2020 Supreme(Guj) 295

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Kalubhai Virambhai – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No. 28 of 2004
Decided On : 13-03-2020

Point of Law:
Some delay has occurred in the lodging of the FIR but keeping in view the trauma suffered by the victim, her statement that she had regained her composure only in the evening cannot be disbelieved particularly in view of the evidence of PW-8.

Headnote:

Criminal Procedure Code, 1973 - Section 209 - Indian Penal Code - Sections 376, 511 and 506(2) – Offence of Rape – Appeal aggrieved and dissatisfied with judgment and order of conviction and sentence accused for offence punishable rigorous imprisonment - Prosecution case is that complainant prosecutrix on who was watering plants of cotton by way of using dragger machine of water in sum of her field and after work is over she stepped down into pit near well where machine was kept - At that time accused came from behind and by putting his handkerchief on her mouth caught her and made her fallen on ground - It is alleged that accused had tried to commit rape over her - At that time immediately pushed accused - It is further alleged that accused has given threat to her that if informed anybody regarding incident he would kill her - It is alleged in FIR that at that point of time complainant had later on informed her husband regarding fact of attempt to rape by accused to her and accordingly they decided to file complaint and has filed complaint –Held, Evidence court is clearly found that complaint has been lodged after almost days of happening of incident - is impossible to have any sign of commission of offence at place of occurrence and therefore if no any sign of happening of incident is found in panchnama of scene of offence that fact alone cannot be a ground to disbelieve version of prosecution – However emerges out from evidence that entire prosecution case is based on evidence of so-called eye witness prosecutrix - Prosecutrix has informed him and accused has given threat to this witness of consequences - On re-appreciating entire evidence on record court clearly transpires that Trial Court has not considered all these aspects in its proper perspective and has committed serious error of facts and law - As impugned judgment and order warrants interference and order of Court is not sustainable in eyes of law which deserves to be quashed and set aside – Appeal allowed(Paras 29 and 31).

Facts of the Case:

Complainant-prosecutrix on 05.10.2002 who was watering the plants of cotton by way of using the dragger machine of water in the sim of her field and after the work is over, she stepped down into the pit near the well, where the machine was kept. At that time, the accused came from behind and by putting his handkerchief on her mouth, caught her and made her fallen on the ground. It is alleged that the accused had tried to commit rape over her. At that time, she immediately pushed the accused.

Finding of the Court:

Evidence court is clearly found that complaint has been lodged after almost days of happening of incident - is impossible to have any sign of commission of offence at place of occurrence and therefore if no any sign of happening of incident is found in panchnama of scene of offence that fact alone cannot be a ground to disbelieve version of prosecution – However emerges out from evidence that entire prosecution case is based on evidence of so-called eye witness prosecutrix - Prosecutrix has informed him and accused has given threat to this witness of consequences - On re-appreciating entire evidence on record court clearly transpires that Trial Court has not considered all these aspects in its proper perspective and has committed serious error of facts and law - As impugned judgment and order warrants interference and order of Court is not sustainable in eyes of law which deserves to be quashed and set aside.

Result: Appeal allowed