J.U. Mehta, J.
1. The appellant who is the original accused in Sessions Case No. 122 of 1990 on the file of the Court of the Addl. Sessions Judge, Junagadh, has approached this Court in appeal through jail against the order of conviction and sentence passed on 26-2-1991, for the offences punishable under Sections 342 and 376 I.P.C. The appellant was charged and convicted for confining the prosecutrix Vijay and committing rape without the consent and against the will of Vijaya.
2. The case of the prosecution was that the complainant Kunverben, widow of Soma Pancha was staying at village Ankolwadi situated in District Junagadh. Her husband expired eight years before the incident and that she was having two sons and two daughters. According to the prosecution, on 19-7-1990 the complainant unverben had gone to village Nageshri and when she retuned to Akolwadi on 22-7-1990, she was informed by her youngest daughter Bena that on 19-7-1990 she and her sister Vijaya had gone to the field of Bachubhai Soni for labour work along with the present accused Jaga who is the brother of Bhaga Rama, as the brother of Jaga i.e. Bhaga had hired the field of Bachubhai Soni. According to the prosecution, at about 10 a.m. Jaga had stated to Vijaya to prepare loaves at the room situated in the Wadi and, therefore, Vijaya had gone for preparing loaves. Bhaga had gone to another field and Bena and the accused were ploughing the field. According to the prosecution, after one hour or so the accused said to Bena that he is going to take grass for the bullocks and then went to the room where Vijaya was preparing loaves. It is further the case of the prosecution that within short time shouts of Vijaya came from the room to save her and, therefore, Bena went there running. At that time, the brother of the accused, viz. Bhaga also reached at the room. The doors of the room were got opened and Vijaya and the accused came out. Vijaya was weeping and said to Bhaga and Bena that the accused threw her and even though she resisted, the accused committed sexual act. It is the case of the prosecution that Bhaga said to Bena and Vijaya not to disclose this incident to anybody. It is further the case of the prosecution that till both the sisters viz. Bena and Vijaya worked in the field and returned to their house at night. It is the case of the prosecution that on knowing about the incident, the complainant Kunverben tried to call Jaga to her house through Fulabhai, but the accused did not turn up. On 26-7-1990 at 11-45 a.m. the complaint was lodged at Talala Police Station with regard to the present incident. After completing the investigation, the police submitted the charge-sheet in the Court of the learned Judicial Magistrate, F.C., Veraval and thereafter the Court of the learned Judicial Magistrate, F.C., Veraval committed the case to the Court of Session.
3. The accused pleaded not guilty to the charge and after recording the evidence, the Court of the learned Addl. Sessions Judge, Junagadh convicted the accused for the offences punishable under Sections 342 and 376 I.P.C. and sentenced him to suffer rigorous imprisonment for six months and fine of Rs. 1000/- and in default, rigorous imprisonment for two months for the offence punishable under Section 342 I.P.C. and imposed rigorous imprisonment for seven years and fine of Rs. 1500/- and in default, rigorous imprisonment for one year for the offence punishable under Section 376 I.P.C.
4. Mr. Yagnik, learned Advocate appointed in this case submitted that the trial Court committed an error in appreciating the evidence of the prosecutrix Bai Vijaya, Kunverben and Benaben. He submitted that the trial Court ought to have appreciated that in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence of rape. He submitted that it is well established that in a case of rape the evidence of the prosecutrix must be corroborated and in absance of any corroboration, the order of conviction should not be passed. He submitted that in the instant case, there is no corroboration to the evidence of the prosecutrix and the conduct of the prosecutrix also shows that the prosecution had failed to establish the offence of rape or wrongful confinement against the accused.
5. On the other hand, Mr. Shukla, learned A.P.P. appearing for the State vehemently supported the judgment of the trial Court and submitted that there is no inherent defect in the judgment of the trial Court and the trial Court has relied upon the evidence of the prosecutrix and this Court should not interfere.
