========================================= =Appearance : MR SP HASURKAR, ADDL 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 : 12/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State against the judgment and order of acquittal dated 12.1.1987 passed by CR.A/314/1987 2/5 JUDGMENT the learned Assistant Sessions Judge Kutch- Bhuj, in Sessions Case No. 20 of 1985. 2. It the case of the prosecution that on 7.4.1983, the prosecutrix lodged a complaint stating, inter alia, that she is resident of village Devadia of Taluka Anjar and she is staying with her husband and in-laws in the said village. Her in-laws are in agriculture and she is helping them in their work. On the said day, somewhere between 10.00 a.m. to 1.00 p.m., while she was going to her fields for giving meal to her husband, the respondent accused came on cycle and held her by his hands and thereafter, she fell down on the floor and thereafter he committed forcible sexual intercourse. Thereafter, with great difficulty, she reached to her husband and reported about the same. Since her father-in-law had gone out to Anjar town, upon his returning in the evening, she had come to lodge the complaint. 3. After completion of the investigation, chargesheet was filed against the respondent accused. Thereafter, the case was committed to the Court of Sessions. Thereafter, charge was framed for the offence under Section 376 of the Indian Penal Code. The accused did not plead guilty and, therefore, he was put to the trial. 4. After recording the evidence, the learned Sessions Judge was pleased to acquit the respondent. The State being not satisfied by the said judgment, has preferred this appeal. 5. The learned Additional Public Prosecutor took us to the deposition of the prosecutrix and strenuously contended that CR.A/314/1987 3/5 JUDGMENT her evidence is sufficient and enough trustworthy because she has immediately reported the incident to her husband and, thereafter, to her other in-laws. The learned Judge erroneously acquitted the respondent-accused on the ground that there were no injuries either on the body of the prosecutrix or the body of the respondent accused to come to a conclusion that there was any resistance offered on the part of the prosecutrix. Moreover, certain other unwarranted inference were drawn upon the admissions which were extracted in her cross-examination; the learned Trial Judge erroneously acquitted the respondent accused. 6. We have perused the version of the prosecutrix recorded at Exh.7, we have gone through the medical evidence of Dr. Mahendrabhai recorded at Exh.8, and we have also perused the medical certificates of the prosecutrix as well as that of the respondent accused at Exhs. 9 and 10 (medical certificates and evidence of Dr. Mahendrabhai). We have gone through the judgment of the learned Sessions Judge. The learned Sessions Judge has doubted the version of the prosecutrix mainly on the ground that the medical evidences do not corroborate any resistance offered by the prosecutrix. 7. She has also attempted to improvise her version, which is recorded in the FIR. So far as the recovery of cloth is concerned, it is stated in her deposition before the Court below that after the incident, she had changed her clothes and when she went to lodge the complaint, the clothes were taken alongwith her and taken as muddamal articles. However, her father-in-law, who is examined at PW 4 at Exh.13, states in para 8 of his deposition that no clothes were taken alongwith CR.A/314/1987 4/5 JUDGMENT them. It did not struck him to take clothes. Moreover, even the prosecutrix has attempted to state that she sustained some injuries in scuffle with the accused. But, perusing the medical evidence, the same are not corroborated. On the contrary, the medical evidence reflects that there were no injuries on the body of the prosecutrix. 8. Animosity arose out of the business rivalry is brought on record, which may be a relevant consideration for false implication. The version of the prosecutrix was not believed by the learned Sessions Judge assigning various reasons. Being not supported by medical and circumstantial evidence, definite conclusion of guilt is risky. We are conscious about our limited scope in acquittal appeal. Though we may not fully agree with the reasons assigned by the learned Sessions Judge, but, at the same time, considering the limited scope in appeal and considering that the incident has occurred way back in the year 1983, and we have been informed by the learned Additional Public Prosecutor that the prosecutrix is now no more in this world, in this set of circumstances, we do not find any reason to interfere with the acquittal recorded by the learned Sessions Judge and dismiss the appeal preferred by the State. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar CR.A/314/1987 5/5 JUDGMENT