CR.A/895/2002 1/46 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.895 of 2002 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? ============================================================== RANJITSINH FATEHSINH RAJ - Appellant Versus STATE OF GUJARAT - Respondent ============================================================== Appearance : MR NK MAJMUDAR for Appellant. MR KT DAVE, APP for Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 08/12/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment dated September 12, 2002 rendered by the learned CR.A/895/2002 2/46 JUDGMENT Additional Sessions Judge, Bharuch, Camp at Rajpipla, in Special Atrocity Case No.103 of 2000 by which the appellant is acquitted of offences punishable under Sections 3(1)(xi), 3 (1) (xii) and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“the Act” for short), but convicted for commission of offences punishable under Sections 354 & 376(2) of the Indian Penal Code (“IPC” for short) and sentenced to suffer R.I. for ten years and fine of Rs.1,000=00, in default S.I. for two months, for commission of offence punishable under Section 376(2) of the IPC. It may be stated that no separate sentence is imposed on the appellant for commission of offence punishable under Section 354 IPC. 2. In view of the 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: Ramanbhai Laxmanbhai Tadvi residing at Kevadia Colony was serving in the Office of Executive Engineer, CR.A/895/2002 3/46 JUDGMENT Sardar Sarovar Narmada Nigam, Bharuch. During the subsistence of his marriage with his wife, his wife gave birth to three children, i.e. two sons and one daughter. The name of the eldest son is Raju and younger to him is Hemant whereas the victim was the youngest child of Ramanbhai. Birth Certificate of the victim produced on record of the case indicates that the date of birth of the victim is December 17, 1984. The victim was prosecuting her studies in Government Higher Secondary School, Kevadia Colony. When she was prosecuting her studies in 8th, 9th & 10th Standards, the appellant used to impart private tuition to her over and above coaching her in the school. After the victim cleared 10th Standard examination, she was promoted to 11th Standard and was prosecuting studies in the said standard. One of the subjects in which the victim was to take examination was “Sanskrit”. As the victim had no book of “Sanskrit”, she had requested the appellant to supply one book of Sanskrit to her. The incident in question took place on July 13, 2000. On the day of incident, the victim put on the school uniform and went to school at about 12.30 noon. The first period of the class was conducted by one Mr.Hareshbhai whereas second period was to be conducted by Ms.Rohiniben, but she had not turned up in the school, CR.A/895/2002 4/46 JUDGMENT and, therefore, the victim was sitting in the class room. At that time, the appellant came near the door of the class and beckoned the victim to come out of the class showing the book of Sanskrit language to her. As the victim was knowing the appellant very well, she came out of the class and followed the appellant. The appellant took the victim to Room No.19, which is situated on the first floor of the building of the school. After the victim entered Room No.19, the appellant closed the doors from inside and embraced the victim with his both the hands. Thereupon, the victim protested and asked the appellant to release her from his embrace. However, the appellant told the victim that she was belonging to a lower caste (Bhildi, which is one of the Scheduled Tribes in Gujarat) and he was determined to ravish her. So saying, the victim was made to lie down on the ground. The appellant threatened the victim that if anyone was informed about his act, he would fail her and kill her father. After administering threats, the appellant untied string of trousers put on by the victim and also removed her nicker. Thereafter, the appellant removed his clothes and subjected the victim to rape against her wish. After commission of rape was over, the appellant put on his clothes. When the appellant was trying to come CR.A/895/2002 5/46 JUDGMENT out of the room and the victim was tying string of her trousers, all of a sudden, Mr.Rajnikant Ravjibhai Patel, who was Principal of the School, arrived in the room accompanied by one Mr.Ashokbhai Lallubhai Tadvi and Mr.Ranjeetbhai Balubhai. The Principal of the school started interrogating the appellant and during that time, the victim left the place without being noticed. The victim went to her house, but did not narrate the incident to her parents as she was threatened that