IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 737 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : @ RAKESH JOSEPH DAMOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 737 of 1997 MR MAHENDRA K PATEL for appellant No. 1 Mr.B.Y.Mankad, learned Addl.P.P for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE H.H.MEHTA Date of decision: 03/07/2002 ORAL JUDGEMENT (Per : MR.JUSTICE D.K.TRIVEDI) 1. In this Appeal the appellant accused has challenged the order of conviction and sentence recorded by the learned Addl. Sessions Judge, Surat dated 10.7.97 in Sessions Case No.161/95 wherein the learned trial Judge has while accepting the case of the prosecution convicted the accused for the offence under Section 376 of I.P.C. and the accused was ordered to suffer R.I. for 10 years and fine of Rs.10,000/-- in default R.I. for 6 months. 2. During hearing, Mr. Patel, the learned advocate appearing on behalf of the appellant, while arguing the Appeal has taken us through the evidence consisting of oral and documentary as well as the judgment under challenge. It is the contention of Mr. Patel that looking to the evidence, the prosecution has failed to establish that the accused has committed any offence of rape and in support of his submission he has relied upon medical evidence on the record of the case. Further according to him as per the prosecution case, the incident has occurred on 29.4.1995 between 13.30 and 14.15 hours and considering the time taken in filing the FIR by the mother of victim, surely three is a late filing of FIR and the prosecution has not explained such delay and the same is fatal to the prosecution. He next urged that even as per the medical evidence adduced by the prosecution, it is not supported the prosecution case as there was no intercourse for which he placed reliance upon the medical certificates issued by Doctors and further as found from the evidence that when appellant Rakesh was examined no injury was found and according to him, the learned trial Judge was not right in accepting the prosecution case that the accused has committed offence of rape. Alternatively, it is his submission that after considering the evidence of the prosecution witnesses and in view of the medical evidence, at the most appellant can be held responsible under Sec.511 of the I.P.C. as there was no rape and by relying upon the provisions of Sec.511 he prayed that the sentence imposed be reduced by showing mercy on the accused looking to his age at the time of commission of the offence as he was hardly 19 years of age. He accordingly prayed that the order of conviction and sentence be set aside by acquitting the accused and alternatively the order of conviction be restored by convicting the accused for the offence under Sec.511 of the I.P.C. and the sentence imposed be substantially reduced. 3. Mr. B.Y. Mankad, learned Addl. P.P. has vehemently urged that looking to the prosecution case and as brought by the prosecution in evidence, the accused had committed rape on a minor girl, who was hardly 7 years of age. While taking us through the evidence he demonstrated that as found from the evidence that minor Nidhi was acquainted with the family of the accused, namely, Nirmalaben and when Nidhi was hardly 6 months of age, her mother has taken the services of Nirmalaben by admitting minor Nidhi as a baby-sitter and she continued such baby sitting till the offence was committed. He accordingly submitted that the prosecution has established the case against the accused and the learned trial Judge has rightly accepted the prosecution case by convicting him for the offence of rape. It is his contention that looking to the medical evidence and the muddamal, which was seized and from the Serologist's report, it is found that the accused has committed rape on minor Nidhi and there is no case that the accused can be held responsible not for rape but for the offence under Sec.511 of the I.P.C. He has accordingly prayed for dismissal of the Appeal. 4. To appreciate the contentions raised before us by Mr. Patel and Mr. Mankad, learned A.P.P. it is necessary for us to refer to the prosecution case and as found from the record and the charge framed against the accused, it shows that on 29.4.95 between 13.30 and 14.15 hours the offence under Section 376 of the I.P.C. was committed. It is further found from the evidence that the complainant's house bearing House No.58 is close by the house of the accused and as found from the evidence of P.W.6 Miraben, who was the complainant, she has deposed that she is working with Jilla Panchayat and her husband is doing business of advertisement. She has 2 daughters,namely, Urvi and Nidhi. Elder daughter Urvi is 15 to 16 years of age while Nidhi is 9 years of age at the time when her deposition was recorded. While explaining the daily routine, she has deposed that she used to go to attend office by leaving her house at 10.30 A.M. and return at 6.30 P.M. While leaving house, she accompanies her husband and both of them are returning in the evening and her elder daughter Urvi remains in the house. Nidhi -minor daughter is admitted as a baby sitter at the house of Nirmalaben and Nidhi was admitted with Nirmala since her childhood, when she was hardly 6 months old. It is further found from the evidence that Nirmalaben is the mother of appellant accused Rakesh. While deposing about the incident, she has stated that on 29.4.95, the incident has occurred in the noon. On