CR.A/1505/2003 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1505 of 2003 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 ? ========================================================= SHAILESHKUMAR NANJIBHAI SOLANKI & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS FARHANA Y MANSURI for Appellant(s) : 1 - 3. MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 15/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) The appellants are respectively accused nos. 2, 3 and 5 in CR.A/1505/2003 2/8 JUDGMENT Sessions Case No. 109 of 2003 of Panchmahals District at Godhra, who were convicted by the Sessions Court at Godhra by judgment and order dated 25/7/2003. Appellants nos. 1 and 2 original accused nos. 2 and 3 were convicted for offences punishable under sections 453 and 114 and 363, 366 and 114 of the Indian Penal Code [IPC] and sections 376 (2) and 114 of the IPC and were sentenced to undergo simple imprisonment [SI] for 2 years with fine of Rs.1,000/-, SI for 3 years with fine of Rs.1,000/- and rigorous imprisonment [RI] for 10 years and fine of Rs.10,000/- respectively with appropriate provision for sentence in event of default in payment of fine. Appellants no. 3 original accused nos. 5 came to be convicted for offences punishable under sections 363, 366 and 114 of the IPC and sections 376 (2) and 114 of the IPC and was sentenced to undergo SI for 3 years with fine of Rs.1,000/- and RI for 10 years and fine of Rs.10,000/- respectively with appropriate provision for sentence in event of default in payment of fine. The sentences were ordered to run concurrently and all the accused were given benefit of set off. 2. The prosecution case in brief is that the first informant Amrutaben, daughter of Lalabhai Galabhai Pagi was sleeping in her house-cum-shop on night falling between 15/1/2003 and 16/1/2003. When around 1.30 hours the accused persons illegally entered the house CR.A/1505/2003 3/8 JUDGMENT and took her away by gaging her mouth. She was mounted on a bicycle and was carried to a house, where she was raped by the assailants. As per the prosecution, besides the appellants, two other persons were also in the group of assailants namely accused no. 1 Bhikhabhai Manabhai Vankar and accused no. 4 – Parvatbhai Gorajibhai Dindor, who came to be acquitted by the trial Court considering the evidence led by the prosecution. 2.1. After gang rape the prosecutrix was permitted to go. She came back to her home crying and informed her father about the incident and then went to the police and lodged FIR. On the basis of the FIR, offence was registered and crime investigated. The police having found sufficient evidence, filed charge-sheet against the 5 accused persons in the Court of the Ld. Judicial Magistrate First Class, Santrampur. The Ld. Magistrate in turn committed the case to the Court of Sessions and Sessions Case No. 109 of 2003 came to be registered. 2.2. Charges were framed against all 5 accused at exh. 11 and all of them pleaded not guilty to the charge and claimed to be tried. After considering the evidence led by the prosecution, the trial Court came to a conclusion that the prosecution was successful in proving the charges CR.A/1505/2003 4/8 JUDGMENT against accused nos. 2 and 3 for offences punishable under sections 453, 363, 366, 376 (2) read with section 114 of the IPC and that the prosecution was successful in establishing the charges for offences punishable under sections 363, 366, 376(2) read with section 114 of the IPC against accused no. 5 and recorded their conviction and passed order of sentence as discussed hereinabove. The trial Court, however, recorded acquittal so far as accused nos. 1 and 4 were concerned and acquitted them of the charges. No appeal against the acquittal seems to have been preferred by the prosecution. 3. We have heard learned advocate Ms. Farhana Mansuri for the appellants and Ld. APP Mr. Bhatt for the respondent – State. 3.1. Ms. Mansuri submitted that the trial Court has committed an error in convicting the appellants on same set of evidence which was found to be sufficient to acquit accused nos. 1 and 4 and the Court has, therefore, committed grave error of facts and law. According to Ms. Mansuri, the evidence of prosecutrix is unbelievable. She says that she was physically lifted and mounted on a bicycle and taken to the place where the rape was committed and that she had raised shouts; but there is no evidence to show that somebody heard the shouts. Possibly she did not raise any shout and, therefore, nobody heard it. Witness, therefore, is not CR.A/1505/2003 5/8 JUDGMENT telling the truth and may not be believed. If the deposition of the prosecutrix is not believed, there is no other evidence to establish nexus between the crime and convict. The appeal, therefore, may be allowed. 