CR.A/354/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 354 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= RAMCHANDRA SONU BHALERAO - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR PK SHUKLA for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/04/2008 ORAL JUDGMENT 1. The appellant is the original accused. By impugned judgement and order dated 27.1.2006 passed by learned Presiding Officer, Fast Track CR.A/354/2006 2/11 JUDGMENT Court, Surat, in Sessions Case No.160/2004, he was convicted for offences punishable under Sections 376 and 504(2) of the Indian Penal Code. For offence punishable under Section 376 of the Indian Penal Code, he was sentenced to simple imprisonment for seven years and fine of RS.8,000/- and for offence punishable under Section 504(2) of the Indian Penal Code, he was sentenced to simple imprisonment for one year and fine of Rs. 500/-. Both the substantive sentences were made concurrent. 2. As per the charge exh.5, it was alleged against the accused that about a month and quarter before 4.7.2004 at about 2 O' Clock in the afternoon, he had forcible sexual intercourse with 'S', daughter of the complainant who was aged about 12 years on the date of incident. At that time, he had also threatened 'S' that he would pour kerosene on her and set her ablaze if she did not succumb to his demand. He was thus charged with offences punishable under Sections 376 and 504(2) of the Indian Penal Code. 3. Complainant Shobhaben Rajubhai More-PW1, mother of the victim girl was examined at exh.8. In her deposition, she stated that she had four daughters and three sons. Her daughter 'S' on the date of incident was 12 years old. Since she was seven years old, she used to do household work in the house of the accused who lived on CR.A/354/2006 3/11 JUDGMENT the ground floor in the same building in which the complainant was staying with her family. Wife of the accused used to take 'S' with her at 7 in the morning and drop her back at 9 at night. About a month before the complaint was lodged, 'S' had told the complainant that whenever wife of the accused was out, the accused used to harass her and had raped her twice. He had also threatened 'S' that he would pour kerosene on her and set her ablaze. He had also told her that her parents were poor and that they therefore, would not be able to do anything about it. The parents of 'S' had spoken to the accused about the incident. However, friend of the wife of the accused had quarreled with them after which they had lodged the complaint. 3.1 In the cross examination, she admitted that both the legs of the accused were amputated in a train accident. Since wife of the accused could not look after the house as well as her husband, she had engaged 'S' for household work. She however, stated that the accused could without anyone's help sit on a chair or lie down on a bed. She admitted that even after her daughter complained to her about the alleged incident, wife of the accused had taken 'S' with her. She however, explained that she permitted 'S' to be taken since wife of the accused had stated that grandson of the accused was not CR.A/354/2006 4/11 JUDGMENT eating without her. 4. Dr. Shruti Jitendrabhai Manchanda-PW2 was examined at exh. 10. She was an Assistant Professor at the New Civil Hospital at the relevant time. In her deposition, she stated that 'S' had given history of being raped by the accused twice while she was doing household work at his house. Both the times, wife of the accused was not present. Third time when the accused tried to rape her, she ran away. Doctor found that hymen of the victim girl was ruptured permitting passage of one finger. From cervix and vaginal swab, presence of semen was not found. She however, opined that upon 'S', sexual intercourse had been committed. 4.1 Dr. Shruti Jitendrabhai Manchanda-PW2 had produced the certificate at exh.11 in which it was recorded that 'S' had not attended mensuration. In her opinion, there was sign of recent sexual intercourse which was consistent with the history given by the victim girl. 5. Victim girl 'S' PW3 was examined at exh. 13. After verifying that witness was able to comprehend the questions put to her and give proper answers thereto, learned Presiding Officer permitted her examination. 5.1 In her deposition, she stated that she CR.A/354/2006 5/11 JUDGMENT was engaged for household work in the house of the accused. The accused had raped her twice. When he tried to repeat it third time, she ran away and complained to her mother. In the house of the accused, there used to be a kerosene tin. Since the accused was in the habit of smoking bidies, he also used to carry a matchbox. He used to threaten her that if she did not remove her clothes, he would pour kerosene on her and set her ablaze, upon which she removed her clothes. Thereafter, the accused had removed his own clothes and committed rape on her. A week thereafter, he had repeated this act. 5.2 In the cross examination, she stated that she used to fill water for the accused in the toilet as well as for his bath. Occasionally she would cook for the family also. Wife of the accused was involved in bootlegging which business she operated from home. People from nearby areas would come to get liquor. She however, denied that wife of the accused would be at home all through out the day. The wife would sometimes leave the house. Whenever police used to raid the place, accused would be warned by his men. She denied that in her police statement, she had not mentioned about the threats given by the accused to set herself ablaze. 6. Rajubhai Govindbhai More-PW-4, father of the CR.A/354/2006 6/11 JUDGMENT victim girl was examined at ex. 14. He also stated that his daughter 'S' had complained to him about the rape committed by the accused on her two or three times. When he had approached the accused about it one Vijendra had attacked him. 7. Dr.Vinesh Babulal Shah-PW8 was examined at exh. 23. He was working as an Assistant Professor, Forensic Medicine, New Civil Hospital at the relevant time. The accused was referred to him to examine his ability to perform sexual intercourse. The accused had given history of night discharge once a month since last five years. He examined the accused physically and opined that there were no signs to indicate that he would not be in a position to perform sexual intercourse. Dr.Vinesh Babulal Shah-PW8 had given certificate to this effect which was produced at exh.24. It may be noted that the defence did not carry cross examination of this witness. 