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2020 DIGILAW 450 (GUJ)

Kalubhai Virambhai v. State of Gujarat

2020-03-13

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 10.11.2003 passed by the learned Additional Sessions Judge, Gondal in Sessions Case No. 15 of 2003 (hereinafter be referred to as “the Trial Court”) whereby, the learned Additional Sessions Judge has convicted the accused for the offence punishable under Sections 376, 511 and 506(2) of the Indian Penal Code (hereinafter be referred to as “the IPC”) and sentenced him to undergo rigorous imprisonment for seven years and fine of Rs. 200/- in default, to undergo simple imprisonment of one month for the offence under Section 376 of the Indian Penal Code and rigorous imprisonment of three months and fine of Rs. 200/- in default, to undergo simple imprisonment of 15 days for the offence punishable under Section 506(2) of the Indian Penal Code, the appellant accused have preferred present appeal. 2. Brief facts of the prosecution case is that the 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. It is further alleged that the accused has given threat to her that if she informed anybody regarding the incident, he would kill her. It is alleged in the FIR that at that point of time, the complainant had later on informed her husband regarding such fact of attempt to rape by the accused to her and accordingly, they decided to file the complaint and accordingly, she has filed the complaint. 3. On the basis of the said incident, the FIR came to be lodged for the offence punishable under Sections 376 and 506(2) r/w. Section 511 of the Indian Penal Code against the accused and he was arrested. 4. After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate First Class for the alleged offences. 3. On the basis of the said incident, the FIR came to be lodged for the offence punishable under Sections 376 and 506(2) r/w. Section 511 of the Indian Penal Code against the accused and he was arrested. 4. After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate First Class for the alleged offences. Thereafter, as one of the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it was registered as Sessions Case No. 78 of 1999. 5. The charge against the accused came to be framed by the Trial Court for the aforesaid offence. The charge was denied by the accused and pleaded for trial. 6. To prove the case, the prosecution has examined the following witnesses:- PW-1 Prosecutrix Complainant Exh.9 PW-2 Dr. Manish Babulal Chunara Medical Officer Exh.11 PW-3 Hiteshbhai Chanabhai Ghadhiya Husband of Prosecutrix Exh.14 PW-4 Dr. Rashmi Durlabhji Shukla Medical Officer Exh.15 PW-5 Rameshbhai Ravjibhai Eye Witness Exh.18 PW-6 Chhaganbhai Ranchhodbhai Panch Witness Exh.19 PW-7 Ramjibhai Oghadbhai Rupareliya Panch Witness Exh.21 PW-8 Rajendrasinh Pratapsinh Jadeja Police Constable Exh.23 PW-9 Bhachubha Gagubha Solanki P.S.I. Exh.26 7. The prosecution has also produced the following documentary evidence:- S. No. Particulars Exhibit 1. Complaint 10 2. Yadi for physical examination of the victim 12 3. Medical certificate of the victim 13 4. Yadi for medical examination of the accused 16 5. Medical certificate of the accused 17 6. Panchnama of the body 20 7. Panchnama of the scene of offence 22 8. Order of investigation 24 9. Copy of Entry No. 14 of station diary 25 10. Arrest panchnama of the accused 27 8. After closure of the evidence, the statement of the accused under Section 313 of the Criminal Procedure Code, 1973 came to be recorded, wherein also, the accused have denied of having committed any offence and stated that he has been falsely implicated in the alleged offence. 9. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused for the offence under Sections 376 and 506(2) of the Indian Penal Code and, ultimately, passed the judgment and order of sentence as referred to hereinabove. 10. Heard Mr. Dharmesh Nanavaty, learned advocate for the appellant and Ms. 9. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused for the offence under Sections 376 and 506(2) of the Indian Penal Code and, ultimately, passed the judgment and order of sentence as referred to hereinabove. 