disclosure of the incident would result into her failure in 11th standard and killing of her father. As the Principal had seen the appellant with a girl, who was found tying her trousers in Room No.19 of the school, the Principal addressed a letter dated July 18, 2000 to the appellant and called upon him to offer explanation within one day as to how he was found talking with the girl in Room No.19, which was totally vacant. Though the memo issued to the appellant was received by him, he did not offer any explanation. Therefore, reminder dated July 21, 2000 was served upon the appellant calling upon him to give his explanation as demanded in letter dated July 18, 2000 within one day from the date of receipt of the reminder. The reminder was also duly received, but no explanation worth the name was offered by him. Therefore, CR.A/895/2002 6/46 JUDGMENT another reminder dated July 22, 2000 was addressed by the Principal to the appellant calling upon him to give explanation within a day. The record does not show that any explanation was offered by the appellant pursuant to abovereferredto communications. As the Principal of the school was trying to know as to why the appellant was found all alone in the company of a girl, who was attempting to tie her trousers, the appellant threatened the Principal with dire consequences as a result of which, the Principal lodged complaint against the appellant on July 22, 2000. The complaint lodged by the Principal of the school was registered by Mr.R.B.Baria, who was Police Sub Inspector of Kevadia Police Station. During the course of investigation of the said complaint, it transpired that the girl with whom the appellant was found in Room No.19 by the Principal was the victim. The Investigating Officer, therefore, went to the house of the victim and recorded her statement. In her statement, the victim claimed that she was not knowing the girl, who was found talking with the appellant and that she had not met the appellant on July 13, 2000 in one of the classrooms of the school. The victim claimed that the story that the appellant was found with her in one of the rooms of the school was false, and mentioned that the CR.A/895/2002 7/46 JUDGMENT appellant, who had imparted knowledge and guidance to her, was an ideal man and her relations with the appellant were that of pupil and teacher. She also mentioned that neither she was molested nor subjected to rape by the appellant on July 13, 2000. It may be mentioned that interrogation of the victim took place in presence of her parents and, therefore, the parents of the victim suspected that something wrong had happened to their daughter. Therefore, they took the victim into confidence and assured her of confidentiality. Thereupon, the victim mentioned before her parents that on the pretext of giving Sanskrit book, the appellant had lured her to a lonely room where she was subjected to rape against her wish. The parents of the victim, therefore, took the victim to Kevadia Police Station. At the Police Station, the victim lodged her complaint against the appellant indicating as to how she was subjected to rape by the appellant. On the basis of the complaint lodged by the victim, offences were registered against the appellant by Mr.R.B.Baria, who was then Police Sub Inspector of Kevadia Police Station. The victim was referred to hospital for medical examination where she was examined by Dr.Radhikaben Narayanrao. The Investigating Officer visited the place of incident and CR.A/895/2002 8/46 JUDGMENT he found stains of semen on one of the tiles of the room. In order to carry out scientific investigation, services of an expert of Forensic Science Laboratory, i.e. Mr.Sidhdharth Indravadan Desai, were requisitioned. Mr.Desai visited the place of incident and found stains of semen on the tile concerned. The tile was removed for analysis and a detailed panchnama was drawn in presence of panch-witnesses. The clothes put on by the victim on the date of incident were seized under a panchnama and it was found that trousers put on by her were found to be stained with semen. During the course of investigation of the complaint of the victim, the appellant was arrested. Samples of his saliva, semen, etc. were obtained. Necessary investigation into the case was made by Dy.S.P. Mr. Punambhai Chhanabhai Baranda. Incriminating articles seized during the course of investigation were sent to F.S.L. for analysis. The report of the analysis indicated that same group of semen as that of the appellant was found on trousers put on by the victim on the date of incident. On completion of investigation, the appellant was chargesheeted in the Court of learned Judicial Magistrate First Class, Rajpipla, for commission of offences punishable under Sections 376(2), 354 and 506(2) of the IPC as well as Sections 3(1)(xi) & (xii) and CR.A/895/2002 9/46 JUDGMENT Section 3(2)(v) of the Act. As the offences punishable under the provisions of Act and Section 376 IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Bharuch, for trial where it was numbered as Special Atrocity Case No.103 of 2000. 