CR.A/910/1997 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 910 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= JESHING @ HANUMAN HARKHABHAI KOLI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS NITA C BANKER for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 09/07/2008 ORAL JUDGMENT 1. The present appellant has preferred this appeal against the judgment and order of conviction and sentence dated 4-9-1997 CR.A/910/1997 2/7 JUDGMENT passed by the learned Addl.Sessions Judge, Morbi in Sessions Case no.50 of 1996 whereby the present appellant came to be convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer R.I. for seven years and fine of Rs.10,000,/- in default, further R.I. for two years. He was also convicted for the offence punishable under Section 3(I) (II) of the Prevention of Atrocities Act and sentenced to suffer R.I. for three years and fine of Rs.1,000/-, in default, further R.I. for on year. 2. The prosecution case in brief is as under: 2.1 The incident in question took place on 25th July, 1996 in Morbi near Vegetable Mill. It is alleged by the prosecution that on the said day at about 12.00 noon the victim i.e. daughter of the complainant went towards the bank of the river for collecting cow dung and while she was collecting cow dung the accused came there and told her that there is cow dung at the place where he is tying the cows and when she resisted, the accused caught-hold of her and took her to a room behind the vegetable mill, bolted the doors of the room from inside and with the use of force had sexual intercourse with the victim a minor girl who was only eleven years old at the time of the incident. The complaint came to be lodged by one Khodabhai- the father of the victim before P.I. Morbi City, on the basis of which offence was registered, investigation was carried out and charge- CR.A/910/1997 3/7 JUDGMENT sheet was filed against the appellant-accused for the offence punishable under Section 376 of the Indian Penal Code as also under Section 3(I) (II) of the Prevention of Atrocities Act. The offence was registered as CR no.171 of 1996 and then numbered as Sessions Case no.50 of 1996. The learned Additional Sessions Judge framed charge Exh.1 under Section 228 of the Criminal Procedure Code for the above referred offences. The accused pleaded not guilty to the charges levelled against him and claimed to be tried. 3. To prove its case against the accused, the prosecution has examined the following witnesses. 1. PW 1 Kodabhai Amarsingbhai Harijan at Exh.5. 2. PW 2 Minor victim at Exh.7. 3. PW 3 Amrutben Kodabhai at Exh.8. 4. PW 4 Abdul Kasambhai (Panch) at Exh.9. 5. PW 5 Kasam Vaklibhai at Exh.11. 6. PW 6 Ashok Takatsing (Panch) at Exh.12. 7. PW 7 Prakash Hiralal (Panch) at Exh.14. 8. PW 8 Dr. Pragjibhai Jethabhai at Exh.16. 9. PW 9 Dr.Narendrasing Natubha Jhala at Exh.20. 10.PW10 Mr. A.N.Siddique, P.I. At Exh.27. 11.PW 11 Dipak Shankerlal, DYSP at Exh.28. CR.A/910/1997 4/7 JUDGMENT 4. The prosecution has also produced the following documentary evidence: 1. Original complaint at Exh.6. 2. Medical certificate issued by Dr.Pragjibhai Jethabhai at Exh.18. 3. Case papers dt.27-7-1996 with regard to physical examination of the victim with history narrated by victim at Exh.23 4. Birth Certificate of minor victim at Exh.38. 5. After recording the evidence of prosecution witnesses further statement of the accused under Section 313 of the Criminal Procedure Code was recorded in which his case was that a false complaint is filed as a quarrel had taken place between him and the complainant with regard to cutting of trees. The accused denied to examine any witness and also denied to give evidence on oath. 6. After hearing the learned APP as well as the Advocate for the accused, the learned Additional Sessions Judge after taking into consideration the evidence on record convicted the present appellant-accused and passed the judgment and order of conviction and sentence as stated in para-1 of this CR.A/910/1997 5/7 JUDGMENT judgment. Hence, the present appeal. 7. Heard learned Advocate Ms. Nita Banker for the appellant and learned APP Mr. U.R.Bhatt for the respondent. 8. Ms. Nita Banker learned Advocate for the appellant has taken me through the entire evidence on record. The birth certificate of the victim is produced before the trial Court at Exh.38 and it is proved beyond reasonable doubt that at the time of the incident the victim was 10 years and six months old and this fact is not challenged by the accused. It is the submission of learned Advocate Ms. Nita that as per the medical evidence penetration had not taken place and so there is a possibility of false implication by means of a false complaint. According to the learned Advocate, the learned trial Judge has not taken this fact into consideration and hence the conviction based on a false complaint cannot be sustained, and therefore, the accused deserves to be acquitted. As per the deposition of Dr. Jhala and as per the medical certificate it is clear that there was swelling on the private part of the victim. It is also specifically stated by Mr. Jhala on oath that if any person tries for a long time for sexual intercourse with a minor victim by lying over her if the passage into the vagina is very narrow, it is possible that there may not be penetration CR.A/910/1997 6/7 JUDGMENT and hymen cannot be torn. The minor victim has specifically narrated on oath the manner in which the incident took place which is corroborated by the medical evidence. It is the evidence of the victim that is important I have gone through her evidence and her version appears to be quite natural and in this case the evidence of the victim is corroborated by the medical evidence on record. The victim has specifically stated in her evidence that the accused carried her to a room, gagged her, undressed himself and lay over her for a long time and forcibly did the act of sexual intercouse with her. The theory of false complaint having been filed is not acceptable as no person would file a false complaint at the cost of the reputation of his minor daughter owing to some personal enmity. Looking to the Section itself it is abundantly clear that for an offence of rape mere attempt to penetrate is sufficient and conviction can be based on the same if proved beyond reasonable doubt. In the instant case, it is proved through the medical certificate that there was swelling on the private part of the victim , and therefore, it can safely be concluded that there was an attempt to penetrate which would constitute an offence of rape. 9. Having regard to the facts and circumstances of the present case, the serious nature of the offence and the manner in which it has been committed,I am constrained to CR.A/910/1997 7/7 JUDGMENT hold that offence of rape is committed by the appellant- accused and the learned trial Judge has rightly passed the judgment and order of conviction and sentence against the appellant accused. I see no reason to come to a different conclusion. I, therefore, do not find any compelling circumstances warranting my interference in the conviction and sentence of the appellant. 10. In the result, the appeal fails and is dismissed. (M.D.Shah,J.) lee.