10. Heard Mr. Dharmesh Nanavaty, learned advocate for the appellant and Ms. Jirga Jhaveri, learned Additional Public Prosecutor for respondent-State at length. Perused the materials placed on record including the impugned judgment and order of the Trial Court and decisions cited at the Bar. 11. Mr. Nanavaty, learned advocate for the appellant has submitted that the charge has been framed by the Trial Court is regarding the attempt to commit rape. While reading the entire oral and documentary evidence, learned advocate for the appellant has submitted that as per the version of the prosecutrix, after incident, immediately, one person, namely Ramesh came there and she has informed the fact of attempt to commit rape by the accused on her. He has submitted that the prosecutrix has changed her version in the FIR and has improved her statement in deposition. He has submitted that in view of narration made by the prosecutrix in her evidence coupled with the facts of the depth of the pit, it is not possible for two persons to laid down on the ground. While inviting the attention of the Court to the contents of the deposition of the prosecutrix, learned advocate for the appellant has submitted that the narration of the facts of attempt to commit rape is not possible as there is no place available in the pit. While reading the FIR coupled with the deposition of the prosecutrix, he has submitted that the fact narrated by the prosecutrix is not possible in such small place. He has submitted that as per the version of the prosecutrix, at that time, the accused has not only threatened her but has given threat to the witness Rameshbhai. According to him, there is delay of more than 25 days in lodging the FIR and this delay is not explained. 11.1 While referring to the evidence of the doctor as well as husband of the victim, panch witnesses and police witnesses, he has submitted that there is no cogent and reliable evidence on record against the accused. According to him, there is delay of more than 25 days in lodging the FIR and this delay is not explained. 11.1 While referring to the evidence of the doctor as well as husband of the victim, panch witnesses and police witnesses, he has submitted that there is no cogent and reliable evidence on record against the accused. He has submitted that without considering the entire evidence on record, the Trial Court has committed serious error of facts and law in convicting the accused. 11.2 While inviting attention of this Court to the evidence of Rameshbhai, who is alleged to be important witness, he has submitted that the said witness has not supported the basic version of the prosecution and he has turned hostile and, therefore, his evidence is not helpful to the prosecution case. He has submitted that there is no explanation of delay which has occurred in filing the complaint. He has also stated that the evidence on record is not satisfactory and the version of the prosecution witness is not trustworthy. 11.3 Mr. Nanavaty, learned advocate for the appellant has relied upon the following decisions and has urged to allow the present appeal by quashing and setting aside the impugned judgment and order of the Trial Court: 1. Sanjaybhai Hamirbhai Dethriya vs. State of Gujarat, 2015 AIJEL-HC 234678 2. Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC 791 3. Pralhad S/o Pundlik Nawade vs. State of Maharashtra rendered by the Bombay High Court in Criminal Appeal No. 115 of 2016 dated 22.03.2018 4. Mahavirsinh Bharatsinh Gharasiya vs. State of Gujarat, 2018 (1) GLR 512 5. Ajitkumar Kumarsinh Bhagora vs. State of Gujarat, 2019 (0) AIJEL-HC 240436 6. Parkash Chand vs. State of Himachal Pradesh, AIR 2019 SC 1037 12. Per contra, Ms. Jirga Jhaveri, learned Additional Public Prosecutor for respondent- State has vehemently submitted that the Trial Court has not committed any error of facts and law in convicting the accused and imposing sentence upon him. While reading the evidence on record, she has submitted that the evidence of the doctor is consistent regarding the attempt to commit the rape by the present accused. While reading the evidence of the prosecutrix, she has submitted that the evidence of the complainant- prosecutrix is trustworthy and in a case like the present one, the conviction can be based solely upon the evidence of the prosecutrix. While reading the evidence of the prosecutrix, she has submitted that the evidence of the complainant- prosecutrix is trustworthy and in a case like the present one, the conviction can be based solely upon the evidence of the prosecutrix. She has submitted that there is no need of corroboration to the evidence tendered by the prosecutrix. According to her submission, though the witness Rameshbhai Ravjibhai, PW-5 at Exhibit 18, has turned hostile, but it reveals from his evidence that he was present at the place of occurrence at the time of occurrence. She has submitted that when there was threat of life, the prosecutrix might not have courage to file the complaint instantly. According to her version, as soon as the prosecutrix got courage, she has informed her husband immediately and, thereafter, the complaint came to be filed. 12.1 Regarding the decisions cited by the learned advocate for the appellant, Ms. Jhaveri, learned Additional Public Prosecutor has submitted that the facts narrated therein are clearly different from the facts of the present case. She has submitted that in this case, there is delay of 20 days in filing the complaint and in the decisions relied upon by the defence side, the fact is that there were delay of more than seven months. 