CR.A/1457/2004 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1457 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 ? ========================================================= JIGNESHKUMR @ JIGO TRIKAMLAL PARECHA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR NK MAJMUDAR for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 19/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) The appellant, who was original accused in Sessions Case CR.A/1457/2004 2/9 JUDGMENT No. 296 of 2003, has preferred this appeal challenging his conviction for the offences punishable under sections 363, 366 and 376 of the Indian Penal Code [IPC] recorded by the Ld. Addl. Sessions Judge, Court No. 2, Ahmedabad [for short 'the Ld. Trial Judge'] on 21/7/2004 in the aforesaid Sessions Case. The appellant accused was awarded sentence of rigorous imprisonment [RI] for 5 years and fine of Rs.1,000/-, in default of payment of fine, RI for one year for the offence punishable under section 363 of the IPC, RI for 7 years and fine of Rs.2,000/-, in default of payment of fine, RI for one year for the offence punishable under section 366 of the IPC and RI for 10 years and fine of Rs.2,000/-, in default of payment of fine, RI for one year for the offence punishable under section 376 of the IPC. 2. According to the prosecution case, the incident occurred on 18/1/2003 at about 10.00 a m, when the accused kidnapped Mallika, aged about 14 years and 6 months from her house situated in Dwarkesh Nagar, Ahmedabad. It is alleged that the accused thereafter raped Mallika. Rameshbhai Pushabhai, father of Mallika, lodged FIR on 20/1/2003 before Amraiwadi Police Station, Ahmedabad. Initially, the offences punishable under sections 363 and 366 of the IPC came to be registered. Thereafter, during the course of investigation, both the accused and CR.A/1457/2004 3/9 JUDGMENT Mallika came to be traced out by the police and after recording the statement of Mallika, the offence of rape punishable under section 376 of the IPC was added. Mallika was sent for medical examination. Medical examination of accused was also performed. Clothes of accused and Mallika were sent for analysis to Forensic Science Laboratory [FSL]. After completing the police investigation, charge-sheet came to be filed in the Court of the Ld. Metropolitan Magistrate, Court No. 7, Ahmedabad. As the offence was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions, Ahmedabad, which was registered as Sessions Case No. 296 of 2003. 3. The Ld. Trial Judge framed charge against accused at exh. 1, to which the accused did not plead guilty and, therefore, the prosecution adduced its oral and documentary evidence. After completion of the oral evidence, the Ld. Trial Judge recorded further statement of accused under section 313 of the Criminal Procedure Code [Cr. P.C]. The accused denied generally all the allegations levelled against him by the prosecution and submitted that he was falsely implicated in this case. 4. After appreciating the evidence on record and considering the arguments advanced on behalf of both the sides, the Ld. Trial Judge, CR.A/1457/2004 4/9 JUDGMENT by impugned judgment and order, recorded the conviction of the accused for the offences punishable under sections 363, 366 and 376 of the IPC and awarded the sentence as hereinabove referred to in this judgment. 5. Ld. Advocate Mr. Khambholja for learned advocate Mr. NK Majmudar for the appellant submitted that the prosecution did not adduce any cogent and convincing evidence implicating the accused with the crime. Prosecutrix Mallika examined at exh. 7 did not support the case of the prosecution and she was declared hostile. Even when Mallika was sent for medical examination, she stated before the Medical Officer that she herself had gone with the accused and she clearly stated that there was no any physical relation between them. Thus Mallika in her testimony before the Court did not involve the accused with the crime nor in her first version before the Medical Officer in form of history involved the accused with the crime. Thus, the very involvement itself is not proved by the prosecution. It is submitted that according to the prosecution case, Mallika left the house of her father on 18/1/2003. However, her father Rameshbhai lodged FIR on 20/1/2003. It is the case of the prosecution that when accused and Mallika were at Sidhdhpur, cousin brother of Mallika, named Dinesh Ambalal Parmar, met them and brought them to Amraiwadi Police Station. The prosecution did not examine such CR.A/1457/2004 5/9 JUDGMENT important witness in this case. That the investigation made by PI Mr. Trivedi is very perfunctory. Therefore, it is submitted that when the very involvement of the appellant accused is not established by the prosecution, the appellant accused deserves acquittal. The appeal may be therefore, allowed. 