CR.A/498/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 498 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 CHANDRAKANT @ CHARKHI SHANKARRAO SETARKAR – Respondent ========================================================= Appearance : MS MITA PANCHAL, LD ADDL PUBLIC PROSECUTOR for Appellant(s) : 1, MR JM BUDDHBHATTI for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2008 ORAL JUDGMENT CR.A/498/1987 2/7 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 30.4.1987 passed by the learned Sessions Judge, Baroda in Sessions Case No. 104 of 1986, acquitting the present respondent- original accused for the offence punishable under Section 376, 342 and 352 of IPC. 2. It is the the prosecution case that the prosecutrix Madina was residing at with her father Rasulbhai Ganibhai Shikh (complainant) at Baroda along with her family, on the date of incident i.e on 01.04.1986 her father had gone to the factory for his usual work, her mother had also left the house for some personal work, in short prosecutrix (victim) Madina was present at her house along with her brother and at around 4 O'clock accused had come at the house of Madina and accused managed to send away the brother of Madina out under the pretext of buying the toffees for them, therefore, Madina was left alone in her house and accused caught hold of her and against her will and consent, accused had ravished Madina, meanwhile, the brother of Madina had returned from the toffees shop and they had seen Madina was standing near the vada and she was weeping. Thereafter, on seeing her weeping, a crowd was gathered and PSI of the nearest Police Station was informed about CR.A/498/1987 3/7 JUDGMENT the accurance of the incident and, therefore, PSI Shri Katara immediately registered a complaint given by the father of the prosecutrix, Rasulbhai and immediately the complainant was directed to go to the hospital along with prosecutrix for examining her, and she was examined by the doctor on 2.4.1986 by the Medical Officer of SSG Hospital, Baroda, then accused was arrested on 6.4.1986 then, investigation was carried out, chargesheet was filed, case was committed to the learned Sessions Judge, charge was framed and as the accused pleaded not guilty and therefore, after full-fledged trial all the accused persons were acquitted. Against the said acquittal, the State Government has preferred the present appeal against the accused person. 3. It is submitted by the learned APP Ms. Mita Panchal appearing for the State that the prosecution has produced sufficient evidence viz. P.W.7, Medical officer Dr. Uday Purandara below Exh. 20, PW-1, Complainant Rasulbhai (father of the prosecutrix) below exh. 13 PW-2 Madina – Prosecutrix aged between 9 to 12 years (minor) exh. 14 and PW-3, Ramzan Rasulbhai, brother of prosecutrix, exh. 15 PW-4 Laxmansinh Katara, PSI who invested the matter below exh.16 to establish the case of prosecution and as per the medical evidence and certificate issued by the Medical Officer after examining prosecutrix CR.A/498/1987 4/7 JUDGMENT Madina exhibited as exhibit 21 at page no. 57 two injuries were found on prosecutrix though she was examined on the next day i.e on 2.4.1986 and so far as accused is concerned, he was arrested after 5 days, therefore, though he was examined by the same officer and certificate issued below exh. 22, according to the said doctor he found once scar over the forehead of accused person even after five days and the same doctor has also issued a certificate indicating the age of the girl and according to him, she was aged around between 9 to 12 years undisputedly minor, therefore, accepting the version of the complainant, a prosecutrix and a Medical Officer deposition, the learned Judge ought to have convicted the accused person for the aforesaid offence. 4. Against the submissions made by learned APP, submission made by the counsel for the accused was that it is a case of 376, 352 and 342, therefore, first of all whether the act was committed with consent or forcefully, he is required to be proved by the prosecution and the prosecution has not proved the same as the accused was not known to the complainant in fact in the deposition of the complainant, it has come on record that complainant came to know that accused was residing after 10 streets from the house of complainant and the complainant could not explain how the name of the accused CR.A/498/1987 5/7 JUDGMENT has been given in the FIR nor the prosecutrix, Madina could explain the same and it is also not in dispute that no T.I was held, therefore, there is no link established by the prosecution to connect the accused person with the offence. Even the brother of prosecutrix, Ramzan was examined and he has stated that her sister Madina had disclosed that she was ravished by accused and in his deposition he has used a particular word 'balatkar' but an attempt was made by the court whether he was perfectly understanding the meaning of the said word but according to the Court he was not understanding the meaning of the said word, therefore, there were all probability that the witness was tutored and therefore, considering this aspect the learned trial Judge has rightly acquitted the accused person. 5. It is also submitted by the learned advocate that even medical evidence also not supported the case of the prosecution as per the doctor opinion, no injuries were found on the private part and even as per the deposition of the complainant, the cloths which are sent of prosecutrix were have blood stains but as per the FSL report, there was absolutely no blood or semen was found on them. Thus, considering the over all evidence, the learned Judge has rightly acquitted the accused persons which may kindly be confirmed. CR.A/498/1987 6/7 JUDGMENT 6. The trial Court found that though PSI Shri Katara of City Police Station reached at the place of incident immediately and registered a complaint on the same day between 8=00 PM to 9=00 and thereafter, the complainant was asked to take the prosecutrix for medical examination even though she was got herself examined on the next day i.e on 2.4.1986. That accused was not known to the victim, brother Ramzan or complainant in short he was a stranger to them, therefore, no evidence has come on the record to connect the accused with the offence, even T.I was also not held. As per the say of victim, the act of the accused was continued and was completed, however, no injuries were found on the private part only a doctor found some congestion on it which can be happened on account of non taking of bath for several days. Even as per the FSL report also, no blood or semen was found on the cloth of the victim which is produced on record at exh.18 and therefore, the learned Judge has acquitted the accused person. 7. We have heard learned counsel for the parties. Considering the case of identification, the case of prosecution become doubtful. Admittedly the accused was not known. In such cases, when T.I is not held, a prejudice is always seen. CR.A/498/1987 7/7 JUDGMENT 8. Another factor which dilute the prosecution case is non-examination of the victim forthwith. The delayed examination also suggest post investigation doctrine. The medical evidence is also not at all support. Thus the findings of the trial Court cannot be said to be of the nature requiring interference in an appeal against the acquittal. Thus, we feel, no interference is called for. This Appeal is, therefore, dismissed. Bail bond cancelled. [BHAGWATI PRASAD, J.] [S.R.BRAHMBHATT, J.] pallav