12.2 Ms. Jhaveri, learned Additional Public Prosecutor has also submitted that in the present case, the complainant has specifically attributed the act of having attempt to commit rape to the accused and there is no need of any corroboration to the version of the prosecutrix. 12.3 While relying upon the decision in the case of Viswanathan and Others vs. State Rep. by Inspector of Police, Tamil Nadu, (2008) 5 SCC 354 , especially paras-19 and 20, learned Additional Public Prosecutor has submitted that the impugned judgment and order of the Trial Court is just and proper and the same does not warrant any interference and she has prayed to dismiss the present appeal. 13. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. 13. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 14. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 15. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 16. In the case of Sanjaybhai Hamirbhai Dethriyu (supra), this Court has held and observed in para-14 as under: “14........the Court again is required to consider whether the conviction could be sustained. It is well settled that if there are two views possible on appreciation of material and evidence on record, view which is favourable to the accused and plausible view, has to be accepted or believed. It is well settled that if there are two views possible on appreciation of material and evidence on record, view which is favourable to the accused and plausible view, has to be accepted or believed. It is also well settled that before recording of the conviction, the Court even at the appellate stage has to consider on appreciation of evidence that it does not leave any doubt about the innocence of the accused. In the facts of the case, as recorded hereinabove, there are certain gray areas where the evidence is either lacking or falling short of establishing the guilt of the accused beyond reasonable doubt. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment in case of Mookkiah and Another vs. State Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , wherein it has been observed referring to the judicial pronouncement that, there are no limitations or restrictions on exercise of power by the appellate court. The appellate court is free to arrive at its own conclusion on scanning the material and evidence. In fact, the appellant court can review the conclusion arrived at and it is obliged to scan through the evidence. It has also been referred that there is no distinction in the approach envisaged while dealing with the appeal against the conviction or acquittal.” 17. In the case of Parkash Chand (supra), the Apex Court has held and observed in paras-5 and 6 as under: “5. The first question we have to consider is the impact of delay of nearly 7 months in lodging the complaint with the police. The appellant seeks support mainly from the judgment of this Court in the case of Vijayan vs. State of Kerala, 2008 (14) SCC 763 . The High Court in the impugned judgment has on the other hand relied upon the judgment of this Court reported in State of Himachal Pradesh vs. Shree Kant Shekari, AIR 2004 SC 4404 . Therein, this Court has essentially relied upon the principles about the impact of delay as noticed by it in the judgment of this Court in Tulshidas Kanolkar vs. State of Goa, 2003 (8) SCC 590 wherein rape was committed on a girl whose mental ability was undeveloped. This is what the court had to say about the fact of delay. Therein, this Court has essentially relied upon the principles about the impact of delay as noticed by it in the judgment of this Court in Tulshidas Kanolkar vs. State of Goa, 2003 (8) SCC 590 wherein rape was committed on a girl whose mental ability was undeveloped. This is what the court had to say about the fact of delay. “........In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render prosecution version brittle.” 6. In Vijayan case (supra) the prosecutrix who was aged about 17 years was the neighbor of the accused. In her testimony the prosecutrix set up the case that accused has raped her when no one else was there in the house and she was raped in the house. The accused-appellant was alleged to have been told that she need not worry as he will marry her. She did not give any complaint either to her parents and police in view of the promise. She became pregnant and while she was carrying a child of 7 months, she requested the accused to marry her. The accused declined. Thereafter a complaint was filed after 7 months. On these facts this court noted that no complaint or grievance was made either to the police or the parents thereto. The explanation for delay in lodging the FIR was noted namely that the accused promised to marry her and therefore the FIR was not filed. The accused declined. Thereafter a complaint was filed after 7 months. On these facts this court noted that no complaint or grievance was made either to the police or the parents thereto. The explanation for delay in lodging the FIR was noted namely that the accused promised to marry her and therefore the FIR was not filed. The Court held as follows: “............In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused.” 18. In the case of Viswanathan and others (supra), the Apex Court has held and observed in paras-19 and 20 as under: “19. 