3.2. On the other hand, Ld. APP Mr. Bhatt submitted that the entire incident has occurred in one sequence. The evidence, therefore, is common and in the first flush it may appear that the Court has committed an error in giving two findings on same set of evidence. But if the evidence is examined, the prosecutrix implicates only the appellants and not the other accused. Besides, the evidence of prosecutrix, there is evidence of the doctor before whom the accused persons had given the history of they having raped the prosecutrix. This independent evidence of the doctor lends full credence to the evidence of the prosecutrix and vice-versa and, therefore, the conviction is well founded and the appeal may, therefore, be dismissed. 4. On examination of the record and proceedings, the evidence of the prosecutrix is at exh. 30. She in terms says that she was sleeping in her house-cum-shop. In the previous evening accused Shailesh and Devendra i.e appellants nos. 1 and 2 original accused nos. 2 and 3 had come to her shop to purchase cigarette. At the end of the day, after CR.A/1505/2003 6/8 JUDGMENT shutting the doors the prosecutrix herself, her brothers and her father were sleeping in different parts of the house, when around 9.30 p m appellants nos. 1 and 2 opened the front door of the house by inserting the hands through grill, came into the house and started moving his hand over her person and she woke up. Appellant no. 1 gaged her mouth with his shirt, picked her up and took her outside the house where appellant no. 3 was waiting with a bicycle. They put her on the bicycle and then took her away to a house. She was taken into the house and then she says that she was raped by the appellants one after the other. She has identified the 3 appellants before the Court as well. She says that thereafter she was permitted to go. She went home, told her father, who in turn called her aunt Somiben, informed her about the incident. Then she gave the FIR exh. 31. She has been subjected to cross-examination by the defence, but nothing emerges to shake her evidence implicating the appellants. Her FIR if perused, it implicates the appellants as well as the acquitted accused persons. 5. If the medical evidence is seen, it is in form of deposition of Dr. Rameshchandra Harjivanbhai Shrimali exh. 19, who had examined the prosecutrix as well as the accused persons. Doctor after describing the outcome of his examination of the prosecutrix, says that he had also CR.A/1505/2003 7/8 JUDGMENT examined all the 5 accused persons and all of them had given a history of intercourse with Amrutaben Pagi on 15/1/2003. This history is recorded by the doctor in the medical case papers as well as the medical certificates of the prosecutrix as well as the accused persons. Doctor has also been subjected to cross-examination, but nothing to doubt his version about the history given to him by the accused persons emerges. Doctor has also given an opinion after examining the prosecutrix that she was subjected to sexual intercourse within 24 hours preceding the examination. 6. The overall picture that emerges therefore, is that although in the FIR the prosecutrix implicates all 5 accused persons, in her deposition she implicates only the appellants. Her version implicating the appellants is supported by medical evidence, particularly history given by the appellants to the doctor and there is no material to doubt the evidence of prosecutrix or the doctor. The trial Court was, therefore, justified in recording conviction so far as the appellants are concerned. It is true that the FIR and the medical evidence implicates the acquitted accused also, but when the prosecutrix herself says nothing about the accused nos. 1 and 4, obviously they could not have been convicted by the trial Court and it cannot be said that the conviction is recorded on same set of evidence on which the other 2 accused persons were acquitted. CR.A/1505/2003 8/8 JUDGMENT 6.1. We also find that at the time of commission of the crime only appellants nos. 1 and 2 had entered the house and appellant no. 3 was waiting outside the house and, therefore, conviction under section 453 read with section 114 of the IPC is rightly recorded by the trial Court against appellants nos. 1 and 2 only. 7. We do not find any error having been committed by the trial Court in recording conviction of the appellants for the reasons stated hereinabove; nor do we find that the judicial discretion has not been appropriately used by the trial Court while awarding sentence. Under the circumstances, we find no reason to interfere with the judgment and order impugned in the appeal. The appeal, therefore, must fail and stands dismissed. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.