that day she returned at the residence at about 6.30 P.M. After she arrived at her residence, Nidhi had gone to toilet and Nidhi had complained that she is not able to pass urine while sitting and she has complained that she has burning sensation on her private part. Accordingly she is provided soda water. On the next day Nidhi complained more trouble and accordingly she has taken Nidhi to Dr. Bhavsar where Dr.Bhavsar has examined Nidhi. On examination by Doctor, he found the private part of Nidhi was lacerated and found swelling. When they came home, she inquired from Nidhi and Nidhi had started crying. While disclosing the incident,she disclosed that on Saturday at noon she had gone to play at the house of Nirmalaben. She considered Nirmalaben as her sister in law ( Masi). Rakesh had taken her to the bed in a lying condition and removed her knicker and frock and did some bad work (rape). The complaint which was filed by her was shown to her and on going through the complaint,she has admitted that the complaint, which was given by her, was the same. She has also handed over the cloth of Nidhi which were worn by her to the Police. She was shown article No.2 Paijama Frock and the knicker, which she identified that these cloths were worn by her daughter at the time of incident. She knows Rakesh, as Rakesh is the son of Nirmalaben. She also identified the accused in the court, who was wearing green lining shirt. In cross examination she was put question in respect of the residence of Jaswantbhai situated in Punamnagar, where according to her Jaswantbhai's house is situated on the open plot. She has admitted that her house and the house of Nirmalaben is situate in the same line and between two houses there is one Galla. She has also got relation with Nirmalaben. Nirmalaben had 3 sons and 2 daughters and they are Shailesh, Viki and Rakesh and Pinki and Jasika. Nirmala's husband is a rickshaw driver and at the time of incident,Rakesh was studying and as the vacation was in progress he was at his residence. At the time of incident, Nidhi was studying in First Standard and on the day of the incident, there was a vacation in the School of Nidhi. Nirmalaben has not fixed any Board on her house that she is doing business of baby-sitter.She has admitted that Nirmala is doing the job of baby-sitter and 4 to 5 boys are coming at the place of Nirmala. There was no condition that during vacation Nirmalaben has not to continue baby sitting work. During recess some time her husband used to come for some urgent work or for taking tea. There are also 80 to 90 Bungalows in Punamnagar Society and she stays in the said Society since last 15 years. She knows Maryben Fransis, who stays in Bungalow No.81. She has no knowledge whether Nirmala has any relation with Maryben Fransis. On the day of incident, there was some marriage at the house of Maryben, but she was not remembering whose marriage was there. In between the residence of complainant Miraben and the residence of Dr.Bhavsar there was a Galla and further she has admitted that when they are required to go out of the society, they are required to pass through the society in between the house of Nirmalaben. She has denied that no such incident has occurred and further that all the family members of Nirmalaben had gone to Mumbai and she has concocted the incident. She has admitted that after the incident on the next day Nidhi had informed her about the fact of the incident and further that Nidhi has informed prior to taking Nidhi at the Dispensary of Dr. Bhavsar. However, according to her Nidhi has not disclosed the full story. She has admitted that Nidhi has, in respect of the incident, told to her twice. At the first time she has disclosed that she had a pain and she had not disclosed the full story about the incident. Nidhi had disclosed about the fact of pain between 29th and 30th of April, 1995. Nidhi has not taken dinner on that night and she got up early in the morning. Before taking Nidhi to Dr.Bhavsar, Nidhi had stated something that Rakeshbhai has done something wrong to her. However, she has not stated in detail. After taking Nidhi to Dr. Bhavsar and on the next day Nidhi had disclosed the story to her husband. Witness has also admitted that after coming from Dr. Bhavsar's Dispensary and when Nidhi had disclosed the full story about the incident, they had not gone to Dr.Bhavsar nor they called Dr. Bhavsar at her residence and admitted that after Nidhi has disclosed the full incident on the next day she has gone to Police station for filing complaint and while filing complaint, she alongwith her husband and Nidhi had gone to the Police Station. She has further admitted that Jaswantbhai was also accompanying them at the time of filing complaint. She has gone to Police Station for filing the complaint at 10 P.M. and on Monday she has attended the office and her husband has not gone to his work. In cross examination it is further found that when Nidhi had narrated the full story about the incident,at that time she alongwith her husband and Nidhi were present and Nidhi had disclosed the said story before she left for office and she returned early from the office and after consulting by her and her husband, they had gone to Police. She had denied that she had taken opinion of Jaswantbhai. After giving the complaint, she has not gone to the Police again and second time her statement was not recorded by Police. She has admitted that there are 2 to 3 boys