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. 20. In a situation of this nature and particularly having regard to the sociological backgrounds from which PW-6 and PW-7 and other witnesses hail, we are not in a position to agree with the submissions of Mr. Viswanathan that the prosecution case should be thrown out only on the ground of delay in lodging the FIR.” 19. On perusal of the evidence of the prosecutrix, PW-1 at Exhibit 9, it appears that she has stated that Hitesh is her husband and he has Electrical Shop in Gondal and they are husband and wife and are residing at Village: Biliyala and they have agricultural field wherein she is helping in agricultural work. On perusal of the evidence of the prosecutrix, PW-1 at Exhibit 9, it appears that she has stated that Hitesh is her husband and he has Electrical Shop in Gondal and they are husband and wife and are residing at Village: Biliyala and they have agricultural field wherein she is helping in agricultural work. She has stated that she knew the accused. According to her version, on 05.10.2002, she was in her field and she was in the pit of the well and she step down in the pit to stop the machine and at that time, accused came from behind her and put his handkerchief upon her mouth. She has narrated that at that time, she asked him as to why he came there and at that time, accused told her that not to speak anything and by holding handle of the machine in his hand and after putting handkerchief on her mouth, he has fallen down her on the earth. At the next moment, she has stated that as there was no space for laying down in the pit, he has pushed her in the pit of the wall and lifted her petticoat and put out her knicker and he slept over her. She has stated that at that time, the accused has put off his pant and tried to do intercourse with her, but he did not complete the intercourse and at that time, she pushed him thrice and, therefore, he stood up and at that time, she shouted, however, as the machine was working, it was not possible to hear the shout and nobody came there. She has stated that the accused has told her that if she told this fact to anybody, he would kill her. It is her version that one Rameshbhai Koli came there and the accused has also given threat to him and used filthy language against him. She has narrated that she has narrated incidence to Rameshbhai. 19.1 She has narrated that on the day of the incident, due to fear and shy, she did not tell this fact to anybody and after 20 days of the incident, when she was again going to her agricultural field, the accused met her and told her that he was still bachelor, she may come with him. 19.1 She has narrated that on the day of the incident, due to fear and shy, she did not tell this fact to anybody and after 20 days of the incident, when she was again going to her agricultural field, the accused met her and told her that he was still bachelor, she may come with him. It is her version that at that time, she told the accused that on the day of incident, as there was a pit, she could not do anything. It is her version that on that day, she has informed her husband about the incident and she has filed the complaint. 19.2 During her cross-examination, she has stated that the pit wherein machine, was fitted, was in round shape and there was foundation of cement in the pit and there was only two fit space available around the machine. While narrating the position of the machine in the pit and land, she has stated that the way is 15-20 fit away from the well. She has stated that the accused did not catch behind her, but he has caught hold her by one hand and put his handkerchief on her mouth by second hand. She has denied the suggestion that after lifting the petticoat by one hand, knicker could be removed without using of another hand. She has denied the suggestion that after lifting the petticoat, both hands are required to be used to remove the knicker. She has denied the suggestion that it is not possible to remove knicker while holding the petticoat lifted by another hand. She has admitted that after removing his hand from her mouth, both hands of the accused as well as her were free. She has stated that when she raised shout, at that time, the machine was in motion and Rameshbhai came there. She has admitted that she has not narrated in her FIR that the accused has committed rape on her. However, she has voluntarily stated that as there was no complete intercourse, she has not narrated this fact. She has stated that the accused has enter his penis in her vagina. She has denied the suggestion that whatever has happened, is happened with her consent. 