CR.A/331/1993 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 331 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= BHARVAD HAMIR VIHABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ANIL S DAVE for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/01/2008 ORAL JUDGMENT 1. The appeal arises out of a judgement and order dated 25.2.1993. The appellant was the original accused. He was convicted under Section 376 read CR.A/331/1993 2/4 JUDGMENT with Section 506(2) of the Indian Penal Code. He was sentenced to three years rigorous imprisonment and also directed to pay fine. 2. Broadly stated, prosecution case was that the appellant original accused was residing in a house which was next to the house in which the complainant prosecutrix and her husband were residing on rent. About 10 days before filing of the complaint i.e. on 27.7.1990 the appellant entered the house of the complainant when her husband was away for work. He forcibly had sexual intercourse with her and also threatened to kill her if she disclosed to anybody. As per the complainant, the appellant had such forcible intercourse with her on few previous occasions also. 3. At the outset, it may be noted that though the complainant had made detailed disclosure about the alleged incident in her complaint lodged before the police, in her deposition before the Court at exh.6 as PW1, she did not support the prosecution. In short the complainant, turned hostile and disowned the submissions made by her before the police. She was permitted to be cross examined by the APP. The fact however, remains that PW1 did not narrate before the Court the incident of alleged rape by the appellant. 4. So is the case with Lilaben-PW2, exh.27. She was CR.A/331/1993 3/4 JUDGMENT the sister of the complainant who had before the police stated that her sister had informed her about the alleged rape. She however, turned hostile and did not support prosecution. Even the husband of the complainant Labhu Chaturbhai- PW3 in his deposition exh.8 before the Court did not support the prosecution. 5. In addition to the said witnesses, prosecution examined Dr. Ravjibhai-PW4 at exh.11. He had undertaken the physical examination of the appellant. He had found no external signs of injury on body of the appellant or on his private parts. 6. Dr. Mangalsinh-PW5 was examined at exh.14. He had carried out physical examination of the complainant. He also did not find any signs of any injuries on the entire body of the complainant including her private parts. 7. Despite the above evidence, learned Sessions Judge convicted the appellant opining that possibly to avoid publicity the complainant did not give correct evidence before the Court. 8. To my mind, entire premise of convicting the appellant is completely baseless. Conclusion of the learned Session Judge is based on surmises and conjectures. Neither the complainant nor her sister, nor her husband supported the CR.A/331/1993 4/4 JUDGMENT prosecution before the Court. In that view of the matter, to my mind there was no evidence available with the Sessions Court to convict the appellant. Medical evidence as noted was of no use. Doctors only opined that both appellant as well as complainant were physically matured. This however, would not support prosecution case particularly when there are no physical signs of injury on body of either of the two persons. Though presence or absence of injuries may not be conclusive in the ordinary case, in the case like the present one wherein witnesses for the prosecution did not support the prosecution case, conviction cannot be rendered without any evidence at all. 9. To my mind learned Sessions Judge committed a serious legal error in convicting the appellant for offence punishable under Section 376 of the Indian Penal Code. None of the ingredients were established. There was no substantive evidence before the Court to convict the appellant. 10.In the result, appeal succeeds. His conviction is therefore, set aside. Bail bond stands cancelled. (Akil Kureshi,J.) (raghu)