Gujarat High Court
State Of Gujarat vs Chhaganbhai Ranabhai on 15 January, 2013
Author: D.H.Waghela
Bench: D.H.Waghela
STATE OF GUJARAT....Applicant(s)V/SCHHAGANBHAI RANABHAI GOHIL....Respondent(s) R/CR.MA/11613/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 11613 of 2012 In CRIMINAL APPEAL NO. 1235 of 2012 With CRIMINAL APPEAL NO. 1235 of 2012 ================================================================ STATE OF GUJARAT....Applicant(s) Versus CHHAGANBHAI RANABHAI GOHIL....Respondent(s) ================================================================ Appearance: MR K P RAVAL ADDL PUBLIC PROSECUTOR for the Applicant ================================================================ CORAM: HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 15/01/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI) Aggrieved by the judgment and order dated 01/05/2012 passed by the learned 5th Additional Sessions Judge, Bhavnagar in Sessions Case No.13 of 2011, acquitting the accused of the charges levelled against him for the offence punishable under Sections 376 and 506 (2) of the Indian Penal Code (for short IPC) after giving benefit of doubt, the applicant State of Gujarat seeks leave of this Court to appeal against the said judgment and order.
2. As per the prosecution case, about six months before the FIR came to be lodged, the accused person, who is brother-in-law of the prosecutrix whose husband had died, had after executing a threat of killing her son and the complainant, had sexual intercourse against her wishes at Akvada in the house of the prosecutrix for about four times and, as a consequence, she became pregnant. The case was registered against the accused. He was arrested, charge-sheeted and ultimately after appreciation of evidence and hearing the parties, learned trial Judge acquitted the accused.
3. Learned APP would submit that the accused took disadvantage of absence of husband of the prosecutrix who had died and since there was a persistent threat of life of son of the prosecutrix and her own by the accused, she had given in to the demands of the accused and thus there was absence of consent. It is submitted that this evidence was not appreciated by the learned trial Judge and, therefore, serious error has been committed by the Court below in acquitting the accused person.
4. Learned APP has made available to this Court copies of necessary oral as well as documentary evidence. We have examined and gone through the evidence with the assistant of learned APP.
5. In the evidence of PW No.3 Dr. Mayurbhai Rajendrabhai Gandhi examined at Exh.10, it was admitted that the prosecutrix stated in the history recorded by this witness that she was living in a joint family, but a threat was executed to her by her brother-in-law to secure her consent to have a sexual intercourse with him. Even, in a statement given before PW No.4- Dr.Devarshibhai Ashwinbhai Bhatt, examined at Exh.12 it was stated by prosecutrix that she was staying in a joint family, which included her mother-in-law, father-in-law, brother-in-law and sister-in-law as well as another brother-in-law, etc. She further stated that when her parents-in-law were not in the house, the respondent Chhagan had sexual intercourse with her for about four times.
6. Moreover, PW No.2 Madhuben Jivrajbhai, mother of the victim, admits in her cross-examination that on noticing a change in physical look of victim, because of pregnancy, neither she nor Manjuben and Chhayaben asked her about the pregnancy. This behaviour of the witnesses appears to be unnatural.
7. From the evidence on record, the learned trial Judge also found that despite being allegedly raped, the prosecutrix voluntarily went to the house of accused for fetching water, after ten days of the first forcible intercourse, where also she was allegedly raped. This behaviour of the prosecutrix is also unnatural. Thus, from the evidence on record, it appears that it was rightly recorded by the learned trial Judge that there was no evidence showing offence allegedly committed under Sections 376 and 506 (2) of the IPC by the accused.
8. Furthermore, it was admitted in the trial Court that father-in-law of the prosecutrix aged 70 years, mother-in-law aged 65 years, were not employed anywhere and for most of the times they were present at their residence; that sister-in-law being physically challenged and was always at home, as also the respondent accused is a married person staying with his wife and small children, therefore, possibility of prosecutrix being alone at the house was ruled out. Furthermore, it was also admitted by the prosecutrix in her cross-examination that at no point of time, she ever raised alarm while she was being allegedly raped.
9. It is also rightly recorded by the learned trial Judge that a period of six or seven months was a huge period during which on several occasions the prosecutrix had visited her parental home where she could have come out of the alleged threat and disclosed the facts to her parents, but she refrained from doing so. It is also required to be noted that the DNA Test of the child of the prosecutrix allegedly born out of the sexual intercourse by respondent accused was proved to be negative i.e. fatherhood of the respondent accused was not established.
10. Thus, looking to the overall circumstances and the evidence as discussed above, it cannot be said that the findings recorded by the learned Court below for acquitting the respondent are illegal or perverse so as to grant leave to the prosecution to appeal against the impugned judgment and order.
11. Under the circumstances, the application must fail and stands rejected. Consequently, the appeal stands dismissed.
(D.H.WAGHELA, J.) (G.R.UDHWANI, J.) sompura Page 5 of 5