Haresh Ghatorbhai Satwara vs State of Gujarat

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R.M. Chhaya, J.—This appeal is directed against the judgment and order of conviction dated 10.03.2011 passed by learned Additional Sessions Judge (Presiding Officer, F.T.C. No. 2, Bhavnagar) Camp at Botad in Sessions Case No. 150 of 2009 whereby sentencing the appellant for rigorous imprisonment of seven years and fine of Rs. 2,000/-, in default, further rigorous imprisonment of six months or the offence punishable under Section 376 of the Indian Penal Code, 1860 (the IPC).

F.I.R., being C.R. No. I-104 of 2009 came to be lodged against the present appellant for the alleged offence under Section 376 of the IPC. It is the case of the prosecution that the appellant asked the prosecutrix to come to the house of one of the friends of the appellant viz., Hitesh, wherein even though the prosecutrix raised protest the appellant committed forceful intercourse on the bed, which was there in the house of the friend of the appellant, when no one was there. That the appellant had been at the house of his friend, Hitesh, wherein the prosecutrix went her friend named Pooja. That friend of the prosecutrix viz. Vimuben requested the prosecutrix and her friend Pooja to bring her son from her matrimonial house. That while going to fetch the son of the friend the appellant met the prosecutrix and her friend-Pooja near a pan galla where the appellant instructed the prosecutrix to come to the house of his friend-Hitesh. That the prosecutrix went to the house of the friend of the appellant (Hitesh) along with her friend-Pooja where the aforesaid incident took place between 7:30 to 8:00 p.m. On 04.06.2009. It is also the case of the prosecution that a lady from the neighbour knocked the door and took the prosecutrix back to her home and informed the incident to the brother of the prosecutrix, who was present in the house. In the aforesaid factual basic facts, the F.I.R., was lodged and the appellant was arraigned as an accused for the offence under Section 376 of the IPC.

On completion of the investigation, charge-sheet came to be filed before the Court of Judicial Magistrate, First Class, and as the offence being triable by Sessions Court, the same came to be committed to learned Sessions Court, Bhavnagar and the case was registered as Sessions Case No. 150 of 2009. The trial Court framed the charges at Exh. 6, which were read over to the appellant, who pleaded not guilty and claimed to be tried.

Learned Additional Sessions Judge (Presiding Officer, F.T.C. No. 2, Bhavnagar) Camp at Botad, recorded the evidence of the prosecution, wherein the prosecution examined about 16 witnesses. The appellant has not examined any defence witness nor he has put himself in the box. The thereafter further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 wherein the appellant denied all the allegations. Appellant also submitted written submissions (Exh. 59/A). Prosecution also produced documentary evidence in the form of birth certificate of the school of the prosecutrix (Exh. 26), birth certificate issued by Gram Panchayat of the prosecutrix (Exh. 27), Medical Certificate of the appellant-accused (Exh. 36), the medical certificates of the prosecutrix (Exh. 39, 40 and 42) and also serological report of the FSL (Exh. 51) and the trial Court, after appreciation of the evidence, passed the judgment of conviction and sentenced the appellant as aforesaid. Aggrieved by the same this appeal has been filed by the appellant.

Heard Mr. P.P. Majmudar with Mr. Vipul Sundesha, learned advocates for the appellant, and Mr. Alkesh N. Shah, learned Additional Public Prosecutor for the respondent-State.

