CR.A/98/2004 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 98 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHANABHAI DULABHAI NAYAK - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s):1,MS SADHANA SAGAR for Appellant(s):1, MR MA PATEL, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 25/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1. The appellant herein who was the original accused in Sessions Case No.110 of 2001 preferred this appeal, challenging the CR.A/98/2004 2/11 JUDGMENT legality and validity of the impugned judgment and order rendered by Presiding Officer, 3rd Fast Track Court, Panchmahal at Godhra ('learned trial Judge', for short) on dated 9.1.2004 in Sessions Case No.110 of 2001. By virtue of the impugned judgment and order, the learned trial Judge convicted the appellant – accused for the offences punishable under Sections 376, 323 and 506(2) of the Indian Penal Code ('IPC', for short) and awarded sentence of rigorous imprisonment for 10 years and fine of Rs.10000/-, in default to undergo further simple imprisonment for 90 days for the offence punishable under Section 376 of the IPC and rigorous imprisonment for one year and rigorous imprisonment for 2 years for the offences punishable under Sections 323 and 506(2) of the IPC respectively. All the sentences were ordered to run concurrently. It was further directed that out of the amount of fine, Rs.5000/- to be paid to victim – Shardaben by way of compensation. 2. The prosecution case in nutshell is as under:- 2.1 On dated 2.10.1999, at about 10 a.m., the accused committed sexual intercourse with minor Shardaben, the daughter of Lalubhai Maganbhai, aged about 17 years, against her will in the field of witness Chandubhai Somabhai situated in the outskirts of village Chandranagar, Tal.Goghamba, Dist.Panchmahal. That the accused caused hurt to victim Shardaben by inflicting kick and fist blows and she was also threatened that if she would disclose the incident of rape to anybody else, she would be killed. CR.A/98/2004 3/11 JUDGMENT At the first instance, on dated 3.10.1999, victim Shardaben reported the incident to the police, wherein it was stated that at the time of the incident, the accused had caused simple hurt to her by inflicting fist and kick blows. In that report dated 3.10.1999, she had not said that she was raped by the accused and that accused had threatened her to be killed. Thereafter, on 5.10.1999, she lodged her FIR before the police, narrating the incident of rape as well as the incident pertaining to causing simple hurt to her by the accused and administering threats to her by the accused. The FIR was registered by the police in connection with the offences punishable under Sections 376, 323 and 506(2) of the IPC and police started the investigation. During the course of the investigation, statements of material witnesses were recorded, clothes of the victim and of the accused were seized by drawing necessary panchnamas, medical examination of the victim and of the accused was performed. After completing the police investigation, chargesheet came to be filed in the Court of learned JMFC, Devgadh-Baria. As the offences punishable under Section 376 was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Panchmahal at Godhra. 2.2 The learned trial Judge framed the charge against the accused at Exh.3, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the completion of the evidence, the learned Judge recorded further statement of the accused under Section 313 of the Code of Criminal Procedure and in his further CR.A/98/2004 4/11 JUDGMENT statement, the accused denied generally all the allegations levelled against him by the prosecution and stated that he was intentionally falsely implicated in this case. After appreciating the evidence on record and after considering the arguments advanced on behalf of both the sides, the learned trial Judge delivered the impugned judgment and order recording the conviction of the accused for the offences punishable under Sections 376, 323 and 506(2) of the IPC and awarded the sentence as hereinabove referred. 3. We have heard arguments advanced by learned advocate Ms.Sadhana Sagar for the appellant – accused and learned APP Mr.M.A.Patel for the respondent – State and we have considered the oral and documentary evidence adduced by the prosecution in this matter. 