CR.A/679/2002 1/56 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 679 of 2002 WITH CRIMINAL APPEAL No. 2287 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE H.B.ANTANI ============================================================== 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? ============================================================== CRIMINAL APPEAL No. 679 of 2002 NANUBHAI BALABHAI THAKORE – APPELLANT Versus STATE OF GUJARAT – RESPONDENT WITH CRIMINAL APPEAL No. 2287 of 2005 ATUL @ MANSUKH BIKHABHAI KARELIA AND ANOTHER – APPELLANT Versus STATE OF GUJARAT – RESPONDENT ============================================================== Appearance in both the appeals: MR BS SUPEHIA, FOR THE APPELLANTS. MR KT DAVE, ADDITIONAL PUBLIC PROSECUTOR, FOR THE RESPONDENT. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI CR.A/679/2002 2/56 JUDGMENT Date : 03/02/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) 1. Criminal Appeal No. 679 of 2002, filed by original accused No. 3 under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment dated June 22, 2001, rendered by the learned Additional Sessions Judge, Gondal, in Sessions Case No. 129 of 1999, by which he is convicted for commission of offences punishable under Section 366 as well as Section 376(2) (g)IPC, and sentenced to suffer RI for 5 years and fine of Rs. 2,000/- (Rupees Two Thousand Only), in default RI for 1 year, for commission of offence punishable under Section 366 IPC, as well as RI for 10 years and fine of Rs. 10,000/- (Rupees Ten Thousand Only), in default RI for 1 year, for commission of offence punishable under Section 376(2)(g) IPC. Criminal Appeal No. 2287 of 2005, filed by original accused Nos. 1 and 4 in Sessions Case No. 129 of 1999 under Section 374(2) of the Code of Criminal Procedure, 1973, is also directed against the same judgment, by which the two appellants are convicted for offences punishable under Sections 366 as well as 376(2)(g) IPC and each sentenced to RI for 5 years and CR.A/679/2002 3/56 JUDGMENT fine of Rs.2,000/- (Rupees Two Thousand Only), in default RI for 1 year, for commission of offence punishable under Section 366 IPC, as well as RI for 10 years and fine of Rs. 10,000/-(Rupees Ten Thousand Only), in default RI for 1 year, for commission of offence punishable under Section 376(2)(g) IPC. As both the appeals are directed against common judgment dated June 22, 2001, rendered in Sessions Case NO. 129 of 1999, this Court proposes to dispose them of by this common judgment. 2. In view of law laid down in Bhupinder Sharma Vs. State of Himachal Pradesh, (2003) 8 SCC 551, the name of the victim is not indicated in this judgment. 3. The facts emerging from the record of the case are as under: Babubhai Jethabhai, who is father of the victim, is residing at Village Vagadia, Taluka Jamnagar, with his family. Earlier, his marriage had taken place with Ms. Dudhiben, who was daughter of Jadhav Savani of Village Monpara. During the subsistence of her marriage with Babubhai, Ms. Dudhiben gave birth to the victim. The relations between Babubhai and his wife Dudhiben became CR.A/679/2002 4/56 JUDGMENT strained which resulted into dissolution of their marriage. Thereafter, Babubhai got remarried with Savitaben of Village Devpara, who during subsistence of her marriage with Babubhai, gave birth to two sons. It may be said that right from her birth, the victim was mentally retarded. However, in order to see that the victim was well maintained, Babubhai got her married to one Rajesh Gordhan of Jamnagar, who was handicapped. Rajesh Gordhan was doing sundry work and the victim resided with him for about one and a half year. After one and a half year of his marriage with the victim, Rajesh Gordhan left the victim at her parental house, stating that it was not possible for him to maintain her. The behaviour of the victim was abnormal and Babubhai was of the view that she should be treated at Hosptial for Mental Health, Jamnagar. He, therefore, made an application dated May 14, 1999 before the learned Chief Judicial Magistrate, Jamnagar under the provisions of Indian Lunacy Act, 1912. The learned Chief Judicial Magistrate vide order dated May 14, 1999 directed the Hospital for Mental Health, Jamnagar to admit the victim and treat her. Accordingly, the victim was admitted in Hospital for Mental Health, Jamnagar and treated by Dr. Arunbhai Khatri. It was found by Dr. Khatri that the CR.A/679/2002 5/56 JUDGMENT victim was smiling to herself and was not talking, but her sleep and appetite were normal. The Discharge Committee of the Hospital examined the victim on August 6, 1999 and