20. On perusal of the evidence of Dr. However, she has voluntarily stated that as there was no complete intercourse, she has not narrated this fact. She has stated that the accused has enter his penis in her vagina. She has denied the suggestion that whatever has happened, is happened with her consent. 20. On perusal of the evidence of Dr. Manish Babulal Chunara, PW-2 at Exhibit 11, it appears that on 31.10.2002, he was serving as Medical Officer in Civil Hospital at Gondal and at that time, with police yadi, the prosecutrix was brought before him for medical examination and he examined her. According to his version, there was no injury marks found on external part of the body of the victim as well as on external part of the private part of the victim. He has stated that due to lapse of long time, the signs of intercourse could not be available in the case of married woman. 20.1 During his cross-examination, he has stated that it is not possible to have intercourse in a pit. He has stated that he has not asked history from the patient. He has stated that he cannot opine as to whether any rape was committed on victim or not. 21. On perusal of the evidence of Hiteshbhai Chanabhai Gadhiya, PW-3 at Exhibit 14, it appears that he is husband of the complainant-prosecutrix and he has narrated that he knew the present accused. He came to know that fact from his wife as to the alleged incident and, therefore, he has persuaded the complainant to file the complaint and accordingly, the complainant has filed the complaint. 21.1 During his cross-examination, he has stated that before filing the complaint, there was discussion between the him and his wife and they have not met any advocate. He has denied the suggestion that no such incident has happened and the false FIR has been lodged against the accused so that the accused may leave the village. 22. On perusal of the evidence of Dr. Rashmi Durlabhji Shukla, PW-4 at Exhibit 15, it reveals that on 25.01.2002, he was serving as Medical Officer in Government Hospital at Gondal and at that time along with police yadi, the accused was brought before him for examination and accordingly, he carried out the examination of the victim and found that he was capable to have intercourse. Rashmi Durlabhji Shukla, PW-4 at Exhibit 15, it reveals that on 25.01.2002, he was serving as Medical Officer in Government Hospital at Gondal and at that time along with police yadi, the accused was brought before him for examination and accordingly, he carried out the examination of the victim and found that he was capable to have intercourse. 22.1 During his cross-examination, he has admitted that in a certificate issued by her at Exhibit 17, he has not narrated that the accused was capable of doing intercourse. He has admitted that there was no physical injury found on the body of the accused. 23. On perusal of the evidence of Rameshbhai Ravjibhai. PW-5 at Exhibit 18, who is stated to be the witness to whom the complainant has given information regarding what has happened to her, it appears that he has not supported the basic version that the complainant has told him everything. He has not supported the basic version of the prosecution that on the day of the incident, immediately, the prosecutrix has informed him regarding commission of attempt to rape on her by the accused. Therefore, he has been declared hostile by the prosecution and he has been cross-examined by the defence side. However, in such cross-examination also, he has not supported the basic version of the prosecution. 23.1 During his cross-examination on behalf of the defence side, he has stated that he has seen the pit situated near the well where the alleged incident is said to have been occurred. He has stated that there was machine placed in the pit and due to that only one person can stand in the pit and on the day of incident, he was in his own field and after 2025 days, the police came there and after asking his name, nothing was inquired from him. 24. On perusal of the evidence of Chhaganbhai Ranchhodbhai, PW-6 at Exhibit 19, it appears that he is a panch witness of the panchnama. He has stated that the panchnama of scene of offence was carried out in his presence and another panchnama regarding the condition of the body of the victim was also carried out. However, he has stated that he has no knowledge as to whether another panch was present at the relevant time or not. He has stated that the panchnama of scene of offence was carried out in his presence and another panchnama regarding the condition of the body of the victim was also carried out. However, he has stated that he has no knowledge as to whether another panch was present at the relevant time or not. Therefore, the prosecution has declared him as hostile and he has been cross-examined by the prosecution wherein he has admitted that the panchnama of condition of the body of the accused was carried out in his presence. However, he has not supported the prosecution version that the panchnama of scene of offence was carried out in his presence. 