coming as baby-sitter. However, she is not in a position to disclose the name of their guardians. One of the boy was named as Dipu. She has not disclosed in the complaint about what Nidhi had disclosed while narrating the preliminary talk. After giving F.I.R., the police came on the next day and she has not given any statement. The police has recorded statement of Nidhi on the very day when she had filed complaint. She had denied the suggestion that no such incident has occurred and Nirmalaben's house was closed. She has further denied that because of the intervention of the neighbour, she has filed the complaint. As found from the cross-examination, she has stated that Nidhi had given complete history about the incident to her as well as to her husband and prior to the filing of the complaint she has disclosed the same to her neighbour, who was residing there prior to 3 to 4 month and she does not know the name of that neighbour nor she remember the name of the family member of the said neighbour. She has admitted that she had disclosed the fact about the incident to Jaswantbhai. Some suggestion is put in respect of the situation of the house of Jaswantbhai. As found Jaswantbhai's house was in an open plot and the witness has admitted that during vacation the boys are playing cricket.Witness has denied that as Rakesh was playing much cricket and was taking much interest in cricket, for which Jaswantbhai had a grievance for which complaint is filed.As found from her cross-examination that after disclosing the story by Nidhi,she has not stated to Urvi and Nidhi has disclosed about the incident to her and not by Urvi. She has also admitted that on Saturday she has not inquired from Urvi. However,she has inquired that on the date of incident where Urvi had gone and what was doing. Urvi had replied that she was at her residence and was watching the picture and at that time Nidhi came weeping by naming Rakesh and after changing cloth she slept and Urvi could not understand such talk. 5. From the evidence of complainant Miraben it transpires that she and her husband were leaving the house together at 10.30 A.M. and were returning home at 6.30 P.M. It is further found that Nidhi was attached with Nirmalaben as a baby sitter when she was hardly 6 months old. In respect of the incident dated 29.4.95,it is only when she came from the office in the evening Nidhi has complaint of pain at the private part and she has provided soda water and on the next day Nidhi was taken to Dr. Bhavsar where Dr. Bhavsar has examined Nidhi. In the cross- examination it is found that Nidhi has disclosed full story about the incident to her father when she was also present. The house of accused and the house of complainant are on the same line in the same society. Defence of the accused is that the house of Nirmalaben was closed as all the members had gone to Mumbai to attend the marriage in the family of Maryben, who is also residing in Bungalow No.81 in the same Society. When she came to know about the fact of incident narrated by minor Nidhi, who is hardly 7 years, her husband had decided to file complaint before Police and accordingly on Monday at 10 P.M. a complaint was filed before police and further that statement of Nidhi and others were also recorded by the police on the same day. As per the prosecution case a complaint was filed by Miraben,mother of victim Nidhi, on 1.5.95 in respect of the incident which has occurred on 29.4.95. As found from the evidence of P.W.6 Miraben, victim minor Nidhi has complained on 29.4.95 that she was not in a position to pass urine and she has some pain on her private part. In normal course she has provided soda water to her and the next day when Nidhi had made complaint for her pain in her private part,she was taken to Dr. Bhavsar,whose dispensary and the house is situate in the same society and as per the examination by Dr. Bhavsar, Dr. Bhavsar has in term found that on private part of Nidhi there was external lacerated swelling and after she returned from Dr. Bhavsar's Dispensary, Nidhi was further inquired and she has narrated the full incident which had occurred on the previous day at the house of accused Rakesh. A complaint was filed on Monday i.e. on 1.5.95 after she discussed with her husband. 6. At this juncture, we refer to the evidence of P.W.11 Bhikhubhai. He deposed before the court that on 1.5.95 he was attached to Umra Police station and on that day at 22.30 hours the complainant Miraben had come and she disclosed the incident, which was recorded by his Writer and after recording the F.I.R., the same was sent at the Police Station for registering the offence. On seeing the F.I.R. mark 'A' he deposed that the said complaint is of Miraben and the same was recorded as per the say of Miraben and she has put her signature before him. The complaint Mark 'A' was given Exh.24. In the cross examination he has deposed that alongwith Miraben her minor daughter Nidhi and her husband Dilipbhai had come to the Police Station and he issued the yadi in favour of the Medical Officer referring the minor Nidhi. He has not recorded the statement of Dilipbhai or minor Nidhi. He denied the suggestion that no such complaint was given by Miraben. F.I.R. Exh.24 given by Miraben disclosed about the incident which has occurred on 29.4.95 and as per the F.I.R. Rakesh who is residing in the same society had committed rape on minor Nidhi between 15 to 16 hours while she has gone to play at the house of the accused. In view of the evidence of P.W.11 Bhikhubhai, the complainant Miraben had gone to the Police station at 22.30 hours on 1.5.95 and the complaint of Miraben was recorded by the Writer of Umra Police Station in respect of the incident of rape committed by the appellant accused. 