Learned advocate for the appellant has taken this Court through the impugned judgment and evidence-both oral as well as documentary, in detail. It was contended that except version of the prosecutrix, there is no other evidence on record whereby even version of the prosecutrix can be corroborated. It was further submitted that even if the statement of the prosecutrix is taken at its face value the same does not disclose true and correct facts and version of the prosecutrix is completely bereft of truth and the sole testimony of the prosecutrix is wholly unreliable. It was submitted that the prosecutrix has improved her version in her examination-in-chief and in her cross-examination. It was submitted that thus the prosecution has not been able to prove the allegations leveled against the appellant to its hilt. Relying upon version of the prosecutrix and serological report it was submitted that version of the prosecutrix is not corroborated with the serological report (at Exh. 51). It was therefore submitted that the prosecution has not been able to prove guilt of the appellant beyond reasonable doubt and only on sole testimony of the prosecutrix the appellant has been wrongly convicted. It was further submitted that even the medical evidence was not supported the case of the prosecutrix and the prosecutrix has thereafter come out with the story of the incident. Reliance was placed upon the judgment of the Apex Court in the case of State of Rajasthan Vs. Babu Meena, and it was submitted that in the instant case also the sole testimony of the prosecutrix is wholly unreliable and therefore the trial Court has committed an error in appreciating the evidence before it. Reliance was also placed upon the judgment of Division Bench of this Court in the case of Amrutbhai Bachubhai Padhar Vs. State of Gujarat & Anr., 2011 (1) G.C.D. 15 (Guj.) (DB) and it was submitted that case of the prosecution is based on the sole testimony of the prosecutrix which is untrustworthy and therefore the appellant, in absence of any corroborative evidence by way of medical and serological report, could not have been convicted for the offence of rape. It was further submitted that the important witnesses have not been examined on behalf of the prosecutrix. Attention was drawn of this Court that the case of the prosecution is based on the prosecutrix going to the house of friend of the appellant viz. Hitesh wherein other relatives and families were present. It was the case of the prosecution that the prosecutrix went to the house of Hitesh, friend of the appellant, at the instance of the present appellant with her friend, Pooja, however even though the prosecution has examined, Pooja, she has not supported the case of the prosecution. It was further submitted that version of the prosecutrix is also not believable on the ground that the same is unnatural. Referring to the deposition of the prosecutrix it was submitted that even though as per the case of the prosecution, the lady residing adjacent to the house of Hitesh i.e., scene of offence came the prosecutrix asserts that she is not aware about the name of that lady but at the same breath the prosecutrix even knows name of the husband of that lady. It was submitted that thus, version and the testimony of the prosecutrix is wholly unbelievable and the appellant has thus been wrongly convicted by the trial Court on the basis of such piece of evidence and in absence of any cogent and realistic evidence on record. It was therefore submitted that thus, the impugned judgment deserves to be quashed by allowing the appeal setting aside the order of conviction and sentence.

Per contra, Mr. Alkesh N. Shah, learned Additional Public Prosecutor for the respondent-State, has supported the impugned judgment and order of the trial Court. It was contended that as such there is no contradiction and improvement in the testimony of the prosecutrix and the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt. Relying upon the deposition of PW-5, the prosecutrix, and also the Medical Officer, PW-13 (Exh. 41), so also the oral testimony of the Investigating Officer, PW-14 (Exh. 44) it was submitted that the prosecutrix was a minor and considering the evidence, more particularly the testimony of the prosecutrix it cannot be said that the testimony of the prosecutrix as a sole testimony is in any manner unreliable. It is therefore asserted that the trial Court has committed no error in appreciation of evidence on record. It was submitted that in light of the aforesaid evidence, the prosecution has successfully been able to prove the case beyond reasonable doubt and no interference of this Court is called for in its appellate jurisdiction and the appeal deserves to be dismissed.

This Court perused the original record and proceedings of the trial Court and has also thoroughly gone through the oral testimony of all the 16 Pws as well as the documentary evidence, which has produced by the prosecution. This Court has also gone through the further statement made by the appellant-accused.

On perusal of the testimony of the Pws, it is found that over and above the prosecutrix the prosecution has examined PW-6, Ghanshyam Khodabhai, father of the prosecutrix, (Exh. 25), PW-7, friend of the prosecutrix named Poojaben Dansingbhai (Exh. 28), PW-8, mother-in-law of the prosecutrix''s aunt Lilaben (Exh. 29), PW-9, uncle of the prosecutrix, Somabhai Khodabhai, (Exh. 30), PW-10, principal of the school, Kanubhai Aapabhai Gida, (Exh. 31), PW-11, 12 and 13, doctors, who examined the appellant and the prosecutrix, both at Botad and Bhavnagar (Exh. 34, 38 and 41). Prosecution has also relied upon deposition of PW-14, the Investigating Officer, Devendrasinh Ramsinh Chudasama, (Exh. 44), PW-15, Head Constable, Panchubha Manubhai, (Exh. 54) and PW-16, Investigating Officer, Nasirkhan Anvarkhan Pathan (Exh. 56).