24.1 During his cross-examination on behalf of the defence side, he has stated that three panchnamas were prepared in his presence; one was at the field, second was at the time of inquiry and third was at the hospital, out of which he has signed only one panchnama which was prepared in the Government Hospital at Gondal. He has stated that when the complaint was given by the complainant, he was not present. 25. On perusal of the evidence of Ramjibhai Oghadbhai Rupareliya, PW-7 at Exhibit 21, it appears that he has stated that he was called at the place of occurrence as panch and after signing the same, he left the place and he did not know regarding other panchnama. He has stated that the panchnama of pit was carried out and he as well as Shaileshbhai have put their signatures on the same. 25.1 During his cross-examination on behalf of the defence side, he has stated that he was there about half an hours and the police were writing and after writing was over, they have put their signatures. He has stated that he reached to that place, where procedure of drawing of panchnama was going on. 26. On perusal of the evidence of Rajendrasinh Pratapsinh Jadav, PW-8 at Exhibit 23, it appears that he has stated that at the relevant time, he was police constable and at that time, at about 15.00 hours, the complainant came before him for lodging her complaint. 26. On perusal of the evidence of Rajendrasinh Pratapsinh Jadav, PW-8 at Exhibit 23, it appears that he has stated that at the relevant time, he was police constable and at that time, at about 15.00 hours, the complainant came before him for lodging her complaint. He has, accordingly, written down the complaint and he put his signature and sent the copy to that effect to the Judicial Magistrate, Gondal and informed the concerned Police Officer and recorded the offence in the relevant register and he has handed over the investigation to the PSI of concerned Police Station. He has produced the documentary evidence. 26.1 During his cross-examination on behalf of the defence side, he has stated that he has, after recording of the complaint, immediately, handed over the investigation and the complaint was narrated by the prosecutrix and she was alone and she has not brought any yadi or chit with her and at that time, she remained in police station for one hour. He has stated that he has recorded the complaint of the complainant as per her version. 27. On perusal of the evidence of Bachubha Gagubha Solanki, PW-9 at Exhibit 26, it appears that at the relevant time, he was PSI in Gondal Taluka Police Station and investigation was handed over to him and accordingly, he has recorded the statement of the witnesses and drawn the panchnama and arrested the accused and has also got medical evidence. 28. During his cross-examination, he has stated that as he did not find any sign on the clothes of the complainant as well as accused, he did not recover those clothes which were worn by them. He has stated that he did not remember that how many members were present at the time of drawing the panchnama of the scene of offence. He has denied that he has recorded the statement of witnesses as per his own and though no offence was made out, he has wrongly arrested the accused. 29. In view of the aforesaid evidence, it is clearly found that the complaint has been lodged after almost 25 days of happening of the incident. He has denied that he has recorded the statement of witnesses as per his own and though no offence was made out, he has wrongly arrested the accused. 29. In view of the aforesaid evidence, it is clearly found that the complaint has been lodged after almost 25 days of happening of the incident. Under these circumstances, it is impossible to have any sign of commission of offence at the place of occurrence and, therefore, if no any sign of happening of the incident is found in the panchnama of the scene of offence, that fact alone cannot be a ground to disbelieve the version of the prosecution. However, the fact emerges out from the evidence that the entire prosecution case is based on the evidence of the so-called eye witness Rameshbhai as well as prosecutrix. 