decided to discharge the victim from Hospital, as members of the Committee were of the view that there was improvement in behaviour of the victim. Accordingly, the victim was discharged from Hospital on September 10, 1999 after arrangement of Police Guard was made. The police handed-over custody of the victim to her father Babubhai. Dr. Khatri had prescribed follow-up treatment, which was not given by relatives of the victim. After discharge from Hospital, Babubhai did not find any improvement in behaviour of the victim. He, therefore, called his son-in-law Rajesh Gordhan from Jamnagar. Accordingly, Rajesh Gordhan met Babubhai and suggested to him that the victim should be lodged at religious place situated at Satadhar. The suggestion made by Rajesh Gordan was accepted by Babubhai and accordingly, the victim was left at religious place of Satadhar. Thereafter, after 15 or 20 days, the authorities of the religious place, situated at Satadhar, came and lodged the victim at the house of her father i.e. Babubhai. Therefore, again, Babubhai called his son-in-law Rajesh. This time, Rajesh suggested that the CR.A/679/2002 6/56 JUDGMENT victim should be lodged at Village Virpur, where temple of Lord Jalaram is situated. Accordingly, the victim was left to the care of the temple authorities. The temple authorities did not take any interest in her, as a result of which, though the victim was residing in Village Virpur, she was wandering here and there in the town. On October 2, 1999, the victim went to hut of one Hansrajbhai Jadhav, situated in Virpur Village for begging. It may be stated that Hansrajbhai Jadhav was residing in the hut with his wife Kalavatiben. Hansrajbhai gave some articles of food to the victim to eat and thereafter, the victim went away from the door of hut occupied by Hansrajbhai. On October 2, 1999, it was raining and, therefore, the victim was sitting near the hut of Hansrajbhai Jadhav. At about 8.00 P.M., the original accused No. 6 i.e. Nathabhai Rupabhai Sasla, who was maintaining himself by driving rickshaw came near the hut of Hansrajbhai Jadhav with his rickshaw. At the instance of Hansrajbhai Jadhav, the original accused No. 6 picked up the victim and made her to sit in his rickshaw. One Ms. Narangiben Bachubhai Rathod, residing at Village Virpur, went in the morning of October 3, 1999 to purchase vegetables. She found that the victim was lying near hut of luhar and several persons had collected CR.A/679/2002 7/56 JUDGMENT there. Those, who had collected near the hut of luhar, informed Ms. Narangiben that the victim was lying since 7 A.M. and that some arrangements should be made about her. Ms. Narangiben consoled the victim and asked her name as well as the place where she was residing. Thereupon, the victim stated that she was of Village Vagadia and also disclosed her name, stating that she was belonging to Patel community. Ms. Narangiben tried to know as to how she was found in Village Virpur, whereupon the victim informed Ms. Narangiben that she was brought to Village Virpur by her parents and was left in a temple. Ms. Narangiben further asked the victim as to how she was found lying on the road when she was left in a temple by her parents and thereupon, the victim informed Ms. Narangiben that one rickshaw driver had taken her and that she was subjected to rape. Ms. Narangiiben asked her whether she was able to identify the place where rape was committed on her, and after saying “yes”, the victim took Ms. Narangiben to the place where rape was committed on her. The place was Mataji-No-Mudh (sanctum sanctorum) of Goddess Mataji. The victim had put on sari and blouse which were found by Ms. Narangiben to be dirty. From Mataji-No-Mudh, Ms. Narangiben brought the victim to her house where the victim informed Ms. Narangiben that there CR.A/679/2002 8/56 JUDGMENT was no one in the world to take care of her. Ms. Narangiben, thereafter, sent the victim to water-pump to enable the victim to have a bath where the victim took bath and washed her clothes. On the next day, a person named Atul Koli, residing near house of Ms. Narangiben, approached Ms. Narangiben and asked Ms. Narangiben to hand-over the custody of the victim to him. Ms. Narangiben refused to hand-over the custody of the victim to Atul Koli i.e. original accused No. 1 in Sessions Case No. 129 of 1999. Thereupon, Atul Koli attempted to drag the victim by catching hold of her hands, but Ms. Narangiben foiled that attempt by saying that she would not hand-over custody of the victim to him even if she was murdered. Atul Koli, thereupon, threatened Ms. Narangiben and asked her to drive away the victim