It may be noted that the prosecution has also examined PW-1, Shri Bavalbhai Harjibhai, (Exh. 13), who was panch of the place of offence. However, he has been declared hostile. Similarly prosecution has also examined PW-2 of discovery panchnama, Dhirubhai Kalubhai Sonagara (Exh. 16), who has also turned hostile and has not supported the case of the prosecution. Prosecution has also examined the pancha, who remained present as regards cloths of the prosecutrix, PW-3, Mahipatsinh Meghrajsinh and the prosecution has also examined another PW-4, Shri Bhadreshbhai Pratapbhai, (Exh. 20).

On perusal of the deposition of PW-1, Shri Bavalbhai Harjibhai, (Exh. 13), it clearly transpires that he has not supported the case of the prosecution at all. Even in his cross-examination by the prosecution nothing remarkable has brought on record. Similarly on perusal of deposition of PW-2, Shri Dhirubhai Kalubhai Sonagra, (Exh. 16), he also has not supported the case of the prosecution and in the cross-examination the prosecution has not been able to bring nothing on record against the present appellant.

On perusal of the oral deposition of PW-3 and PW-4, Shri Mahipatsinh Meghrajsinh and Shri Bhadreshbhai Pratapbhai (Exh. 17 and Exh. 20) respectively, the same relates only to the procedure, which was followed by the prosecution as regards the clothes of the prosecutarix and the appellant-accused.

On perusal of deposition of PW-6, Shri Ghanshyambhai Khodabhai Chauhan, (Exh. 25), who happened to be father of the prosecutarix, it appears that he has deposed that age of the prosecutarix is thirteen years. It is further deposed by the said witness that his wife and he had gone to the bazaar for purchasing vegetables and the prosecutarix and her friend-Pooja were at his residence. It is further averred by the said witness that at about 7 O''clock when he came back, wife of Bavalbhai informed about the fact that the appellant had committed rape upon his daughter and that he had seen with her own eyes. It is further deposed that he asked his daughter i.e., the prosecutarix, who informed him that the appellant committed rape near the house of Lilaben. It is further deposed by this witness that thereafter he approached Police Station and thereafter the prosecutarix was taken to Sonawala Hospital and then on the next date to Sir T Hospital, Bhavnagar. He has further deposed that friends of the prosecutarix went with her, as informed by the prosecutarix. The said witness has also produced on record the birth certificate issued by the Primary School (Exh. 26) wherein date of birth of the prosecutarix is 15.06.1998.

In his cross-examination the said witness has stated that Lilaben informed that he had seen the offence being committed and except that no one informed the said witness about the incident. He has admitted in his cross-examination that he has no information about the incident. The said witness has further denied the suggestion of the defence that the appellant has not committed rape upon the daughter of the witness. He has also denied the suggestion that because he has some enmity with father of the appellant, a false compliant is filed through his daughter.

On perusal of deposition of PW-9, Shri Somabhai Khodabhai (Exh. 30), it appears that he is uncle of the prosecutarix. On perusal of his deposition it appears that he has deposed that he came to know about the incident when the son of Ghanshyam came to his house. He has stated in his examination-in-chief that he was further informed by his brother, Ghanshyambhai, that wife of Bavalbhai has informed him that the appellant has committed rape upon his daughter. He has further deposed that on asking about the same the prosecutarix has also stated that the appellant committed rape upon her. He has further deposed that thereafter they went to the Police Station where his statement was recorded by the police. That thereafter the prosecutarix was taken to Sonawala Hospital and thereafter panchnama was prepared of the scene of offence and the cloths and mattress were recovered by the police.

In his cross-examination he has admitted the fact that the appellant and the said witness belong to the same caste. He has also admitted that the appellant and Ghanshyambhai, father of the prosecutarix, resides in the same street, just opposite to each other. He has stated that he has never stated before the police that Ramji informed about the rape. He has further stated in the cross-examination that Ghanshyambhai and Lilaben are related to each other and sons of Ghanshyambhai addressed Lilaben as aunt. He has further stated that the panchnama of the scene of offence was prepared and the mattress and cloths were recovered by the police. He has further stated in his cross-examination that he had scene strains of semen on the mattress as well as cloths and nicker of the prosecutarix. He has further stated in his cross-examination that the police informed him about the same and therefore there was no scope of his showing it to the police. In his cross-examination he has further admitted that he and his wife Jyotstnaben as well as his brother Ghanshyam as well as sister-in-law, Rukshmaniben, and the prosecutarix went to Botad Police Station, Sonawala Hospital and thereafter to Bhavnagar Hospital. He further denied the suggestion of the defence that his brother, Ghanshyambhai gave narration before the police and the doctor. He has also denied that only because the prosecutarix is his niece he has given false deposition.