8. Babubhai Lilabhai Desai-PW-10(exh.28) was the Investigating Officer who had carried out the investigation. Through his cross examination, defence could extract certain omissions and contradictions in the prosecution version, particularly, of the victim girl being threatened with pouring of kerosene and setting her ablaze. CR.A/354/2006 7/11 JUDGMENT 9. Dr. Omkar Sitaram Chaudhary-PW11(exh.35) was the Medical Officer at the New Civil Hospital at the relevant time. He was examined to prove the age of the girl. He had for the said purpose referred the patient to the Radiologist department where X-rays of different parts of the body of the girl were taken. On the basis of such examination, it was opined that girl was aged 14 years of age and under any circumstances, she was below 16 years of age. He had produced such certificate at exh. 40. 10.From the above evidence on record, the prosecution sought to prove the charges against the accused. 11.Having heard learned advocates appearing for the parties and having perused the evidence on record, one may recall that substantially the case hinges on the eyewitness account of the victim girl herself. One may address the question of age of the victim girl at a slightly later stage. However, suffice to note at this stage that admittedly she was young girl of tender age. She had not yet attended mensuration. Her parents stated that she was aged about 12 years on the date of incident. Medical opinion was that she was about 14 years of age. CR.A/354/2006 8/11 JUDGMENT 12.In her deposition 'S' clearly stated that the accused had committed intercourse with her forcibly on two occasions. The fact that 'S' was working as a household helper in the house of the accused is not even denied. The accused had lost both his legs in a railway accident. His wife therefore, unable to look after the accused as well as household work, had employed 'S' as a helper in the house. She thus used to spend entire day at the house of the accused. Though it was put to 'S' that wife of the accused never left the house, this suggestion was denied. Even otherwise, it is expected that wife of the accused would have to leave the house for sometime during the day for various purposes. This would leave 'S' and the accused alone in the house. 13.In her deposition, 'S' has described at some length the manner in which the accused committed rape on her twice. There is nothing on record to disbelieve this clear and cogent eyewitness account of the victim girl herself. There is not even a suggestion put-forth by the defence that there was any previous quarrel or enmity between the accused and the family of the victim girl. Additionally, I also find that the victim girl 'S' comes across as a truthful witness. In her cross examination, she clearly stated that wife of the accused was involved in the business of bootlegging and customers would come to the CR.A/354/2006 9/11 JUDGMENT house of the accused to take liquor. She also stated that whenever police used to raid the place, accused's men would warn him. All these would show that the witness was a truthful witness. 14.Dr.Vinesh Babulal Shah-PW8 who had examined the accused found that he was capable of performing sexual intercourse. 15.It is true that there are certain contradictions and improvements in the statement of the witness including 'S' herself. Primarily, version of the accused threatening the victim girl with setting her ablaze by pouring kerosene from tin lying in the house had not come in the police statement. This by itself would not destroy the reliability of other statements made by 'S' or of entire prosecution case. 16.The accused who was aged about 45 years had committed act of sexual intercourse on a very young girl. How he overpowered her or how he broke her defence is not very important to find out. For a girl as young as in her early teens, even a forcible demand by a person of matured age of 45 years without there being any further physical assault or coercion, would be sufficient to make her to submit to the illicit demands of the aggressor. CR.A/354/2006 10/11 JUDGMENT 17.Coming to the question of age of the victim girl, Shobhaben Rajubhai More-PW1, mother of the victim girl had sated that she was aged about 12 years on the date of incident. In her certificate Dr. Shruti Jitendrabhai Manchanda- PW2 noted that the girl had not yet attended mensuration. Dr. Omkar Sitaram Chaudhary- PW11(exh.35) produced certificate exh.40 according to which the girl was aged 14 years and in any case was less than 16 years of age. All these would establish that girl was undoubtedly below 16 years of age when the incident took place. Here is a case where the accused aged about 45 years of age, taking advantage of being alone with the victim girl in his house had committed the act of sexual intercourse with her. Even if the victim girl had not resisted his advances, in my view, the same would not absolve the accused from the offence punishable under Section 376 of the Indian Penal Code. 18.With respect to the quantum of punishment under Section 376 of the Indian Penal Code, I find that learned Judge committed no error in awarding seven years of imprisonment for the said offence. This is the minimum sentence prescribed under the said Section. There are no special reasons why the sentence should be reduced below the said minimum. CR.A/354/2006 11/11 JUDGMENT 19.However, with respect to the charge of having threatened to set 'S' on fire after pouring kerosene on her, same appears to be a wholly doubtful story. This version was not put-forth before the police at the time of investigation. In the statement of the witness, thus there is material contradiction on this aspect. Conviction and sentence of the appellant under Section 504(2) of the Indian Penal Code is therefore, required to be set aside. 20.In the result, appeal is disposed of in following terms : 1) Conviction and sentence of the appellant under Section 376 of the Indian Penal Code is maintained. 2) Conviction and sentence of the appellant under Section 504(2) of the Indian Penal Code is set aside. Fine for the said offence having paid shall be refunded. 21.The appeal is disposed of accordingly. (Akil Kureshi,J.) (raghu)