5.1. Ld. APP Mr. Bhatt opposed this appeal and submitted that the prosecutrix was minor at the time when she was kidnapped and raped. She was aged about 14 years and 6 months. It is true that though prosecutrix Mallika did not support the case of prosecution and turned hostile, during the cross-examination of Ld. APP she admitted that in her statement before police, she has stated that the accused raped her. The factum of sexual intercourse is duly corroborated by medical evidence and the FSL evidence in form of serological report. Therefore, it is submitted that the appeal may be dismissed. 6. We have considered the record and proceedings of the case in context with the submissions made before us on behalf of both the sides. 7. Mallika Rameshbhai is examined at exh. 7. She stated that CR.A/1457/2004 6/9 JUDGMENT her date of birth is 19/7/1981. She stated that she was knowing the accused and they had love affairs. However, she denied the suggestion that she was kidnapped by accused and that accused had raped her. She was declared as hostile witness. In her cross-examination on behalf of the Ld. APP, she stated that she had left the house for the purpose of purchasing snacks for her mother at about 8.30 a m in the morning. Again she denied the suggestion that the accused had raped her. However, she stated that in her statement before the police, she had stated that accused had raped her. 7.1. Rameshbhai Makwana, the first informant and father of Mallika, is examined at exh. 9. He stated that on the day of incident on 18/1/2003 he had gone to Sidhdhpur and during evening when he came back to his home, his wife told him that Mallika had gone out at about 10.00 a.m., but she did not return. Thereafter, he made inquiry about Mallika and on 20/1/2003 he lodged the FIR before the police. 7.2. Dr. Shaikh, who is examined at exh. 12, stated that accused was brought before him on 22/1/2003 and that he had examined the accused. He issued the certificate which is at exh. 13. He stated that the accused told him that he was knowing one girl since last 2 years and they used to meet each other and before about one year he had sexual CR.A/1457/2004 7/9 JUDGMENT intercourse with said girl in her house and second time the sexual intercourse was committed near Gota Chokdi. However, considering the medical certificate exh. 13, it is only stated that history of alleged rape. However, it is significant to note that even in history before Dr. Shaikh, as per the testimony of Dr. Shaikh, the name of the prosecutrix is not stated by the accused. 7.3. Prosecutrix Mallika was examined by Dr. Vaghela. Prosecution examined Dr. Parul Vaghela at exh. 16. She issued certificate exh. 17. Considering the testimony of Dr. Vaghela exh. 16 and medical certificate exh. 17, Mallika stated before doctor that she was knowing the accused and they had love affairs. However, she clearly stated that they had no physical relationship whatsoever. 7.4. The Investigating Officer P I Mr. Trivedi is examined at exh. 24. He stated that he recorded the statement of Mallika. From the statement of Mallika it was revealed that the accused had taken her to Gandhinagar, Sidhdhpur, Gota, Vijapur, etc., but had not recorded the statements of witnesses of those places. 8. Appreciating the testimony of Mallikaben, it clearly CR.A/1457/2004 8/9 JUDGMENT transpires that she no-where involved the accused with the crime. It is true that after she was declared as hostile witness, in her testimony, on one breath she stated that in her statement before police, she had said that the accused had committed rape with her. However, in the same deposition, she denied the suggestion that the accused had committed rape with her. When such is the situation, no credibility can be attached to the testimony of Mallika. Even her testimony is not cogent and consistent involving the accused with the crime. She stated that she was brought to police station by her cousin brother Dinesh Ambalal along with the accused. The prosecution did not examine said witness Dinesh Ambalal Parmar. Even in her first version before the Medical Officer, she categorically stated that there was no physical relationship between herself and the accused. It is true that the date of birth of Mallika is 19/7/1981 and the incident occurred on 18/1/2003 and, therefore, at the time of the incident, she was aged about 14 years and 6 months, but the very involvement of the accused with the crime is not proved by the prosecution beyond any reasonable doubt. When the involvement of the accused with the crime is not proved beyond any reasonable doubt by adducing substantial evidence in this case by the prosecution, mere FSL report cannot be said to be a conclusive proof involving the accused with the crime. CR.A/1457/2004 9/9 JUDGMENT 9. In the result, the appeal deserves to be allowed. 10. For the foregoing reasons, the appeal is allowed. The conviction and sentence recorded by the Ld. Addl. Sessions Judge, Court No. 2, Ahmedabad, by judgment and order dated 21/7/2004 in Sessions Case No. 296 of 2003, is hereby set aside. The appellant is acquitted of the charges levelled against him. He shall be released forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.