PW-10, Shri Kanubha Apabhai Gida, (Exh. 31), Principal of Primary School No. 5 at Botad, has stated, that without mentioning the birth date of student on the basis of the earlier record of the earlier school Exh. 26 birth certificate is issued by the school, which bears his signature.

In his cross-examination he has mentioned that the birth date of the prosecutarix is 07.08.1995. He has stated that when the prosecutarix was admitted in the school no birth certificate was produced. He has further admitted that the birth date mentioned in the school is General Register and the Guardian Form is different.

The prosecution has also, as stated above, has examined Smt. Lilaben, wife of Bavalbhai (Exh. 29). In fact this witness has turned hostile and has not supported the case of the prosecution. However, it may be noted that PW-6, Ghanshyambhai, father of the prosecutarix as well as PW-9, Somabhai, (Exh. 30), uncle of the prosecutarix, have deposed that it was Lilaben, who informed about the incident.

On perusal of the deposition of Lilaben as it is, she has deposed that she is not aware about the incident. She has stated in her examination that her house is adjacent to the house of Geetaben Nagjibhai. She has deposed that she has not seen the incident. She deposed that she did not inform Ghanshyambhai, father of the prosecutarix. She even denied of having seen any boy or girl. She has further deposed that she does not even know the appellant. She has stated that she has not seen any boy or girl doing any illegal activity. She has also stated that she has not gone to the house of Ghanshyambhai and that she has not informed about the incident. In fact she has further stated that she is not aware of anything as regards the incident.

Even in her cross-examination by the prosecution she has denied the incident. She has stated that she has not stated in her police statement anything about the incident. On perusal of the cross-examination it transpires that this witness has totally denied the incident. She has also stated that she has not seen anything in the adjacent house of Geetaben.

The prosecution has also examined, PW-7, Pooja Dansing, (Exh. 28) who, according to the case of the prosecution was the friend of the prosecutarix, who accompanied her to the house of Hitesh, where rape upon the prosecutarix was committed by the appellant. This witness has also not supported the case of the prosecution and was declared to be hostile. In her initial deposition she has denied the case of the prosecution.

In her cross-examination she has also denied the suggestion put forward that she has not mentioned before the police statement that the prosecutarix told her to accompany to the house of Hitesh and has also denied that both of them went to house of Hitesh. She has also denied in her cross-examination that she stood outside the house. She has also denied that on seeing Haresh the prosecutarix met him and she stayed outside the house and the said Haresh and the prosecutarix were sleeping on a coat and she restrained Haresh not to do the said act. She also denied the suggestion that as neighbour, Lilaben came, out of fear she went away.

Prosecution has also examined the prosecutarix, Shitalben d/o. Ghanshyambhai Chauhan, as PW-5 (Exh. 23). In her examination she has stated that her date of birth is 15.06.1998. That on 04.06.2009 when she was alone at her home, her friend-Jyotsna called her at about 7.00 p.m., and they both went to the house of Jyotsna where Vimuben, Sangitaben, Kailashben and Poojaben were there. That Vimuben told the prosecutarix to bring her son at her matrimonial house. That she along with Pooja went to the house of Jyotsnaben. That while going towards the house of Jyotsnaben the appellant was standing at the pan shop of one Dasbhai when the appellant asked her to come to the house of Hiteshbhai. That there Pooja told her that let us go to the house of Hiteshbhai. That while reaching the house of Hiteshbhai she found the appellant to be there and the appellant caught hold of her hand and laid her on the coat/bed, which was there. The prosecutarix thereafter deposed that the appellant removed all her clothes and then removed his clothes and forcefully committed intercourse with her. It is the say of the prosecutarix that she is not aware when Pooja left the house of Hiteshbhai. Prosecutarix has further deposed that mother-in-law of his aunt came there and scolded the appellant and asked her to come to her house. That she is not aware about the name of mother-in-law of her aunt but she knew that she is wife of one Bavalbhai. She has further deposed that the mother-in-law of her aunt informed about the incident to her brother and other persons at home and thereafter her father called the appellant and scolded him. She further deposed that complaint was thereafter lodged and the police took her to the house of Hiteshbhai where one mattress was seized, which has been identified by the prosecutarix. That thereafter she was taken to Botad Government Hospital for investigation where samples of blood, saliva, pubic hair and vaginal swap were taken. She has further deposed that the doctor inquired and she gave the history that the appellant committed rape forcefully. She has further deposed that the incident took place. She deposed that she is 11 years old and also identified the appellant. She has further deposed that on the next date the police brought her to the Sir-T Hospital for medical examination where doctor examined her.

