CR.A/1402/2003 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1402 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE AND 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 ? ========================================= PREMSINH FULSINH SISODIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : MR PK SHUKLA for Appellant(s) : 1,MR NIRAV C THAKKAR 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 : 23/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/1402/2003 2/7 JUDGMENT 1. The appellant who was original accused in Special Case No.6 of 2003, preferred this appeal challenging the legality and validity of the judgment and order rendered by learned Additional Sessions Judge and Special Judge, Jamnagar ('learned trial Judge', for short) on dated 20.10.2003. The learned trial Judge recorded the conviction of the appellant – accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code ('IPC', for short) and awarded sentence of R.I for 3 years and fine of Rs.500/- and in default of payment of fine, S.I for 1 month for the offence punishable under Section 363 of the IPC and R.I for 5 years and fine of Rs.500/- and in default of payment of fine, S.I for one month for the offence punishable under Section 366 of the IPC and R.I for 8 years and fine of Rs.2500/- and in default of payment of fine, S.I for 3 months for the offence punishable under Section 376 of the IPC. All the sentences were ordered to run concurrently. However, the learned trial Judge has acquitted the appellant – accused of the offence punishable under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('Atrocities Act', for short). 2. The prosecution case in nutshell is that on dated 6.12.2002, at about 2 p.m. to 3 p.m., Manjulaben, daughter of Kalubhai, aged about 15 years, was sleeping in her hut situated in the area of Andhashram in the city of Jamnagar, at that time, the accused came to her hut and giving inducement to her that he would give her a biscuit, kidnapped her and took her to a house, which was under construction and raped her. It is the prosecution case that prosecutrix Manjulaben belonged to scheduled tribe. Manjuben lodged the first CR.A/1402/2003 3/7 JUDGMENT information report before B-Division Police Station, Jamnagar. Police commenced the investigation and during the course of investigation, statements of material witnesses were recorded. Prosecutrix Manjulaben and the accused were sent for medical examination. Required panchnamas were drawn in presence of the Panchas and after collection of the material evidence, chargesheet came to be filed in the Court of learned Judicial Magistrate First Class, Jamnagar. As the offence was exclusively triable by the Court of sessions, the learned Magistrate committed the case to the Court of sessions, Jamnagar, which was registered as Special Criminal Case No.6 of 2003. 3. The learned trial Judge framed charge at Exh.3 against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC and under Section 3(2) (5) of the Atrocities Act, to which the accused person did not plead guilty and claimed to be tried. 3.1 The prosecution adduced its oral and documentary evidence. After the completion of the oral evidence, the learned trial Judge recorded further statement of accused under Section 313 of the Cr.PC, to which the accused denied generally all the allegations levelled against him by the prosecution. After appreciating the evidence on record and after considering arguments advanced on behalf of both the sides, the learned trial Judge rendered the impugned judgment and order and he was pleased to convict the appellant - accused for the offences punishable under Sections 363. 366 and 376 of the IPC and imposed sentence as referred hereinabove. CR.A/1402/2003 4/7 JUDGMENT 4. We have heard the submissions advanced by learned advocate Mr.Shukla for the appellant and learned APP Mr.Bhatt for the State. 5. Learned advocate Mr.Shukla submitted that though in this case one of the offences registered by the police was under the Atrocities Act, and the investigation was to be carried out by the Police Officer not below the rank of Dy.S.P., but the same was carried out by P.I. Mr.Solanki. Therefore, the investigation was made by the Police officer not empowered to investigate. It is further submitted that the prosecution could not record the testimony of prosecutrix Manjulaben, as before she could be examined as witness in this case, she had died, and therefore, there is no evidence of prosecutrix herself in this case and the learned trial Judge therefore, erred in convicting the appellant – accused. It is further submitted that the testimonies of the witnesses examined by the prosecution suffer from material contradictions and improvements. No reliance can be given to such evidence. Therefore, it is submitted that the appeal be allowed and the conviction recorded by the learned trial Judge be set-aside. 