4. Learned advocate Ms.Sagar for the appellant – original accused submitted that the accused was falsely implicated in this case. He is quite innocent. It is submitted that there are two first information reports in this case. The first report was lodged before police by the prosecutrix on dated 3.10.1999, wherein she alleged only the offence punishable under Section 323 of the IPC. In that report, she nowhere stated before police that she was raped by the accused and she was threatened. Thereafter, for the reason best known to the first informant Shardaben, on dated 5.10.1999, second FIR came to be lodged by her regarding the same incident, wherein she CR.A/98/2004 5/11 JUDGMENT alleged the offences punishable under Sections 376 , 323 and 506(2) of the IPC. That thus, the prosecution has come forward with very doubtful case. If at all the first informant Shardaben was sexually exploited and was raped by the accused, then in her first report dated 3.10.1999, she would have clearly stated that she was raped by the accused. That thus, the entire prosecution case is very doubtful. No reliance can be given to the deposition of victim Shardaben and other witnesses. That in the FIR, Exh.19, the first informant Shardaben stated that on the day and time of incident, she went to the field of one Chandubhai Master along with her aunt Lilaben and other ladies. Considering the deposition of Lilaben, Exh.20, she nowhere stated that at the time of incident, she had accompanied the victim Shardaben. Thus, the version of the prosecutrix does not get any corroboration. It is stated that considering the school leaving certificate, Exh.25, the date of birth of victim Shardaben is 15.7.1982. As per the prosecution case, the alleged incident occurred on dated 2.10.1999. Therefore, at the time of incident, she was aged about more than 17 years. It is submitted that because of rivalry between the family of the accused and the family of the victim Shardaben on account of election, the accused came to be falsely implicated in this case. It is further submitted that the medical evidence does not support the case of the prosecution. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order rendered by the learned trial Judge recording the conviction of the accused be set-aside and the appellant – accused be acquitted. CR.A/98/2004 6/11 JUDGMENT 5. On behalf of the respondent – State, the appeal is vehemently opposed by the learned APP Mr.Patel and it is submitted that the learned trial Judge rightly recorded the conviction of the appellant. It is submitted that in the deposition of the prosecutrix Shardaben, in her cross-examination on behalf of the accused himself, she has clearly explained that at the first instance, before police, she did not allege any offence of rape against accused only with a view to save her respect and reputation. It is submitted that the report before police dated 3.10.1999, Exh.44 alleging the offence punishable under Section 323 of the IPC can never be said to be a first information report, disclosing cognizable offence, since the offence punishable under Section 323 of the IPC is non- cognizable offence. The first information regarding the incident of rape is the FIR lodged by the victim on dated 5.10.1999, Exh.19. It is further submitted that considering the medical evidence on record as well as the serological report prepared by the FSL, the case of the prosecution that Shardaben was raped by the accused, is duly corroborated. Therefore, it is submitted that the appeal be dismissed. 6. Shardaben Lalubhai, the prosecutrix in her testimony, Exh.18 about the incident stated that she had gone to the field situated in the outskirts of her village Chandranagar for the purpose of agricultural work and cutting the grass. At that time, while she was cutting the grass, the accused came there. Seeing the accused, she tried to escape and she went to the CR.A/98/2004 7/11 JUDGMENT adjoining field, but, she was caught hold by the accused and she was pushed to the ground and the accused had raped her. Her mouth was gagged. She further stated that she had studied upto vernacular standard 2nd . She stated that accused belongs to her village and she knows him. In her cross- examination on behalf of the defence, she stated that at the time of committing rape on her, the accused was inflicting fist and kick blows. In her cross-examination on behalf of the defence, her attention was drawn about the first report she made before the police on dated 3.10.1999 and she admitted that in that report she had only alleged against the accused that the accused had inflicted kick and fist blows. However, she further deposed during the course of her cross-examination that at that time, she did not allege about rape having been committed by the accused on her, with a view to save her respect and reputation. 6.1 Dr.Rameshchandra Chauhan is examined at Exh.13. He stated that on dated 5.10.1999, at about 6.10 p.m., victim Shardaben was forwarded by police to his hospital for medical examination. Dr.Chauhan deposed that victim Shardaben gave history of alleged rape on her on 2.10.1999 at 10 a.m. by Shanabhai Dulabhai, the appellant – accused. Dr.Chauhan stated that no injury marks were seen all over her body. The hymen has recent tear. Dr.Chauhan further stated that after the incident, she had taken bath twice and clothes have been changed twice. In connection with radiological report, Dr.Chauhan opined that the victim was aged between 15 to 17 years. She was not used to CR.A/98/2004 8/11 JUDGMENT sexual intercourse. Dr.Chauhan collected the clothes of the victim. 