6. Mr. Yagnik read before us the evidence led by the prosecution in this case.
7. In this case, the prosecution has examined Vijaya Somatbhai at Ex. 16, Bena Somatbhai at Ex. 17, and Kunverbn, mother of Vijaya at Ex. 14. The prosecution has also examined Dr. Arvindbhai at Ex. 7 who examined the accused and also Dr. Ramesh Varde at Ex. 11, who was working as the Medical Officer, Junagadh at the relevant time and examined the prosecutrix Vijaya. In this case, Panchas Ratilal Bechar, Ex. 18 and Kanji Gobar, are examined to prove the seizure of Chaddi of the accused, but they have not supported the case of the prosecution. The prosecution has also examined Panchas Mansukhpari at Ex. 23 and Dilip kumar at Ex. 24 to prove the seizure of the clothes of the prosecutrix Vijaya, but they have also not supported the prosecution. The prosecution has also examined Ajitbhai Gameti at Ex. 28 from Forensic Science Eaboratory to show that the clothes of the accused and the petticoat of the prosecutrix were stained with blood and human semen. Apart from the aforesaid withesses, the prosecution has examined Fulchand at Ex. 27. Who has not supported the case of the prosecution, Head Constable R. C. Patil at Ex. 36, Police Constable Trikambhai at Ex. 26 and P. S. I. Laxmansing Sudavat at Ex. 37 who investigated the case after taking over further investigation from Head Constable Patil are examined.
8. In the case of Bharwada Bhogiabhai Hirjibai v. State of Gujarat reported in AIR 1983 SC 783 : 1983 Cri LJ 1096 the Supreme Court has laid down as under (Para 11):–
If the evidence of the victim does not suffer from any basic infirmity, and the ‘Probabilities-factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification; Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the ‘probabilities-factor’ is found to be out of tune.
It is also to be remembered that in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses falsely implicated the accused. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence of rape. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. In absence of that, the accused is entitled to the benefit of every reasonable doubt.
9. In the instant case, we have to see whether it is established beyond doubt that the sexual intercourse was committed by the accused by the accused with the victim girl without her consent and against her will, in order to prove the offence under Section 376 I.P.C. and that there is any evidence of wrongful confinement as alleged by the prosecution.
10. Keeping in mind the aforesaid principles, now we proceed further to discuss the evidence led by the prosecution in this case.
11. We would like to discuss first the evidence led by the prosecution with regard to the age of the prosecutrix. For the purpose of proving the age of the prosecutrix, the material witnesses are the mother of the prosecutrix, viz. Kunverben at Ex. 14 and Dr. Ramesh Varde at Ex. 11. Kunverben has stated in her evidence in Para 1 that the age of the prosecutrix Vijaya is 17 years. So far as the evidence of Dr. Ramesh Varde is concerned, he has stated that he examined the prosecutrix on 26-7-1990. She had come with a Police Yadi and a lady constable with a view to examine the prosecutrix for the purpose of fixing the age and also to examine whether rape was committed on her. According to this witness, he examined the prosecutrix and according to the opinion of this doctor, she was between the age of 18 to 20 years. He has also produced Ex. 12 wherein he has given his opinion in writing with regard to the age and it is stated in that opinion, Ex. 12, that according to X-rays, her age is above 18 years and below 20 years. In the the absence of any other documentary evidence, viz. birth Certificate or the School Leaving Certificate, more reliable evidence, according to our opinion, is that of the doctor, which is based on X-rays and, therefore, we are of the opinion that the prosecution has failed to prove that the prosecutrix was minor i.e. below the age of 18 years.
12. Now, we proceed to discuss the evidence with regard to the offence of rape and wrongful confinement of the prosecutrix by the accused.
13. The prosecution has examined Kunverben, mother of the prosecutrix at Ex. 14, to show that on the relevant date, she had gone to Nageshri and when she returned, Bena had narrated the incident to her and thereafter, when she asked Vijaya, she had also narrated the incident to her and thereafter she filed the complaint at Ex. 15. If we look to the evidence of Vijaya, it is borne out that on the next day of return of Kunverben, only Bena narrated the incident, but the prosecutrix had not narrated anything to her mother until she asked the prosecutrix after Bena narrated as to what had happened. It is taken out from the cross-examination of Bai Kunverben that she and the accused are of the same caste. It is also suggested by the defence, which is denied by this witness, that Vijaya and the accused were going for labour together. The suggestion made on behalf of the defence is denied by this witnesses that since 6 to 7 months before the incident, the accused and Vijaya had relations. It is stated in her cross-examination that Bena had told about the incident and thereafter she had stated about the incident to Fulabhai. Now, Fulabhai who is examined at Ex. 27, has not supported Bai Kunverben and the prosecution has treated him as hostile. From the evidence of Kunverben it appears that the prosecutrix never narrated the incident to this witness until she was asked after narration of the incident by Bena. This reflects on the conduct of the prosecutrix. It will be natural conduct of a daughter to narrate the incident to her mother immediately on seeing the mother when she returned home. Instead of this, on the next day of the arrival of Kunverben, Bena says about the incident and only when Kunverben asked the prosecutrix ‘what happened’, Vijaya says about the sexual act committed by the accused against her will. This reflects on the conduct of the prosecutrix.