In her cross-examination the prosecutarix has admitted the fact that she has not stated before the police that she did attempt to relieve herself however she could not. She also admitted that she has not mentioned in the complaint that till his lust was satisfied the appellant did not leave her. She has also admitted the fact that she has not mentioned in the complaint that the mother-in-law of her aunt informed about the incident to her brother and she has also stated that she has also stated in the complaint that she informed about the incident to her father and other about the house and she also denied that she has not mentioned in the complaint that her father called Haresh and scolded him.

She has stated in her cross-examination that Kailashben, Vimuben and Poojaben are not her relatives. She has stated that the appellant belongs to the same caste and she has also stated that they are not relatives. That when she reached house of Jyotsnaben she did not inform Jyotsnaben that the present appellant has called her at the house of Hiteshbhai. She has further admitted the fact that Pooja told her that let us go to the house of Hiteshbhai as Haresh called us. She has further stated that at that time she did not refuse to go to the house of Hitesh. She has admitted that the house of Hitesh and the house of the mother-in-law of her aunt has common wall. She has admitted that when she entered the house of Hitesh, Pooja was with her. She has further deposed that when she went to the house of Hitesh no one was present at the house. She has further deposed that she did not ask why she was asked to go to the house of Hitesh. She has further deposed in her cross-examination that she tried to shout when the appellant compelled her to sleep on the bed, however, the appellant pressed her mouth. That no injury was caused on her body during the incident. She has specifically deposed that strains of semen were found on her nicker. She has denied the suggestion of the defence that no such incident had taken place. She further deposed that she has born at Village Jadila, however, she has denied that her date of birth is 17.08.1995. She has also denied the suggestion of the defence that there is some enmity of her father and father of the appellant. She has also denied that because of such difference the present complaint is lodged. She has also denied the suggestion that the appellant has not committed rape upon her.

Prosecution has examined Dr. Khodabhai as PW-11 (Exh. 34), who was working as Medical Officer at CHC Botad. In his examination-in-chief he has stated that he examined the appellant on 15.06.2009. That in the history the appellant has stated that he has relation with Sheetal since about one and half years. In his examination-in-chief he has stated how he has carried out the investigation of the appellant. He has further deposed that he has collected blood, saliva public hair semen and sent them to Forensic Science Laboratory, Junagadh. In his cross-examination he has stated that certificate (Exh. 36) the appellant had not given the history that he had established physical relation with Sheetalben. He has further deposed in his cross-examination that while examining the appellant no injury or abrasion was found on the pennis of the appellant. He has also stated that the presence of stigma found upon the penis of the appellant.

Prosecution has also examined Dr. Mehul Parmar, who was working as Gynecologist at Sir T Hospital at Bhavnagar as PW-12 (Exh. 38), who examined the prosecutarix. The said witness in his examination-in-chief has stated that as per the history given by the patient i.e., the prosecutarix on 04.06.2009 she went to the house of his friend Jyotsnaben at about 7 pm. He has stated that thereafter the friend asked her to bring her child from her house and while returning one boy met her on the road, who asked her to go to his friend''s house. That the prosecutarix further gave history that she declined to do so, however, she was forcefully taken to the house of the friend of the appellant wherein the appellant had forcefully established physical relation. That further history was given by the prosecutarix to the effect that at that time she shouted because of which a lady from the neighborhood came and separated both of them. That thereafter she went to her house and then to the Police Station.