from her house. Atul Koli also informed Ms. Narangiben that he, in the company of Bharwad Natha Rupa i.e. original accused No. 6, Bharwad Tisubhai i.e. original accused No. 2, Nanubhai Koli i.e. original accused No. 3 and Puna Mohan Koli i.e. original accused No. 4, had committed rape on the victim and that they would see to it that she was not able to reside peacefully in Devpara area if complaint before the Police was filed. In spite of threats administered to her, Ms. Narangiben was CR.A/679/2002 9/56 JUDGMENT determined to bring the culprits to book. Therefore, undeterred by the threats administered by original accused No. 1, Ms. Narangiben took the victim to Jetpur Taluka Police Station and lodged complaint against Atul Koli and others, who were named by him. On the basis of complaint lodged by Ms. Narangiben, offences punishable under Section 366 and 376(2)(g) IPC were registered against the accused. The investigation into the complaint of Ms. Narangiben was made by PSI Mr. L. B. Chudasama, who was then PSI Jetpur Taluka Police Station. PSI Mr. Chudasama went to the place of incident shown by the victim. He found that it was a room where idol of Goddess was installed and two cots were kept in the room. It was also noticed by him that there was a TV in the room. PSI Mr. Chudasama drew panchnama of place of incident in presence of panch-witnesses and seized two mattresses which were found to be blood and semen stained. He recorded statement of the victim and seized clothes of the victim under a panchnama. The victim was referred to Government Medical Hospital for examination. The Investigation Officer recorded statements of those persons who were supposed to be conversant with the facts of the case. He arrested five accused i.e. Atul @ Mansukh Bhikhabhai Karelia, Tido @ Tisu Nagjibhai Matia, CR.A/679/2002 10/56 JUDGMENT Nanubhai Balabhai Thakore, Mahesh @ Munno Mohanbhai Gohil and Pramod Eknath Patil on October 5, 1999 and seized clothes put on by them under a panchnama. Thereafter, accused Nathabhai Rupabhai Sasla was also traced and arrested under a panchnama. The accused were referred to the Medical Officer of Government Medical Hospital, Jetpur, for Medical Examination. During the course of investigation, the rickshaw, in which the victim was picked-up by original accused No. 6 when she was sitting near the hut of Hansrajbhai, was also seized. The samples of pubic hair, saliva, semen, blood, etc. of the appellants and other accused were collected. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory for analysis. After obtaining the report from Forensic Science Laboratory (“FSL”, for short) and the certificate from the Superintendent, Mental Hospital, Jamnagar, the six accused were chargesheeted in the Court of learned Judicial Magistrate (First Class), Jetpur, for commission of offences punishable under Sections 366 and 376(2)(g) IPC. As offences punishable under Sections 366 and 376(2)(g) IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Rajkot at Gondal for trial, where it was numbered as CR.A/679/2002 11/56 JUDGMENT Sessions Case No. 129 of 1999. 3. The learned Additional Sessions Judge, Gondal, to whom the case was made over for trial, framed charge against the six accused at Exh. 1, for commission of offences punishable under Sections 363, 366, 376(2)(g) and 506(2) IPC. The charge was read-over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (i) Medical Officer Dr. Hetalben Jayantilal Nayak, who had medically examined the victim, as PW 1, at Exh. 15; (ii) Dr. Jagdishbhai Popatbhai Viredia, who conducted medical examination of accused, as PW 2, at Exh. 20; (iii) Hansrajbhai Mohanbhai Jadhav, near whose hut the victim was sitting and was picked-up by original accused No. 6, as PW 3, at Exh. 37; (iv) Devidas Hematram Chatrabuj as PW 4, at Exh. 38; (v) Idrishbhai Harunbhai Chhavad as PW 5, at Exh. 39; (vi) panch Keshubhai Gandubhai Gohil as PW 6, at Exh. 46; (vii) panch Praful Shantilal Joshi as PW 7, at Exh. 47; (viii) panch Dilipbhai Nanjibhai Dabhi as PW 8, at Exh. 48; (ix) panch Kanubhai Devayatbhai Herma as PW 9, at Exh. 49; (x) panch Khimjibhai Govabhai Rathod as PW 10, at Exh. 50; (xi) panch Mukeshbhai Devayatbhai Herma as PW 11, at Exh. 51; (xii) Ms. Kalavatiben CR.A/679/2002 12/56 JUDGMENT Sumangalsinh as PW 12, at Exh. 52; (xiii) Ms. Rekhaben Harishbhai Ganatra as PW 13, at Exh. 53; (xiv) Dr. Arunbhai Jayantilal Khatri as PW 14, at Exh. 57; (xv) Dr. Naginbhai Bhuvanbhai Sarvaiya as PW 15, at Exh. 65; (xvi) Rajabhai Karamsibhai Mir as PW 16, at Exh. 70; (xvii) the victim as PW 17, at Exh. 71; (xviii) complainant Ms. Narangiben Bachubhai Rathod