4. The learned Additional Sessions Judge, Bharuch, camp at Rajpipla, to whom the case was made over for trial, framed necessary charge against the appellant at Exh.15. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) victim as P.W.-1 at Exh.18; (2) Incharge Principal of Government Higher Secondary School, Kevadia Colony, Mr.Rajnikant Ravjibhai Patel as P.W.-2 at Exh.20; (3) Rajeshkumar Somabhai as P.W.-3 at Exh.31; (4) Bhagwandas Mohanbhai as P.W.-4 at Exh.32; (5) Hemantkumar Ramanbhai as P.W.-5 at Exh.33; (6) Rajendrakumar Ramanlal as P.W.-6 at Exh.34; (7) father of the victim, i.e. Ramanbhai Laxmanbhai as P.W.-7 at Exh.36; (8) Ranjeetbhai Babubhai as P.W.-8 at Exh.37; (9) Ashokbhai Lallubhai as P.W.-9 at Exh.38; (10) Kantibhai Guljibhai as P.W.-10 at Exh.41; (11) panch Ramubhai Kantibhai as P.W.-11 at Exh.45; (12) panch Bhagwanbhai Chhitubhai as P.W.-12 at Exh.47; (13) panch CR.A/895/2002 10/46 JUDGMENT Shantilal Mavjibhai as P.W.-13 at Exh.52; (14) panch Pyarubhai Gordhanbhai as P.W.-14 at Exh.53; (15) Dr.Radhikaben Narayanrao, who had examined the victim, as P.W.-15 at Exh.54; (16) Scientific Assistant Mr. Dharmendra Nathubhai Patel as P.W.-16 at Exh.59; (17) Scientific Officer Smt.Shobhnaben J. Nanawala as P.W.-17 at Exh.61; (18) Scientific Officer Mr.Bhautik Nandshanker Pathak as P.W.-18 at Exh.67; (19) Scientific Officer Mr.Deepakkumar Bhagubhai Patel as P.W.-19 at Exh.71; (20) Expert from FSL Mr.Sidhdharth Indravadan Desai as P.W.-20 at Exh.73; (21) PSI Mr.Rumalsinh Baljibhai Baria as P.W.-21 at Exh.81; (22) Dy.S.P. Mr.Punambhai Chhanabhai Baranda as P.W.-22 at Exh.86; and, (23) Dy.S.P. Mr.Harish Ranchhodlal Muliyana as P.W.- 23 at Exh.98, to prove its case against the appellant. The prosecution also produced documentary evidence such as; complaint of victim at Exh.19; document indicating names and addresses of staff of the school at Exh.21; extract of necessary Register of Government School as to who were on duty between 12.30 noon and 5.30 P.M. on July 13, 2000 at Exh.22; relevant extract from the register indicating as to who were on duty on July 13, 2000 between 7.15 A.M. and 12.15 noon at Exh.23; list containing names of Class IV employees, i.e. peons, CR.A/895/2002 11/46 JUDGMENT employed in Government Higher Secondary School, Kevadia Colony, at Exh.24; extract from monthly presence Register maintained by the school at Exh.25; letter dated July 18, 2000 addressed by the Principal to the appellant calling upon him to offer explanation as to under which circumstances he was found all alone in a room with a girl at Exh.26; reminder dated July 21, 2000 sent to the appellant as the appellant had failed to offer his explanation at Exh.27; another reminder dated July 22, 2000 issued to the appellant calling upon to offer his explanation as demanded by letter dated July 18, 2000 at Exh.28; application dated July 22, 2000 submitted by Principal Mr.Rajnikant Patel to PSI of Kevadia Police Station stating, inter alia, that he was being threatened on telephone by the appellant at Exh.29; complaint of Principal Mr.Ranjikant Patel against the appellant for commission of offence punishable under Section 506(2) IPC at Exh.30; panchnama of place of incident at Exh.42; panchnama of person of prosecutrix at Exh.44; arrest panchnama of the appellant at Exh.51; certificate issued by Dr. Radhikaben Narayanrao after examining the victim at Exh.56; report of the analysis made by Scientific Officer Smt.Shobhnaben at Exh.62; report of serologist at Exh.64; report containing analysis of semen by Scientific CR.A/895/2002 12/46 JUDGMENT Officer Mr.Bhautik Pathak at Exh.68; reports of Serologist at Exhs.69 and 70, statement of the victim, which was recorded by PSI Mr.Baria pursuant to complaint lodged by Principal Mr.Rajnikant Patel against the appellant for commission of offence punishable under Section 506(2) IPC at Exh.83; panchnama of Room No.19 in which the appellant was seen with a girl student at Exh.84; birth certificate of the prosecutrix indicating that her birth date is December 17, 1984 at Exh.96; etc. in support of its case against the appellant. 