6.2 Considering the deposition of victim Shardaben and the deposition of Dr.Chauhan, Exh.13 and the certificate, Exh.15, it clearly transpires that the medical evidence supports the case of the prosecution that Shardaben was subjected to sexual intercourse. In the history given by her before the Doctor, the involvement of the accused in connection with the offence of rape is clearly stated. The medical evidence thus corroborates the say of the prosecutrix Shardaben that she was raped. 6.3 On behalf of the appellant – accused, it was stated that as per the prosecution case, when the victim Shardaben went to the field of Chandubhai, at that time her aunt Lilaben and other ladies accompanied her. In this connection, considering the deposition of Lilaben, Exh.20, she stated that on the day of the incident, victim Shardaben had come to her house and she was weeping and stated that the accused had committed sexual intercourse with her. In her cross-examination she stated that before the police, at the first time, the incident of rape was not referred only with a view to save the respect and reputation of Shardaben. It is not the case of the prosecution that witness Lilaben is an eye-witness to the incident of rape. Considering the FIR, Exh.19, victim Shardaben stated that on dated 2.10.1999, she had gone to the field of Chandubhai along with her aunt Lilaben and other ladies, but, at the time when she was cutting the grass in the field, she was alone and the accused came there. It is not her say in the FIR as well as in her deposition, Exh.18 CR.A/98/2004 9/11 JUDGMENT that Lilaben had seen the incident of rape. 6.4 It is true that as per the school leaving certificate, Exh.21, the date of birth of victim Shardaben is 15.7.1982 and the incident occurred on dated 2.10.1999, and therefore, at the time of incident, she was aged about more than 17 years. However, considering the cross-examination of victim Shardaben, on behalf of the accused, nowhere it is suggested that the sexual intercourse was with the consent of the prosecutrix Shardaben. In other words, it is not the defence of the accused that the sexual intercourse was with her consent. It is not the defence of the accused that there was any love affairs between himself and Shardaben. When such is the situation, though it is a fact that at the time of the incident, Shardaben was aged about 17 years (not under 16 years of age), yet there is nothing on record to come to the conclusion that Shardaben was a consenting party to the sexual intercourse. However, as a matter of fact, there is no such defence whatsoever raised by the accused during the entire trial. 6.5 The clothes of the victim Shardaben were sent by the Investigating Police Officer to FSL for examination. Together with the clothes, the sample of semen of the accused was also sent to the FSL. Considering the serological report, Exh.41, along with the forwarding report of muddamal sent to the FSL by Dy.S.P., Godhra, Exh.40, it transpires that the undergarment (nicker) of Shardaben contained the marks of semen and as per serological report, the semen marks were of “B” Group and as per this report itself, the semen of the accused was of Group “B”. CR.A/98/2004 10/11 JUDGMENT Thus, the marks of semen of the accused were on the undergarment of victim Shardaben. 7. In the result, we are of the considered opinion that the prosecution successfully proved its case beyond any reasonable doubt against the accused. The medical evidence together with the report of FSL duly corroborates the case of the prosecution regarding the rape as well as the hurt. Considering the deposition of Shardaben, the prosecution successfully proved its case pertaining to rape, simple hurt and administration of threat to her by the accused, regarding killing her. Under such circumstances, we do not find any reason to interfere with the impugned judgment and order rendered by the learned trial Judge recording the conviction of the appellant accused for the offences punishable under Sections 376, 323 and 506(2) of the IPC. On the quantum of sentence, the learned advocate Ms.Sagar for the appellant – accused submitted that the sentence of rigorous imprisonment for 10 years awarded by the learned trial Judge for the offence of rape deserves reduction, as the accused was at the relevant time aged about 25 years. The liability to maintain his family was on the shoulder of the accused. However, considering the facts and circumstances of the case, the circumstances narrated on behalf of the appellant regarding the mercy can never be said to be mitigating circumstances to alter the sentence so as to reduce the same from rigorous imprisonment for 10 years. Under such circumstances, we do not find any justifiable reason to interfere with the discretionary order of sentence passed by the CR.A/98/2004 11/11 JUDGMENT learned trial Judge. 8. In the result, the appeal deserves to be dismissed. The appeal stands dismissed. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)