as PW 18, at Exh. 72; (xix) father of the victim i.e. Babubhai Jethabhai Jadhav as PW 19, at Exh. 73; and (xx) Investigating Officer Mr. Lakhuba Bhurubha Chudasama as PW 20, at Exh. 74, to prove its case against the accused. The prosecution also produced documentary evidence, such as: (i) certificate issued by Dr. Hetalben Naik after examining the victim at Exh. 16; (ii) yadi forwarded by PSI to Medical Officer, Government Hospital, Jetpur, to examine the five accused named therein, at Exh. 21; (iii) medical papers of accused Mahesh at Exh. 31; (iv) certificate issued by Dr. Viredia after examining accused Mahesh, at Exh.33; (v) Medical papers of accused Pramod, at Exh. 34; (vi) certificate issued by Dr. Viredia after examining accused Pramod, at Exh. 36; (vii) arrest panchnama of accused Atul, Tido, Nanubhai, Mahesh and Pramod, etc. and seizure of their clothes, at Exh. 40; (viii) panchnama indicating recovery of clothes of accused Pramod, at Exh. 41; (ix) CR.A/679/2002 13/56 JUDGMENT arrest memo of original accused No. 6, at Exh. 42; (x) panchnama indicating recovery of clothes put on by accused Nathabhai Rupabhai at the time of incident, at Exh. 43; (xi) panchnama indicating seizure of rickshaw, at Exh. 44; (xii) order passed by the learned Chief Judicial Magistrate directing Hospital for Mental Health, Jamnagar to admit the victim and treat her, at Exh. 58; (xiii) Medical papers of the victim prepared at the Hospital for Mental Health, Jamnagar, at Exh. 60; (xiv) report by Superintendent, Mental Hospital, after examining the victim, at Exh.63; (xv) report issued by Dr. Sarvaiya, after examining the original accused No. 6, at Exh. 68; (xvi) complaint of Ms. Narangiben, at Exh. 75; (xvii) panchnama of place of incident, at Exh. 77; (xviii) panchnama indicating seizure of clothes of the victim, at Exh. 78; (xix) arrest panchnama of five accused i.e. Atul, Tido, Nanu, Mahesh and Pramod, at Exh. 79; (xx) deed of sale of rickshaw by one Sulemanbhai to Devidas, at Exh. 81; (xxi) report of FSL at Exh. 84; etc. in support of its case against the accused. 4.1 After recording of evidence of prosecution witnesses was over, the learned Judge of the Trial Court explained to the accused, the circumstances appearing CR.A/679/2002 14/56 JUDGMENT against them in the evidence of prosecution witnesses and recorded their further statements, as required by Section 313 of the Code of Criminal Procedure, 1973. 4.2 In his further statement, the original accused No. 1 i.e. Atul Bhikabhai Karelia claimed that he was doing labour work, as instructed by one Chavdabhai, who was serving in Gujarat Electricity Board, and along with him, accused Mahesh @ Munno Mohanbhai and accused Nanubhai were also working. According to him, there were disputes between Mr. Chavda, who was serving in Gujarat Electricity Board, and Ms. Narangiben and, therefore, he was falsely implicated in the case by Ms. Narangiben. The original accused No. 1 further claimed that he was not knowing anything about the incident and was innocent. According to him, a false case was lodged against him, as a result of which, the reputation of the family was besmirched. What was mentioned by original accused No. 1 was that he was innocent and should be acquitted. 4.3 The original accused No. 2 i.e. Tido @ Tisu Nagjibhai Matia, in his further statement, mentioned that he was friend of original accused No. 1 Atul and as he had close relations with original accused No. 1 i.e. CR.A/679/2002 15/56 JUDGMENT Atul, he was falsely implicated in the case. 4.4 The original accused No. 3 i.e. Nanubhai Balabhai Thakore, in his further statement, mentioned that he was falsely implicated in the case by Ms. Narangiben. According to him, he had come to Village Virpur from Ahmedabad, 5 days before he was arrested and a false case was lodged against him. 4.5 The original accused No. 4 i.e. Mahesh @ Munno Gohil, in his further statement, mentioned that Atul, Nanubhai and he were approaching Mr. Chavda of Gujarat Electricity Board for obtaining work, and as relations between Ms. Narangiben and Mr. Chavda were strained, his name was falsely given by Ms. Narangiben. According to him, he had informed PSI Mr. Chudasama that they were innocent and were not knowing anything and thereupon, PSI Mr. Chudasama had asked him to give names of 7 other persons, who were wealthy. What was mentioned by original accused No. 4 in his further statement was that it was not possible for him to give names of innocent persons falsely, as demanded by PSI Mr. Chudasama and, therefore, he was falsely implicated in the case, but he was innocent. CR.A/679/2002 16/56 JUDGMENT 4.6 The