5. After recording of evidence of the prosecution witnesses was over, the learned Judge of the trial Court explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code of Criminal Procedure, 1973. In his further statement, the appellant claimed that illegalities were being committed by Mr.Rajnikant Patel, who Incharge Principal of the Government Higher Secondary School, Kevadia Colony, and as he had opposed the same, a false case of rape was foisted upon him at the instance of Rajnikant Patel, but he was innocent. However, the appellant did not adduce any evidence in his defence. CR.A/895/2002 13/46 JUDGMENT 6. On appreciation of evidence led by the prosecution, the learned Judge held that though it was alleged by the prosecution that the appellant had committed offences punishable under Sections 3(1)(xi), 3(1)(xii) and Section 3(2)(v) of the Act, the investigation into those allegations was not made by the DSP as required by the provisions of the said Act and, therefore, the appellant was entitled to be acquitted from the charge of commission of those offences. The learned Judge considered examination-in-chief of the victim as well as her cross-examination and came to the conclusion that her testimony was quite clear, categorical as well as implicitly reliable which, in turn, established commission of offences punishable under Sections 376 (2) and 354 IPC by the appellant. On consideration of evidence tendered by Principal of the School Mr.Rajnikant Patel, the learned Judge held that it was proved that the appellant was found in the company of the victim in Room No.19 of the school and the testimony of the victim was corroborated by the evidence of the Principal. According to the learned Judge, the find of same group of semen as that of the appellant on trousers worn by the prosecutrix also lent corroboration CR.A/895/2002 14/46 JUDGMENT to her claim that she was subjected to forcible rape by the appellant. The learned Judge rejected the contention raised on behalf of the defence that the investigation was not impartial and held that no special interest in the investigation was taken by Dy.S.P. Mr.Baranda, who had looked into the complaint of the prosecutrix at the behest of PSI Mr.Baria. The learned Judge noticed that the defence which was set out in further statement by the appellant could not be probabilized. The learned Judge noticed that it could not be proved by the prosecution satisfactorily that the appellant had committed offence punishable under Section 506(2) IPC. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Sections 376(2) and 354 IPC and imposed sentences referred to hereinabove by judgment dated September 12, 2002 giving rise to instant appeal. 7. Mr.Nirav K.Majmudar, learned counsel of the appellant, contended that when the trial Court has disbelieved the case of the prosecution that the appellant had threatened the victim before or after committing rape, her case that she was subjected to rape by the appellant also should have been disbelieved by the trial Court. According to the learned Counsel of the CR.A/895/2002 15/46 JUDGMENT appellant, the find of semen in large quantity on one of the tiles fitted in Room No.19 as well as trousers of the victim suggest that no rape whatsoever was committed on the victim by the appellant and, therefore, the impugned judgment should be set aside. The learned counsel of the appellant drew the attention of the Court to paragraphs 19, 20 and 21 of the testimony of the prosecutrix and contended that as the prosecutrix has stated that she had talk with the appellant, but has not stated the appellant had committed rape on her, the judgment impugned in the appeal should be reversed. The learned counsel of the appellant emphasized that no external injuries were sustained by the prosecutrix nor injuries were sustained by the appellant during the course of alleged rape by the appellant on the victim and, therefore, the story of rape narrated by the victim should have been disbelieved. The learned counsel argued that the trousers worn by the victim were handed over by her to washer-man for washing and, therefore, the find of semen on her trousers becomes doubtful. What was maintained before the Court was that the statement, which was given by the prosecutrix during the course of investigation of complaint lodged by the Principal of the school against the appellant completely exonerates the appellant and relying upon the same, the CR.A/895/2002 16/46 JUDGMENT appellant should have been acquitted. According to the learned counsel of the appellant, version of the incident as given by the prosecutrix is not reliable at all and, therefore, the same should not have been acted upon more particularly when there was a considerable delay of about 13 days