30. Now, on perusal of the evidence of eye witness Rameshbhai, it clearly reveals that he has not supported the basic version of the prosecution as regards immediate information given to him by the prosecutrix regarding the alleged attempt to rape on her. Therefore, the entire prosecution case is based solely on the evidence of the prosecutrix. 31. Now, on perusal of the complaint as well as the evidence of the prosecutrix, it reveals that according to her version, the alleged attempt to rape has been committed in a pit wherein machine is installed on cement foundation. It also reveals from the evidence that the same pit is in round shape and the place between the wall of the pit and the machine is just one fit. Now, according to the prosecutrix, she was pressed towards the wall and the accused has put his one hand on her mouth and by second hand, he has lifted her petticoat and, thereafter, he has removed her knicker and also removed his pant and tried to have intercourse with her. This narration of the prosecutrix is not believable. If this scenario is considered, then, one fact remains that at that point of time, both hands of the prosecutrix were free. Further, a person cannot hold petticoat by one hand and at the same time, he can remove knicker and remove his own pant and, then, try to have intercourse with a woman who is in standing condition. The version of the prosecutrix is unnatural, impossible and unbelievable. Further, a person cannot hold petticoat by one hand and at the same time, he can remove knicker and remove his own pant and, then, try to have intercourse with a woman who is in standing condition. The version of the prosecutrix is unnatural, impossible and unbelievable. Considering the depth of the pit and the space available therein, the factum of attempt of rape is not possible. 32. It also reveals from the evidence that the prosecutrix has remained silent for more than 20 days. The version of the prosecutrix is that due to threat and shy, she could not narrate the fact to her husband and other person. It is not believable. As per the version of the prosecutrix, she has, immediately, narrated everything to the witness Rameshbhai and if it was so happened, then she could have also told this fact to her husband. However, she has not stated anything to her husband on the same day and after lapse of almost 25 days, she has filed the complaint after discussion with her husband. The evidence on record in the shape of version of the prosecutrix is not cogent, reliable and trustworthy. In this case, considering the totality of the facts and circumstances, there is need of corroboration to the version of the prosecutrix. However, in the present case, there is no corroborative evidence available on record which may helpful to the version of the prosecutrix. When the evidence of the prosecutrix is not trustworthy, then, the corroboration is needed in the fact situation of the present case. The evidence of the husband and the police officers are based on hearsay in nature. The evidence of Rameshbhai is also hearsay evidence based on the version of the prosecutrix which has been given as alleged by the prosecutrix on the next spur of moment and, therefore, the evidence of Rameshbhai is also hearsay in nature. But as stated hereinabove, this witness Rameshbhai has not supported the basic version of the prosecution that after happening of the alleged incident, the prosecutrix has informed him and the accused has given threat to this witness of dire consequences. Thus, in view of the facts and circumstances, on re-appreciating the entire evidence on record, it clearly transpires that the Trial Court has not considered all these aspects in its proper perspective and has committed serious error of facts and law. Thus, in view of the facts and circumstances, on re-appreciating the entire evidence on record, it clearly transpires that the Trial Court has not considered all these aspects in its proper perspective and has committed serious error of facts and law. As such, the impugned judgment and order warrants interference and the impugned judgment and order of the Trial Court is not sustainable in the eyes of law, which deserves to be quashed and set aside. 33. In view of the above, the present appeal is liable to be allowed and accordingly, the present appeal is allowed. The impugned judgment and order dated 10.11.2003 passed by the learned Additional Sessions Judge, Gondal in Sessions Case No. 15 of 2003 is hereby quashed and set aside. The appellant-original accused is acquitted from the charges leveled against him for the offence under Sections 376 and 506(2) of the Indian Penal Code. Fine, if any, paid by the appellant-accused to be refunded to him. Bail bond, if any, stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.