14. The prosecution has examined the prosecutrix Vijaya at Ex. 16. According to her evidence, on the day of the incident, she, her sister Bena and the accused Jaga along with his brother Bhaga had gone for labour work at the Wadi of Bachubhai Soni. She has also stated that on that day her mother had gone to village Nageshri. She has further stated that at about 10 to 11 a.m. the accused had asked her to prepare loaves and, therefore, she had gone in the room situated in the Wadi for preparing loaves and that her sister and the accused were ploughing the field and Bhaga, the brother of the accused had gone to another field for ploughing. She has stated that when she was preparing loaves, the accused came and caught her by shoulder and took her in the room and that in the room the accused committed rape by force on the cot which was lying in the room. She has stated that at that time she had shouted to save her and on hearing her shouts, Bhaga and Bena had come there and they got opened the door and she was taken out. According to her evidence, she had stated about the incident to Bena and Bhaga and Bhaga told her that she should not disclose this incident to anybody. The witness has stated in her evidence that on that day they worked in the field till the evening and in the evening, they returned to their house. She has stated that after four days her mother returned from Nageshri and that the incident was narrated by Bena to her mother. She has also stated that thereafter, her mother had asked about the incident to her and she had narrated. Thereafter the complaint was filed at Talala Police Station. She has also stated that she was examined by the doctor. In the cross-examination, she has stated that they had come to the Wadi for labour work between 6 to 7 a.m. and they worked in the Wadi on that day till 8 to 9 p.m. She has stated in her cross-examination that when the accused was taking her in the room, she had given shouts to her sister and she tried to go to her sister, but the accused had caught hold of her. She has also stated that around the field, there were other fields also, but they were away. She has also stated that she has not stated the incident to any other persons. She has stated in her cross-examination that she and the accused are of the same caste. She has denied the suggestion made on behalf of the defence that she was to be married with the accused.
15. Another witness examined by the prosecution is Bena Somatbhai at Ex. 17. She is the sister of the prosecutrix, Vijaya. She has stated in her evidence that she had gone along with her elder sister Vijaya for labour work at the Wadi of Bachu Bapa. She has stated that on that day her mother had gone to Nageshri. She has further stated that she herself, Vijaya, Jaga and Bhaga were ploughing the field. She has stated that thereafter Bhaga had gone for ploughing another field. It is her say in the examination-in-chief that Jaga had asked Vijaya to prepare loaves for them and she was sent to a room which was situated in the Wadi. She stated that she and Jaga were ploughing the field and thereafter, Jaga, the accused told her that he is going for cutting the grass. She has further stated that on hearing the shouts of her sister, she had gone near the room and that on hearing the shouts of Vijaya, Bhagabhai had also come there. She has also stated that after Vijaya was taken out of the room, she had stated to her that Jaga committed rape on her. She has also stated that Bhaga and Jaga both said to them not to disclose this incident to anybody. According to the evidence of this witness, her mother came two to three days after the incident and thereafter, she had narrated the incident to her mother. It is proved by the defence that the story regarding Jaga having stated to Vijaya to prepare loaves was not there in her earlier version before the police. It is taken out in the cross-examination of this witness that there are other fields around the Wadi of Bachubhai Soni and many persons were working in the said fields. She has stated in her cross-examination that Bhaga came one minute after she reached. She has also stated that on the shouting by Vijaya, no persons from the round about locality had come. In the cross-examination, it is stated by her that after the incident she had no talk with Vijaya. It is also stated that her mother came after two days of the incident and after her mother came, on the next day in the morning she had told about the incident to her mother. Therefore, from the evidence of Vijaya and Bena, it is clear that after the incident Vijaya and Bena remained in the field and worked up to 8 to 9 p.m., even though, according to the evidence of these witnesses, the incident occurred in the morning at about 11 a.m. Not only that, but after their mother Kunverben returned to Ankolwadi, neither Vijaya nor Bena has narrated the incident to their mother. From the evidence of this witness, it reveals that there are other fields also around the wadi of Bachubhai Soni and persons were working in those fields. According to the evidence of Bena and Vijaya, Bhaga, the brother of the accused had gone to another field for ploughing and on hearing the shouts of Vijaya, Bhaga had come near the room. According to P.S.I. Laxmansinh, there are other fields around the place of the incident. P.S.I. Laxmansinh has stated that on the west there is a field of Vallabh, on the north there is a field of Aher Pola Khoda and on the South, there is a field of Patel Popat Arjan. Laxmansinh has stated that he had recorded the statements of those persons. But none of them is examined by the prosecution. If according to Vijaya and Bena, Bhaga had come at the place of the incident on hearing the shouts of Vijaya, it is not probable to believe that others could not have heard the shouts. Not only that, but the conduct of Vijaya and Bena is quite unnatural inasmuch as according to the said witnesses, after the incident they stayed in the field up to 8 to 9 p.m. and worked in that field. It is further to be appreciated that when the mother of the prosecutrix returned to Ankolwadi, Bena narrated the incident to her mother on the next day.
