STATE OF GUJARAT Vs. AHIR PARBAT ABHA

JUDGEMENT

(1.) Indian Penal Code, 1860 - S. 376 Evidence of the prosccutrix found to be unreliable and not trustworthy - On facts it was clear that the prosecutrix was a willing party to the sexual intercourse with the accused - Evidence for coming to this conclusion discussed and appreciated - Held on facts that no offence was committed by accused-respondent Acquittal proper.

(2.) The State has filed the present appeal challenging the judgment and order passed by the learned Asstt. Judge, Jamnagar in Sessions Case No. 58 of 1983, acquitting the respondent for the offence punishable under Sections 376, 342, 323 and 506(2) of the I.P.C. The prosecution case may briefly be stated as under:

(3.) The complainant-Sarojben, P.W. 5 at Exh. 19 has stated in the complaint that she had come to Mitapur from her native place Parangiyum, Tamil Nadu in search of work. On 25-5-1983, at about 2.30 p.m. she had gone to fetch water from the water tank of Mitapur police chowky. At that time a man residing in a house behind the police chowky came there. The man was slim in body having broad eyes and a long moustache, wearing a white shirt and white pants. He told her that if she wanted to fetch water, she may do so from the bathroom of his house. When that man was talking to her, four other girls around 10 years of age, namely, Bhavna, Bhadra, Asaya and Selvi were present. The complainant went to the house of that man with those girls with the water pots. No sooner she entered the house of that man, he closed the door. The girls standing outside knocked at the door. Thereafter that man opened the door, asked them to keep mum and also threatened to beat them. With the result, that the girls ran away and the man closed the door again. The complainant put the pot below the water tap in the bathroom and opened the tap. At that time, that man dragged her by catching hold of her shoulder. The complainant objected to the act of the man. During the dragging, her sari was torn. When the complainant started shouting for help, the man gagged her mouth with cloth, lifted her and threw her on a bed. The complainant was also slapped on her cheek and was also threatened with dire consequences if anyone was told about the act. The complainant was frightened and, therefore, she did not raise any alarm. The man, thereafter took off his pants and underwear and by force, raised the sari and petti-coat of the complainant, and raped her. During the intercourse, the green cotton petticoat worn by the complainant was also torn. The complainant, being physically weak, did not oppose to the sexual intercourse committed by that man. After committing the sexual intercourse, the complainant was allowed to go. The complainant, emptied the water pot in the bathroom, washed her hands as well as private parts and after wiping away water from her body with her petticoat, went to her residence with the empty pot. While she was just recovering from the shock of the unfortunate incident, the leaders of Bhunga K. Naina Kumbhar and Tanmayya and two others came and offered consolation. As her husbad A. Thangaraj had gone to Dwarka wherefrom he had returned around 11.30 at night, a complaint was filed on the next day, i.e. 26th May 1983. The P.S.I., Okha Police Station, on the basis of the said complaint, reached the place of the incident, made panchnama, recovered the bed-sheet as well as clothes of the complainant, recorded statements of Selvi, Bhavana and other witnesses and sent the accused as well the complainant for medical examination and also sent the clothes for chemical analysis. On receiving the reports, the accused was arrested. After making necessary investigations, and on the basis of prima facie case found against the accused, the investigating officer submitted the charge-sheet before J.M.F.G., Dwarka, who ultimately committed the case to the Court of Sessions, as the offence involved was exclusively triable by the Sessions Court. The learned Asstt. Sessions Judge, Jamnagar, framed the charge Exh.-2 against the accused. The learned Judge, after considering the evidence produced by the prosecution, which failed to prove the charges against the accused, acquitted the respondent. Hence the present appeal.