In his cross-examination this witness further deposed that he undertaken physical examination of the prosecutarix wherein it was found that the hymen was regular and there was possibility of it being broken and the position of the character at 7 O''clock and has further deposed that no marks of fresh injuries were found on the body of the prosecutarix and has opined that the possibility of intercourse cannot be ruled out.

In the cross-examination he has stated that the patient examined by him was capable of protesting. He has further deposed that he had mentioned in the certificate (Exh. 40) that the possibility of intercourse cannot be ruled out. He has admitted the fact that no external injuries were found on the body of the patient examined by him. He has also admitted the fact that there were no marks or abrasion or any other mark on the outer part of the body of the patient. He has admitted the fact that the reason for broken hymen may be some other reason also. He has also deposed that he did not take any samples of semen. He has also deposed that he did not say as to the time when the hymen of the patient was broken. He deposed in his cross-examination that generally if 11 year old girl is subject to forceful intercourse there is possibility of injuries on the side of the vagina. He has admitted the fact that no such marks of injuries on the side of vagina was found when the patient was examined by him. He further deposed that he cannot say that no sign of semen were found upon vagina of the patient examined.

Prosecution has also examined Dr. Pareshbhai Jerambhai Lakhani, working as CHC Botad, as PW-13 (Exh. 41). He has deposed that the prosecutarix was brought to the hospital on 04.06.2009 accompanied by her aunt Jyotsnaben Somabhai. That on asking about the incident the prosecutarix has given history that the appellant took her to his friend''s house and forcibly committed intercourse and this history was given by the prosecutarix herself. That no marks of injuries were found on the body of Sheetalben. That the secondary sex character were found to be developed. That no injuries were found upon the private part of the patient. That the hymen was not present and the vagina was one finger loose. He has thereafter narrated that the samples of blood, vaginal swab, saliva, public hair, were sent for FSL examination.

In his cross-examination the witness has admitted the fact that no signs of injuries were found upon face, breast or the private part. That he cannot say that hymen of the patient was broken before what time. He deposed that presence of semen is found till 48 hrs., of intercourse. He has however stated that he cannot say whether the presence of semen was found in the vagina of the patient. He has denied the suggestion of the defence that if forcible rape is committed upon her, girl of 11 years swelling takes place on her private part. He has further stated that it is true that no signs of injuries were found upon the vaginal region of the patient.

Prosecution has examined, Devendrasinh Ramdevsinh Chudasama, Police Inspector Botad Police Station, PW-14, (Exh. 44). He has deposed that he investigated the offence of rape, which was registered on 04.06.2009 and arrested the appellant. That the medical examination of the appellant was also conducted. That the articles which were seized from the scene of offences. That he sent samples collected by the doctors for analysis to FSL, Junagadh and has also stated that the serological report was received, which were Exh. 45 to Exh. 53. He has stated in his examination-in-chief that he took statement of Lilaben. That Lilaben has stated that the door of the house of her neighbour Geetaben was open and a small girl was standing there. She stated that on asking that girl she ran away and she found chappals in the courtyard because of which she got suspicious and thereafter she entered the house and when she came to the ossari, she found a boy and a girl sleeping on a bed engaged in bad work. She has further stated that she does not know the name of the boy but was son of Satwara and Sheetal, daughter of Ghanshyambhai Satwara was there. She further stated that she scolded both of them and that she told that she would inform her parents. She had further stated that the boy went out of the house after putting his chain of the trouser and as she was ashmed she came back and went to the house of Ghanshyambhai. That she further stated that son of Ghanshyambhai was at his house wherein she informed about the incident. She has also identified the mudammal.