in lodging the complaint by the prosecutrix against the appellant, which is not satisfactorily explained at all. According to the learned counsel, a false case of rape was foisted upon the appellant at the instance of Incharge Principal Mr.Rajnikant Patel and/or to obtain compensation of rupees one lakh from the Government and, therefore, the conviction of the appellant under Section 376 IPC should be set aside. In the alternative, it was argued that at the best what was established by the prosecution was that an attempt to commit rape on the victim was made by the appellant and, therefore, the conviction of the appellant should be altered to one punishable under Section 376 read with Section 511 IPC and half the sentence prescribed for commission of offence punishable under Section 376(2) IPC should be imposed on the appellant for commission of the said offence. The learned counsel of the appellant asserted that the learned Judge of the trial Court has failed to appreciate the evidence on record in its true CR.A/895/2002 17/46 JUDGMENT perspective and, therefore, the appeal should be allowed. In support of his submissions, the learned counsel of the appellant relied upon decisions in (1) State of Maharashtra vs. Rajendra Jawanmal Gandhi & Ors., A.I.R. 1997 SC 3986, and (2) Madan Lal vs. State of Jammu & Kashmir, A.I.R. 1998 SC 386. 8. Mr.K.T.Dave, learned Additional Public Prosecutor for the State, contended that the testimony of the prosecutrix is free from any blemish and as her testimony is quite clear, categorical and implicitly reliable, the learned Judge of the trial Court, who had advantage of observing demeanour of the witnesses, did not commit any error in placing reliance on her testimony for convicting the appellant under Sections 376(2) and 354 IPC. The learned counsel of the State Government brought to the notice of this Court the principles of appreciation of evidence of a prosecutrix laid down by the Supreme Court in catena of reported decisions and contended that absence of injuries on the prosecutrix or absence of dead or mobile spermatozoa either in vagina or in the cervix should not be considered by the Court as fatal to the prosecution. The learned counsel of the State Government asserted that it is true that during the CR.A/895/2002 18/46 JUDGMENT course of investigation of the complaint lodged by Principal Mr.Rajnikant, statement of the prosecutrix was recorded which completely exonerated the appellant, but thereafter the victim was taken into confidence by her parents to whom she had narrated the whole incident of rape on her by the appellant after which, the complaint was lodged and as the statement exonerating the appellant was made by the victim while under fear of threats, the trial Court has rightly disbelieved the same. It was argued that delay in lodging the complaint is satisfactorily explained and the same should not be treated as having any vitiating effect on the prosecution case. The learned counsel also emphasized that since lodging of complaint of rape brings in question of morality, and chastity of victim, initial hesitation and delay is understandable as a result of which so-called delay should not be regarded as affecting version of the prosecutrix that she was subjected to rape by the appellant. What was emphasized was that the evidence of rape victim, which stands at a higher pedestal than that of an injured should be acted upon without corroboration and as the evidence of the victim is without any blemish, the same should be acted upon by this Court while determining the guilt of the appellant. In the CR.A/895/2002 19/46 JUDGMENT alternative, it was argued that find of semen stains on the trousers of the victim should be treated as corroborative piece of evidence to fasten the liability on the appellant under Sections 376(2) IPC. After referring to the evidence of Principal Mr.Rajnikant Patel, it was argued on behalf of the State that the claim of the victim that she was lured by the appellant to a secluded room, gets corroboration from his evidence and, therefore, the judgment impugned in the appeal should be confirmed. The learned counsel of the State Government asserted that cogent and convincing reasons have been assigned by the learned Judge of the trial Court for convicting the appellant under Sections 376(2) and 354 IPC and as the learned counsel of the appellant has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed. 9. This Court has heard Mr.Nirav K.Majmudar, learned counsel of the appellant, and Mr.K.T.Dave, learned Additional Public Prosecutor for the State, at length and in great detail. This Court has also undertaken a complete