THE STATE OF GUJARAT Vs. MANUBHAI @ TINABHAI SANKALBHAISOLANKI

JUDGEMENT

(1.) This appeal is preferred by the State of Gujarat challenging the judgment and order of acquittal dated 15th May, 2006 passed by the Additional Sessions Judge, Fast Track Court No. 2, Nadiad, rendered in Sessions Case No.22 of 2006 whereby at the end of the trial, respondent came to be acquitted for the offence punishable under Sections 363, 366 and 376 of the India Penal Code, since the prosecution failed to prove its case beyond reasonable doubt.

(2.) As per the case of the prosecution, the victim-complainant was residing with her brother and mother at village Nanimuvadi at Kesragam and she had studied up to 5th standard. The victim-complainant had one elder sister namely, Sudhaben and she was married. The marriage of the victim-complainant and elder sister of the complainant Sudhaben was performed on the same day. The victim though, earlier married, but she had taken divorce. Thereafter, she got remarried and was not living at her matrimonial home. The date of birth of victim was 18.8.1991. The Respondent-accused was residing in the same village and they acquaintance each other. On the night of 28th July, 2005, the complainant was called by the accused under false pretext and thereafter the accused took her near Express Highway and against her will, he committed rape over her. Thereafter, another incident of rape had taken place at the house of sister of the accused and accordingly C.R. No. I-139 of 2005 came to be registered with Mahemdavad Police Station for the offences punishable under Sections 363, 366 and 376. Upon committal of the case to the Sessions Court, it was tried in which the prosecution produced oral as well as documentary evidence and after examining 11 prosecution witnesses and 17 documentary evidences, the case resulted in acquittal of the respondent.

(3.) By taking us to entire record of the appeal including impugned judgment and order of acquittal under challenge, Mr. K.P. Raval, learned APP would contend that the prosecution has proved beyond reasonable doubt that the age of prosecutrix was below 16 years at the time of incident and in view of her school leaving certificate which was produced vide Exh:30 by the representative of the school, it is submitted that it is not necessary for the prosecution to establish the basis of recording of date of birth in register maintained by the school and further no obligation is cast for taking the victim for ossification test. As per Sec. 375 of the Indian Penal Code, existing at the time of offence, crime surfaced on record as it was with the victim who was below 16 years and was a minor. Further, not only the date of birth, but the testimonies of victim herself being PW2 coupled with testimonies of PW3 mother of the victim and medical evidence of the victim as well as FSL and Serological Report conclusively establish and prove the case of the prosecution. Even in a case like this, testimonies of victim herself about incident in question where offences under Sec. 376 of the Penal Code is made out, deserves to be accepted since the victim of rape is even on a higher pedestal than the injured witness. Learned APP has drawn attention of this Court to other attending circumstances emerging from the record and submitted that reasoning's of learned trial Judge for not believing the case of the prosecution based on some insignificant discrepancies, minor contradictions, etc. would fall into insignificance when she has in terms, deposed about the crime committed by the respondent. The submissions were supported by case laws cited by the learned APP and it is submitted that law laid down by the Apex Court about credence to be given to the testimonies of victim of rape and evidentiary value of certificate of date of birth issued by public authority in discharge of its public duty is not taken care of and nature of relationship of victim with respondent for which reference is made in the complaint and in testimonies again will be of no benefit to the accused when evidence for attracting ingredients of Sec. 375 of Penal Code have surfaced and established on record. Thus, date of birth of the victim being 18.8.1991 and headmaster of primary school confirmed about admission of the victim on 27.7.1999 in standard-I, therefore, on the date of offence she was not more than 14 years and therefore, this is a fit case where this Court would set aside the erroneous findings and conclusion of learned trial Judge of no guilt of accused.