original accused No. 5 i.e. Pramod Eknath Patil, in his further statement, mentioned that he was serving in Jalaram Mandir and his duty hours were 6.00 A.M. to 10.00 P.M. According to him, he was not knowing Ms. Narangiben at all and was staying opposite Railway Station, Virpur. What was asserted by accused No. 5 in his further statement was that he was falsely implicated in the case and was not knowing anything about the incident at all. 4.7 The original accused No. 6 i.e. Nathabhai Rupabhai Sasla, in his further statement, mentioned that before the incident, he was having matador which was detained by the police. According to him, he had purchased matador from PSI Mr. Parmar but could not make full payment of the consideration, as a result of which PSI Mr. Chudasama was visiting him at his house and demanding the due amount. It was further mentioned by accused No. 6 in his statement that he was not able to make full payment of matador belonging to PSI Mr. Parmar and, therefore, the matador was detained by PSI Mr. Chudasama. According to him, he presented himself with reference to instant case on his own at Jetpur Police CR.A/679/2002 17/56 JUDGMENT Station where he was beaten and asked to give names of owners of guest-house. What is asserted by accused No. 6 in his statement is that he refused to give names of innocent persons and, therefore, he was falsely implicated in the case. It was also mentioned by him that he was staying in the area where Ms. Narangiben was staying and that his prestige was dear to him but he was falsely implicated in this case. 4.8 It is relevant to notice that no defence evidence whatsoever was led by any of the accused to substantiate what was stated and / or claimed in the further statement. 5.1 On critical analysis of the evidence adduced by the prosecution, the learned Judge held that following circumstances were firmly established by the prosecution: (i) Witness Hansarjbhai had witnessed that on October 2, 1999, original accused No. 6 Nathabhai Rupabhai had taken the victim with him in his rickshaw. (ii) Between night of October 2, 1999 and October 3, CR.A/679/2002 18/56 JUDGMENT 1999, rape was committed on victim at the place known as Mataji-No-Mudh, which was situated behind GEB Sub-station, Virpur, after making her lie on the mattresses, as a result of which, the mattresses were found to be semen stained whereas the petticoat put on by the victim was also found to be semen stained and vaginal swab also indicated presence of semen. (iii) In the morning of October 3, 1999, the victim was found lying in a helpless condition near the hut of luhar, as a result of which complainant Ms. Narangiben Bachubhai Rathod had consoled her, whereupon the victim had informed her that she was taken by a rickshawala and, thereafter, raped. The victim had shown the place where rape was committed which turned out to be Mataji-No-Mudh. Thereafter, she brought the victim to her house and permitted the victim to stay in her house for two days i.e. October 3, 1999 and October 4, 1999, and as the victim was vomiting, she was taken to dispensary of Dr. Chandubhai for treatment. CR.A/679/2002 19/56 JUDGMENT (iv) Though it was learnt by complainant Ms. Narangiben that the victim was subjected to rape on October 3, 1999, Ms. Narangiben could not file the complaint because names of perpetrators of crime were not disclosed to her by the victim nor the identification marks, on the basis of which identification of perpetrators of crime could be established, were disclosed to her. (v) On October 5, 1999, accused No. 1 Atul @ Mansukh Bhikabhai had met Ms. Narangiben on way and threatened her to drive away the victim, saying that he and accused No. 2 Bharwad Tido as well as accused No. 3 Nanubhai Balabhai and accused No. 4 Mahesh @ Munno as well as accused No. 6 Nathabhai Rupabhai had committed rape on the victim, and if complaint was filed, she would not be able to stay in Devpara area, and on such assertion being made by accused No. 1, complainant Ms. Narangiben had learnt that the victim was subjected to rape by abovereferredto persons, and, therefore, on that very day, Ms. Narangiben had lodged complaint against those five persons at Jetpur Taluka Police Station. CR.A/679/2002 20/56 JUDGMENT (vi) In the complaint, name of accused No. 5 was not given because it was not disclosed by original accused No. 1 to the complainant, but, subsequently, original accused No. 5 was prosecuted, as, his name, as one of the perpetrators of crime, was disclosed by other accused during their interrogation. (vii) On October 5, 1999, original accused Nos. 1 to 5 were arrested, and they were