In his cross-examination he has stated that the complainant and the accused are from the same caste. He is also admitted that both of them stay in the same street of Shankarpara area. He further stated there are many residential houses and pan biddi shops and grocery shops in Shankarpara area. He has also admitted that house of Hitesh abuts on Botad-Khas Road, which is a public road. He has also admitted that many persons and vehicles pass by the said road. He has also admitted that there are street lights at Shankarpara on road going towards Khas. He has also admitted that houses of Hiteshbhai Nagjibhai and Lilaben Bavlabhai are together. It is also admitted that if anybody shouts in the house of Hiteshbhai it can be heard in the house of Lilaben. He has denied as to whether Lilaben and the prosecutarix are related to each other. He has further stated in his cross-examination that when he took over the investigation he has not obtained any evidence from school or panchayat regarding birth date of the prosecutarix. He has admitted that he took statement of Hiteshbhai. He has also admitted the fact that as per the FSL report semen were not found on the mattress, nicker of the prosecutarix as well as trouser of the appellant-accused, Haresh. However, he denied the suggestion that the statement of Lilaben was written himself. He has also denied the suggestion of defence that the panchnama of scene of offence and recovery of the cloths was prepared at the police station. He also denied the fact that before the incident, time and again dispute arose between father of the prosecutarix and the father of the accused. He has also denied that even though there is no evidence for offence under Section 376 of the IPC and false charge-sheet was filed in the court.

The prosecution has also examined, Shri Panchubhai, Head Constable, Botad Police Station as PW-15 (Exh. 54). The said witness has deposed that he registered the F.I.R., as alleged by the prosecutarix. He has also deposed that he did not mention about the incident in the station diary. He has deposed that further investigation was carried out by Shri Chudasama, Police Inspector. In his cross-examination he has stated that except the complaint of the complainant no other procedure was undertaken by him. He has stated that when the complaint was taken the prosecutarix, her father, uncle and aunty were present. However, he has denied the suggestion of the defence that he has written the complaint as narrated by the father of the prosecutarix. On a question asked by the court whether before lodging the complaint did he verify whether the complaint is correct or not. The said witness has stated that as PSO he has to only record the complaint and is not his duty whether the same is correct or false. He has denied the fact that the complaint can be lodged only after such verification. It is also further denied that he has filed false complaint against the accused.

The prosecution has also examined Shri Nasirkhan Anvarkhan Pathan, who was then working as Police Inspector, PW-16 (Exh. 56). He has stated that as Police Inspector, Chudasama went on leave he undertook the investigation of the offence registered as C.R. No. I-104 of 2009. He has stated that he has taken statement of Pooja. He has further stated that while investigation was going, as Shri Chudasama resumed, the investigation was again handed over to him. He has further stated that during investigation, the uncle of the prosecutarix, Somabhai, gave birth certificate of Sheetal Ghanshyambhai, the prosecutarix. According to the same, her birth date is 15.06.1998. He has stated that he took statement of Poojaben Danabhai, wherein she told that let us go to Hiteshbhai house and both of them went to the house of Hiteshbhai where Haresh was present. She further stated that she stood outside and Haresh took Sheetal inside the house and thereafter both were sleeping on the bed. She has further stated that on seeing she told Haresh not to do such act. She has also stated that Haresh was doing bad activity with Sheetal. She has stated that at that moment the neighbour Lilaben came and therefore out of fear she ran away.

In his cross-examination he has admitted the fact that the complainant and the accused belong to the same caste. He has also admitted the fact that both the houses are situated at Botad on Khas Road in Shankarpura area, which is opposite to each other. He has also admitted the fact that there are other residential houses near the place of offence. He has also stated in his cross-examination that he took statement of witness Ghanshyambhai Khodabhai on 06.06.2009. He has also stated that he did not take statement of Somabhai after 5-6 days of the incident.

In his cross-examination the uncle of the prosecutarix, Somabhai on the basis of birth certificate of the prosecutarix (Exh. 26) has admitted the fact that birth date mentioned in the certificate is 15.06.1998 and the date of issuance is mentioned as 12.06.1998. He has stated that date of issue is prior to the birth date. He has also attempted that how it has happened. He has further stated that he has not taken any statement of the authority, who issued such certificate. He has also stated that he did not make any attempt to obtain birth certificate of the prosecutarix from the record of Jadila Gram Panchayat. He has further denied the suggestion of the defence that the statement of Poojaben (witness) is written by him on his own.

In addition to these, the prosecution has also produced birth certificate of the prosecutarix issued by the school dated 12.06.1998 (Exh. 26), birth certificate of Gram Panchayat issued on 17.08.1995 (Exh. 27), medical certificate of the accused (Exh. 36), dated 15.06.2009, medical certificate of the prosecutarix Exh. 36, 37, 39 and 42.