7. At this juncture it is equally necessary to consider the evidence of minor victim Nidhi. Minor Nidhi aged 9 years- P.W.7 had deposed before the court.As found from her evidence that before proceeding with recording of the evidence, the court has tried to inquire whether the witness is in a position to understand the question and the court has put several questions including her name,mother's name, where she studies,where she is residing, the name of the river in Surat, about the direction and as found from her reply, minor Nidhi, aged 9 years, had given intelligent answers and the learned trail Judge has after considering that her answers are satisfactory, she was permitted to give evidence. On going through her evidence,her evidence is natural. As found from her evidence she has deposed that she stayed with her parents and elder sister. Her mother is serving while her father is doing business of advertisement and her parents are leaving house at 10.30 in the morning and they return in the evening at 6.30. While referring to the incident, according to her on 29.4.95 in the noon she alongwith her elder sister were in the house. She has gone to Nirmalaben's house for playing.When she has gone to the house of Nirmalaben at that time Dipu and Rakesh were there. She identified Rakeshbhai, who was found in the court. Dipu was a small boy, who was at the relevant time in the cradle. Rakeshbhai took Dipu in back room and thereafter Rakeshbhai had closed the front door and she slept on a bed. Thereafter, Rakeshbhai had increased the volume of T.V. and removed her cloth and thereafter removed her Paijama and thereafter accused has also removed his cloth and accused slept over her and he has done some work 'RAKESHBHAI GANDHU GANDHU KARELU'. She refused. Further in the private part of Rakeshbhai she found pus. Thereafter, Rakeshbhai had worn his cloth which were removed by him and she has also worn cloth and gone to her house by weeping.She has changed the cloth and slept. In the evening her parents came at the house and she has complained that she has some pain on her private part and her mother has given soda water. On the next day she was taken to Dr.Bhavsar's Dispensary where Dr. Bhavsar has examined her and her statement was recorded by the Police. While showing the muddamal article No.2 Paijama and frock, she deposed that the same are belonging to her. However, while seeing the knicker she has not identified the same as of her. In the cross examination she has deposed that at the relevant time she was studying in First standard and her examination was over. She used to go to School at 12 noon and return at 5.30 P.M. She goes to School in rickshaw while Urvi is going on a cycle. The school time of Urvi is also the same and she is also studying in the same School and Urvi is at present studying in 7th Standard. At the time when she has gone to the house of Nirmalaben for playing, Dipu was also playing with her. She played with Dipu for 5 to 10 minutes. She has denied that at the time when she went to the house of Nirmalaben, Nirmalaben was present. The house of Nirmalaben consist of one room and kitchen and in the front of the house there is one Otla. She and Dipu were playing in on Otla. Dipu is younger to her. Dipu was not staying in Punamnagar Society. She used to go to play with Dipu every day even prior to the incident. At what time Dipu came, she has no idea and further Dipu was brought by his mother. At the time when Mummy had given soda water she had not talked with her and denied that she had gone to play after taking soda water. She has not got up on that night for dinner though her mummy has awakened her. She has not disclosed to Dr. Bhavsar about the incident. Dr. Bahvsar has given some medicine. Thereafter she played for some time. After returning from Dr. Bhavsar's place, mummy had made inquiry for which she was crying and she had gone inside the room. She has disclosed about the incident first to her mummy and the day on which she had disclosed to her mummy on that day they had gone to Police Station. She alongwith her parents and one uncle had gone to the police station where the police has recorded her statement. Her further statement was also recorded by the police after two-three days.She used to go to house of Nirmalaben in the morning and noon for playing and when nobody is found in the house she used to go for the whole day. Even when Urvi was present in her house she used to go to Nirmalaben's place. She denied that Urvi also had accompanied her at the house of Nirmalaben. She had denied that she alongwith Dipu had not gone inside the room and they were playing in the Otla and as they were playing in Otla,Rakeshbhai had taken both inside the house. When Rakeshbhai took Dipu inside the room at that time Dipu was playing with her. She has denied the suggestion that while playing she has fallen down and due to fall she was crying and gone to her house. She has denied the suggestion that at that time Nirmalaben was also at the house.She has denied that no such incident has occurred. It is further found from the cross examination that after going to Dr. Bhavsar on the next day they