16. Mr. Shukla, learned A.P.P. appearing for the State submitted that the prosecution has produced the petticoat put on by the prosecutrix on that day and the evidence of Ajitbhai Gameti at Ext. 28 shows that there were semen stains on the petticoat, which corroborated the say of Vijaya that sexual act was committed by the accused. He has also submitted that the evidence of Dr. Ramesh discloses that sexual intercourse was committed with the prosecutrix. Now, if we refer to the evidence of Dr. Ramesh at Ex. 11, he has stated in his cross-examination that it cannot be said, if any person is examined after 24 hours, that rape is committed. It is worth noting that as per the opinion given by Dr. Ramesh, which is produced at Ex. 12, no external mark of injury was there on the face, chest and peroneum. Hymen was torn and there was old tear. Therefore, there were no injuries on any part of the body of the prosecutrix, including back or legs or head or hands. The prosecutrix is a young girl of 18 years and doing labour work. If there had been any resistance on her part, obviously she would have received various injuries on her legs or face, especially when she was forcibly taken by the accused in the room by catching hold of the prosecutrix’s shoulder. Thus, there is no medical evidence to support the version of the prosecutrix that sexual act was committed on her forcibly against her will. As stated above, looking to the conduct of the prosecutrix and the fact that there is no corroboration so far as the medical evidence is concerned to support her version, the evidence of the prosecutrix becomes unsafe to rely upon. The ‘probabilities-factor’, therefore, in this case is out of tune. The first and foremost circumstance that can be looked for in cases of this kind is the evidence of resistance which one would naturally expect from a prosecutrix unwilling to yield to sexual intercourse forced upon her. Such resistance may lead to tearing of clothes, infliction of personal injuries and even injuries on her private parts and we find no corroborative evidence of such type. In our opinion, therefore, in the instant case, the prosecution has not established beyond doubt that the sexual intercourse was committed by the accused with the victim girl without her consent and against her will. The learned Addl. Sessions Judge, in our opinion, committed a serious error in not applying the ‘probability test’ which is against the prosecution, viz. the conduct of the prosecutrix after the incident i.e. to remain in the field up to 8 to 9 p.m. and to work in the field and not to narrate the incident even after going home to the neighbours or to any other persons and not to narrate the story to Kunverben till the next day of her return to Ankolwadi. It will be the natural conduct of a prosecutrix on whom rape is committed to tell her mother immediately after returning to her house. Bena, the sister of the prosecutrix stated to her mother on the next day after she came to Ankolwadi and Vijaya narrated the incident to her mother only when Vijaya was asked by her. The fact that there are no injuries found on the person of the prosecutrix and also no tearing of clothes of the prosecutrix shows that there was no resistance whatsoever from the prosecutrix.
17. It is also required to be noted that the prosecution has come with a case that there were semen stains on the petticoat produced by the victim. Now, the panchas have not supported the case of the prosecution, so far as the production of the petticoat by Vijaya is concerned. Not only that, but if we refer to the evidence of P.S.I. Laxmansinh at Ex. 27, he has stated that the victim had produced the petticoat in the presence of the Panchas and there were blood like stains in the area of one foot. He has not referred to the stains of semen on the petticoat. He has also not stated about taking the signatures of the Panchas on the slips taken by him and affixing the same at the time of sealing the baggy putting the petticoat therein. Under these circumstances the evidence of the person from the Forensic Science Laboratory cannot be relied upon to show that there were stains of semen on the petticoat. In our opinion, the learned Judge has committed an error in relying upon the said circumstance as corroborative piece of evidence.
18. In view of the aforesaid evidence led by the prosecution, it cannot be said that the prosecutrix was confined against her will in the room of the Wadi of Bachubhai Soni by the accused.
19. In the result, this appeal filed by the appellant-accused is allowed. The judgment and order of conviction and sentence passed by the trial Court for the offences punishable under Sections 376 and 342, I.P.C. are quashed and set aside and the appellant-accused is acquitted of the offences with which he was charged and convicted. The appellant-accused is ordered to be set at liberty forthwith if not required in connection with any other case. Fine, if paid by the accused, is ordered to be refunded to him.