It may further be noted that the further statement of the appellant-accused was taken as Exh. 7.

Learned Additional Sessions Judge (Presiding Officer, F.T.C. No. 2, Bhavnagar) Camp at Botad after considering the evidence on record has come to the conclusion that as the age of the prosecutarix was less than 16 years and the deposition given by her is believable and natural, relying upon the judgment of the Apex Court in the case of Rafiq Vs. State of U.P., as well as judgment of the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, has come to the conclusion that the prosecution has proved the offence as alleged even though there are no injuries which were found on presence of the prosecutarix.

On re-appreciation of the evidence on record it clearly appears that the friend of the prosecutarix, PW-7, Poojaben Dansingbhai, examined (Exh. 28) as well as the lady (Lilaben Bavalbhai), who has alleged to have seen the prosecutarix with the appellant in the house of Hitesh, who has examined PW-8 (Exh. 29) has not supported the case of the prosecution. It is no doubt that the prosecution has not been able to prove that the age of the prosecutarix is less than sixteen years, serological report (Exh. 51) indicates that the mattress, which was examined as Specimen No. A does not have presence of semen. Similarly the nicker of the prosecutarix came to be examined as Specimen No. B1 also indicates that no presence of semen was there. Considering all other items which were sent for serological report indicate that presence of semen was not found. Similarly perusal of the deposition of the prosecutarix though the prosecutarix has stated in her deposition that the appellant committed rape upon her, at the same breadth she has also stated in her examination (Exh. 23) she has also identified the mattress and is also stated in her deposition that nicker had presence of semen. In addition to these it is found that the prosecution case is based on the fact that the prosecutarix first went with her friend-Poojaben (PW-7) to the house of Jyotsnaben and it is also further deposed by the prosecutarix that when she went to the house of Jyotsnaben other women i.e. Vimuben, Sangitaben, Kailashben and Poojaben were present. Prosecution has not examined such independent witnesses and, Poojaben, who has not supported the case of the prosecution.

Even on re-appreciation of evidence as a whole, PW-7, Poojaben, as well as PW-8, Lilaben, have not supported the case of the prosecution at all. As far as evidence of PW-7, father of the victim, and PW-9, uncle of the victim, is concerned, the case of the prosecution is that it was Lilaben (PW-8), who informed about the incident, however, said Lilaben has not supported the case of the prosecution at all, as aforesaid. As observed earlier, the medical evidence as well as serological report do not support the case of the prosecution. The history given before the Medical Officers is also in variance. Thus, considering the evidence as a whole, the prosecution has not been able to establish the guilt against the appellant. The sole testimony of the prosecutarix is not at all believable and the version of the prosecutarix does not collaborate with the medical as well as the serological reports.

Considering the ratio of the Apex Court in the case of State of U.P. Vs. Anil Singh, deposition of the prosecutarix as well as considering the other piece of evidence, including medical evidence as well as serological report, ring of truth is not found in the deposition of the prosecutarix and it creates doubt about its veracity, benefit of which should go to the appellate-accused. In absence of any direct evidence and in absence of any corroborative evidence, the learned Sessions Court has erred in appreciating the evidence on record and hence, the same requires interference by this Court in its appellate jurisdiction. In addition to this, the prosecution has not even examined the other independent witnesses and therefore merely on the medical opinion to the effect that, possibility of intercourse cannot be ruled out it cannot be said that the prosecution has been able to prove the guilt to its hilt. Learned advocate for the appellant relying upon the case of State of Rajasthan Vs. Babu Meena, has rightly contended that the testimony of the prosecutarix is not found to be trustworthy and at least it creates doubt, benefit of which should go to the appellant-accused. The deposition of the Investigating Officer cannot be made basis of conviction when the other piece of evidence speaks contrary to it.

For the reasons recorded in the judgment, the appeal is allowed. The judgment of conviction and sentence recorded by the learned Sessions Judge is set aside. Appellant-accused, Haresh Ghatorbhai Satwara, is ordered to be set at liberty forthwith, if not required in any other case. Direct service is permitted.

Record and proceedings be sent forthwith.