STATE OF GUJARAT Vs. FAKIR GAFARSA MAHMADSA

JUDGEMENT

(1.) STATE of Gujarat, by way of present Appeal under Section 378 of the Code of Criminal Procedure, 1973, has challenged the judgment and order passed by learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 45 of 1993 by which the respondent -accused has been acquitted from the charges under Section 376 of Indian Penal Code and under Section 135 of Bombay Police Act. The brief facts arising from the case are as under: -

(2.) THOUGH the appeal was admitted way back in 1994 and notice of admission is served to the respondent -accused, he has chosen not to appear himself or through any advocate. However, with the help of learned APP Mr. Neeraj Soni, we have decided the matter finally. Learned APP Mr. Neeraj Soni appearing for the State has assailed the judgment of the trial court while acquitting the accused under Section 376 of IPC that the learned trial court ought to have convicted the accused on relying upon the deposition of Prosecutrix. She has categorically stated in her deposition that, against her will the accused has committed rape and has properly explained the delay in filing the FIR with the police and, therefore, the respondent -accused ought not to have been acquitted for the charges under Section 376 of IPC. She has categorically stated that the accused had a knife in his hand, and showing the knife and threatening her, she was subjected to the said offence. It was further argued that she has specifically stated that the accused had made intercourse with her against her will, and after completion of the offence, a threat was given not to inform anybody about the incident.

(3.) WE have examined the Record & Proceedings of the case. We have also gone through the depositions of witnesses who were examined by prosecution. It is a well settled principle of law that if the deposition of Prosecutrix is found to be a truthful one, a conviction can be based on her sole deposition. Now considering the deposition of Prosecutrix, who has been examined as Prosecution Witness No.1 at Exh. 10, it appears that, when she lodged a complaint, she has stated before the police that she was aged about 16 years. She has in her chief examination stated about the incident as per her say in the complaint Exh. 11 which was recorded with Mahuva Police Station. She has stated that, after the commission of offence, the accused tried to run away from the place of incident, and at that time she made shouts pursuant to which her grandmother Samjuben and her sister Godiben reached at the place of incident. Now, considering her cross examination, it appears that the time of incident is at about 9:30 a.m. and it also appears that the place of incident is situated on the main road wherein about 150 to 200 persons are working. Opposite to the place of incident, a chawl has been situated wherein 500 persons resides. She has admitted that a mill which is adjacent to the chawl is having about 200 women workers. She has further admitted that at the place where she is doing her labour work, about 40 to 50 women are working and full season with regard to collecting dry onions and filling up in the gunny bag was going on where she was working at the time of incident.