6. Learned APP Mr.Bhatt submitted that in this case, the learned trial Judge acquitted the appellant – accused from the charge of the offence punishable under Section 3(2)(5) of the Atrocities Act. Therefore, the contention raised on behalf of the appellant that the investigation should have been made by a competent Police Officer not below the rank of Dy.S.P., is not required to be considered, as the remaining offences are under the Indian Penal Code. It is submitted that it is true that CR.A/1402/2003 5/7 JUDGMENT the prosecutrix could not be examined because she had expired, but, the prosecution has examined eye-witness to the incident and there is no reason not to accept said evidence. The case of the prosecution is supported by medical evidence. Therefore, it is submitted that the appeal be dismissed. 7. We have considered the records and proceedings of the trial Court in context of the submissions made on behalf of both the sides. 8. Considering the record of the case, it is true that prosecutrix Manjulaben could not be examined as witness by the prosecution as she had expired before she could be examined as a witness. However, considering the overall evidence on record, and the evidence regarding the date of birth of the prosecutrix, her date of birth is 11.7.1987 and the incident took place on dated 6.12.2002, and therefore, at the time of the incident, she was below the age of 16 years. 8.1 Considering the medical evidence on record, Dr.Nileshkumar Kalola is examined at Exh.16, who had examined the accused, and considering his evidence, it transpires that there were marks of injuries on neck, face and on right hand elbow of the accused. Considering those injuries, it clearly transpires that at the time of incident, victim Manjulaben had resisted the forcible intercourse. It further transpires that the accused was already a married man. Considering the entire record, it nowhere transpires that it was a case of any love-affair. 8.2 The prosecution examined witnesses Prabhubhai Karubhai at Exh.21, Ramilaben Kanjibhai at Exh.22, CR.A/1402/2003 6/7 JUDGMENT Lakhmanbhai Jivabhai at Exh.23, Ravjibhai Patel at Exh.24 and PSI Mr.Solanki at Exh.45. It transpires that those witnesses were present near the house, which was under construction and according to their evidence, they heard the noise of shouting and prosecutrix Manjulaben and the accused came out from the house and before these witnesses, Manjulaben narrated the story of rape, involving the appellant – accused. According to their evidence, they caught the accused and at that time police mobile van, which was on patrolling duty was intercepted and police head constable Ravjibhai Badjibhai Patel took the accused and the prosecutrix Manjulaben to the police station in said mobile van. 8.3 Under such circumstances, though because of the sad demise of prosecutrix Manjulaben before she could be examined as witness in this case, considering the evidence adduced by the above referred witnesses, the prosecution successfully proved its case beyond any reasonable doubt against the accused. 9. Prosecution examined Dr.Gondaliya at Exh.8. He examined prosecutrix Manjulaben and issued the certificate, Exh.9. Considering the medical evidence, her hymen was freshly torn. According to the medical opinion, there was possibility of recent forceful intercourse, marks of injuries were also found on the body of the prosecutrix. 9.1 Considering the overall evidence on record, together with medical evidence, we are of the considered opinion that the learned trial Judge did not err in recording the conviction of the appellant – accused for the offences punishable under Sections 363, 366 and 376 of the IPC. On CR.A/1402/2003 7/7 JUDGMENT behalf of the appellant, a contention was raised that the investigation was made by a Police Officer not empowered to investigate an offence under the Atrocities Act. However, considering the impugned judgment and order rendered by the learned trial Judge, it clearly transpires that so far as the charge of commission of offence under the Atrocities Act is concerned, the appellant – accused came to be acquitted and he was convicted for the above-referred offences under the IPC. 10. Under such circumstances, we do not find any merits in the contention raised on behalf of the appellant regarding incompetency of the Police Officer to investigate the crime. 11. For the foregoing reasons, the appeal deserves to be dismissed. The appeal stands dismissed. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)