CR.A/81320/2002 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 813 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ===================================================== RAJESHBHAI KARSANBHAI VASAVA & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR PRASHANT G DESAI for Appellant(s) : 1 - 3. Ms. H.B. Punani, A.P.P. for Respondent – State. ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 19/12/2008 ORAL JUDGMENT CR.A/81320/2002 2/8 JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants – convicts have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by learned Joint District Judge and Addl. Sessions Judge Fast Track Court), Bharuch on 30-8-2002 in Sessions Case No. 57 of 2001 convicting them for the offence punishable u/s 366, 376, 376 (2 (g) of the I.P. Code and sentencing them to undergo various imprisonments for the offence charged against them. 2. In brief the prosecution case was that on 23-10-2000 at about 9-00 p.m. when the victim went in vada on the back side of her house, the accused abducted her by tying her mouth and took her towards Kichwada village on Rajdoot motor-cycle and accused Amreshbhai and Kamleshbhai caught hold of her and accused Rajeshbhai committed rape on her. 3. On the basis of the first information report lodged by the victim, offence was registered and investigation was started. At the end of investigation charge sheet was laid against the accused for the offence punishable u/ss 363, 366, 375, 376 (2) (g) and 114 of the I.P. Code As the case was triable by Sessions Court, the case was committed to Sessions Court, Bharuch and it was registered as Sessions Cases No. 57 of 2001. Learned Addl. Sessions Judge, Bharuch framed charge Exh.3 CR.A/81320/2002 3/8 JUDGMENT for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried. Therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that false case is filed against them. 5. After hearing learned A.P.P. and learned advocate for the accused, the learned trial Judge convicted accused for the offence punishable u/ss 366, 376 (2) (g) of the I.P. Code and sentenced them to undergo various imprisonments. Being aggrieved by the said decision, the accused have preferred this appeal. 6. We have heard learned advocate Mr. Prasant G. Desai for the appellants and learned A.P.P. Ms. H.B. Punani for the State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 7. Learned advocate Mr. Desai for the appellants submitted that there was delay of three days in lodging the first information report and the delay has not been satisfactorily explained. It is also submitted that there is no medical evidence to indicate that the accused committed rape on the CR.A/81320/2002 4/8 JUDGMENT victim and there is no corroborating evidence except oral version of the victim. Therefore, the trial Judge committed error in convicting the accused and hence the impugned judgment is required to be set aside. 8. Learned A.P.P. Ms. Punani submitted that the victim has deposed about rape and it is not always necessary to have injury marks on private parts of the victim and simply because there is no medical evidence, it cannot be said that no rape was committed. Therefore, the learned trial Judge has rightly believed the deposition of the victim and therefore no interference is warranted in the impugned judgment. 9. The prosecution has examined victim as P.W.1 at Exh. 11. According to her evidence, the incident occurred at about 9-00 p.m. the accused abducted her when she went back side of her house and took to the place of incident and accused Kamleshbhai and accused Amreshbhai caught hold of her and accused Rajeshbhai committed rape. The evidence also indicates that after the incident she became unconscious and on the next day she went home but did not inform her father but informed her mother and thereafter the first information report was lodged. The evidence of the victim also indicates that as her mouth was tied, she could not raise alarm. It also appears from the evidence that other accused facilitated accused Rajeshbhai by holding CR.A/81320/2002 5/8 JUDGMENT the victim in committing the offence. It would be difficult to believe that a person could commit rape in presence of other persons catching hold of the victim. It is also significant that the victim has , in First Information Report Exh. 35 alleged that accused Amreshbhai and accused Kamleshbhai also committed rape but this fact is not stated by her in the court. Therefore, there is material discrepancy in prosecution evidence with regard to involvement of these accused and possibility of their false implication in the offence cannot be ruled out. As regards accused Rajeshbhai is concerned, it is true that there is no external injury on private parts to indicate that he committed rape on the victim but it is also settled principle that a rape victim would not falsely implicate any one in such a serous offence unless there is some axe to grind against him. There is no evidence on record to indicate that there were any disputes between the victim and the accused or that the victim had reason to falsely implicate accused Rajeshbhai. It is also not necessary that there has to be marks of injury on private parts of a rape victim. Therefore, the trial court was justified in relying upon her evidence to convict accused Rajeshbhai but error was committed in convicting the other accused as there is no cogent and reliable evidence connecting them with the offence. 10. As regards delay in lodging the First Information Report, it is duly explained as a victim CR.A/81320/2002 6/8 JUDGMENT would be shy of telling such incident to her father. Therefore, there is no unexplained delay in lodging the First Information Report. Hence, this submission cannot be accepted. 11. Now the question is as to which offence accused Rajeshbhai has committed. Section 376 (2) (g) of the I.P. Code provides for punishment for gang rape. Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Section of 376 (2) (g) of the I.P. Code. Therefore, now it is required to be ascertained as to whether accused Rajeshbhai could be convicted for gang rape. 12. As observed earlier, the prosecution evidence is not sufficient to indicate involvement of accused Amreshbhai and Kamleshbhai. Therefore, the case would not fall within the definition of gang rape and hence accused Rajeshbhai could not be convicted for the offence punishable u/s 376 (2) (g) of the I.P. Code but could be convicted for the offence punishable u/s 376 (1) of the I.P. Code. 13. As regards sentence, it appears that accused Rajeshbhai is in custody since his arrest and he has undergone sufficient sentence. Looking to the nature of offence and the manner in which the offence was committed, rigorous imprisonment for seven years would be adequate and sufficient for the offence of rape. CR.A/81320/2002 7/8 JUDGMENT 14. For the foregoing reasons, the present appeal is partly allowed and judgment and order of conviction qua accused Rajeshbhai Karsanbhai Vasava rendered on 30-8-2002 by the learned Joint District Judge and Addl. Sessions Judge, (Fast Track), Bharuch in Sessions Case No. 57 of 2001 convicting and sentencing him for the offence punishable u/ss 375 read with Section 376 (2) (g) of the I.P Code is set aside and accused – appellant Rajeshbhai Karsanbhai Vasava is convicted for the offence punishable u/s 376 (1) of the I. P. Code and is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/- in default thereof to undergo rigorous imprisonment for one month. 14.1 The judgment and order of conviction and sentence qua accused Amreshbhai Radvabhai Vasava and Kamleshbhai Kantibhai Vasava rendered on 30-8-2002 by the learned Joint District Judge and Addl. Sessions Judge, (Fast Track), Bharuch in Sessions Case No. 57 of 2001 is set aside and these accused – appellants are acquitted of the offence charged against them and their bail bonds stand cancelled. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta,J.) CR.A/81320/2002 8/8 JUDGMENT /JVSatwara/