MUKESH SHOBHARAM GUPTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) ORIGINAL accused No.2 and Original accused No.1 and 3 have preferred Criminal Appeal No.959 of 2000 and Criminal Appeal No.975 of 2000 respectively, challenging the common judgment and order dated 29.9.2000 passed by learned Additional Sessions Judge, Court No.11, Ahmedabad City convicting the accused persons for offences under Sections 363, 366 and 376 of the Indian Penal Code. Mukesh Shobharam Gupta � original accused No.2 has been sentenced for offence under Section 376 of IPC for R.I. for 7 years and fine of Rs.2,000/, in default R.I. for 2 months, original accused No.1 � Subhash Vasantrai Sonkushre has been sentenced for offence under Section 376 of IPC for R.I. for 7 years and fine of Rs.2,000/, in default R.I. for 2 months, and for the offence under Section 363 and 366 of IPC for RI for 3 years and fine of Rs.1,000/, in default RI for one month, and original accused No.3 Dineshbhai Joitaram Raval has been convicted for R.I. for 7 years and fine of Rs.2,000/, in default R.I. for 2 months for the offence under Section 376 of IPC.

(2.) BRIEF facts of the case of the prosecution are as under:

(3.) WE have heard learned advocates appearing for the respective parties and have examined record and proceedings of the case and have gone through the depositions of about six witnesses and several documentary evidence. Now considering the deposition of Dr.Shilpa Yagnik, P.W.3 Exh.13, as well as Dr.Harishchandra Jadav P.W.4 Exh.19, it has come on the record that when the prosecutrix was brought before her on 11.1.2000, a detailed history was given by her in which she has alleged that the accused persons have committed offence of rape. She found that there were two to three radish bruises on her breasts which is reflected in the certificate issued by this witness. She found no stains either on a person or on her clothes and she was physically well developed girl. The hymen was found old raptured. It comes in the deposition of Dr.Harish that, as per the Ossification test of the prosecutrix, the age of the girl can be said to have been between 13 to 16 years. Now Dr.Shilpa Yagnik has admitted in crossexamination that there are reasons and reasons for rapture of hymen and the bruises which were found on the breast of the prosecutrix were of 2 to 3 old days and it can be sustained by any type of force. She has further stated that the secondary character of the prosecutrix were developed as like an adult woman. Now considering the deposition of prosecutrix Sunita Babubhai Gajjar P.W.1 Exh.10 till she was declared hostile, has not stated that she was kidnapped by the accused persons and thereafter committed the offence of rape. The complainant who is father of a minor daughter, in his deposition does not support the case of prosecution at all. The FSL report Exh.37 discloses that the blood group of prosecutrix is of "O" group, while accused Subhash and Mukesh are of "A" group, and accused Dinesh blood group is "B". The undergarment of the victim which was sent for FSL for report which suggests that there is bloodstain of "A" group on it. It is pertinent to note that the clothes of prosecutrix i.e. underwear clothes of prosecutrix was collected by the police through panchnama Exh.25 on 13.1.2000 i.e. after 3 days of recording the complaint, and 20 days after she reaches at her home and about two months from the date when she left the home as per the complaint. Except on the undergarment, no bloodstain or semen were found on other clothes like pajama, kurta etc. As stated hereinabove, accused Subhash and Mukesh are having "A" blood group and accused Dinesh is having "B" blood group. We are aware that it is not necessary that in a case of rape, bloodstains or semen stains must be found on the clothes of prosecutrix. But, as stated hereinabove, the peculiar facts of this case suggest that the clothes which are collected after more than 20 days having bloodstain of "A" group creates doubt in the investigating agency. As far as injuries of bruises are concerned, they are two to three days old. The girl was with her father since last 20 days and, therefore, in our opinion, the accused cannot be connected with the said injuries. Nonsupport to the prosecution either by the prosecutrix or her complainant father, and in absence of any other corroboration, we are of the opinion that the learned Sessions Judge has unnecessarily put lot of weight on the history given by the girl to the doctor. Neither the girl nor her father support the theory put forward by the prosecution. We are of the opinion that the appellants accused cannot be convicted only on the hearsay evidence.