CR.A/805/1993 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 805 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= STATE OF GUJARAT Versus GAUTAM SAROJ ROY ========================================================= Appearance : MR KC SHAH APP for Appellant MR KG PANDIT for Opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 01/03/2007 CR.A/805/1993 2/31 JUDGMENT ORAL JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 This Criminal Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure against the judgment and order delivered by Assistant Sessions Judge, Ahmedabad (Rural), Mirzapur, on 30th of November, 1992, delivered in Sessions Case No. 68 of 1992 whereby accused respondent therein came to be acquitted by learned Assistant Sessions Judge for the offences punishable under Sections 363 and 376 of the Indian Penal Code. 2 The basic prosecution case as has been disclosed in the complaint Exhibit-32 as under : Complaint came to be filed on 5.2.1992 before Sabarmati Police Station at 15.00 hours and the date of incident is the same day at about 13.30 hours. Complainant J. Handri Kribhakaran declared that he was staying in No. 50 Konak Society, Sabarmati, Ahmedabad and was a Priest and was managing a house of prayer near his residence. He had two children, elder being Priskila, a daugher, aged about four years at the time of incident, and younger to her a boy, aged about 3 years . He was staying as tenant in the said premises and in the adjoining house, the accused was staying along with his family. At about 13.00 hours, after taking lunch, complainant – Kribhakaran was sitting with CR.A/805/1993 3/31 JUDGMENT his wife Beularani and along with one member of his church, named as Agustin, his daughter Priskila came running and crying in the house. She was frightened and when asked by the complainant, she by gesture showed her underwear. Complainant took out underwear of Priskila and found that her private part was bleeding. According to complainant, her daughter stated that the accused called her in varandha of his house, made her sit in his lap, and after taking out her underwear, caused injuries on her private part, which was bleeding. According to complainant, thereafter he went to the house of the accused. Priskila indicated and identified the accused who had committed the above said act. 3 On this complaint being filed before PW-11 Amos Rupsinh Kharadi, he recorded the same and Priskila as well as the accused were sent to Civil Hospital at about 9.35 at night and were examined by Dr. Belaben Tribhuvan Patel, PW-7. However, Priskila being of tender age, was not cooperating in examination, it was recommended by Dr. Belaben to have her examined through anaesthesia and, therefore, Dr. Haresh Umedchand Doshi examined Priskila with the assistance of Anaesthetist on 6.2.1992 at about 4.00 p.m. and offered his opinion. Investigating Officer Kharadi after registering the offence, took the charge of the investigation, recorded the statements of the witnesses, draw panchnamas and seized the clothes of Priskila and the accused and forwarded the same to Forensic Science Laboratory. Ultimately, a CR.A/805/1993 4/31 JUDGMENT charge sheet for the above said offences came to be filed in the Court of learned Magistrate and the case was committed to the Court of Sessions. Charge was framed against the accused vide Exhibit-2 on 18.6.1992 and vide Exh. 3 the accused pleaded not guilty and, hence, the prosecution tendered the evidence. 4 Prosecution examined in all 11 witnesses. PW-1 Kamlaben Muthuswami – Exh.6 is examined as an important witness. She stated that, on the day of incident, she was called by complainant to his house at about 1.30 p.m. After reaching the house of the complainant, she took out the underwear of Priskila and found that her private part was bleeding. Underwear and frock worn by Priskila were bloodstained. She identified those clothes before the court. Thereafter she inquired from Priskila about the incident and she conveyed to her that Gautam uncle (accused) called her and made her to sit in his lap. According to witness, Priskila further stated that the accused thereafter took out her underwear and caused injury to her private part. According to her, Priskila was expressing and describing this incident to her and her parents. Except that, she did not know anything. PW-2 Augustin Anthony, was the person, according to the complainant, was present in his house when Priskila came running and crying at the time of incident. He did not support the prosecution case and stated that at the relevant time though he CR.A/805/1993 5/31 JUDGMENT was sitting in the house of the complainant and was discussing about obtaining a house on rent for him, Priskila came running and crying and went in the house. The witness stated that he did not know what had happened thereafter. He was declared hostile by the prosecution. PW-3 Subhas Samson Johni is, panch of Exhibit-9 panchnama, examined at Exhibit-8. Exhibit-9 panchnama is a panchnama whereby the clothes put on by Priskila at the time of committing of the offence and the clothes put on by the accused were seized by the police. Underwear and frock of Priskila as well as pant and underwear of the accused were seized through this panchnama drawn on 5.2.1992 at 19.00 hours. However, PW-3 Subhas Samson Johni did not support the prosecution case and stated that his signature was obtained by the police in police station and he had not been to the house of the complainant. He was cross examined by the prosecution. Panchnama – Exhibit – 9 is placed on record. PW-4 Phillip Solomon, who is examined at Exhibit - 10, is also a panch of panchnama at Exhibit-11. Exhibit – 11 panchnama was drawn on 5.2.1992 at 17.30 hours and this is in respect of the place of offence i.e. Bungalow No.8 of Konak Society and the location is indicated in the said panchnama. However, PW-4 Phillip Solomon did not support the prosecution case and stated that he CR.A/805/1993 6/31 JUDGMENT had not been to the place of offence and his signature was obtained by the police in one blank paper. He has been cross-examined by the prosecution. PW-5 Prahaladbhai Ranchhodbhai is examined at Exh. 14 as the second panch of panchnama at Exhibit-11 and he has not supported the prosecution case. PW-6 Ranubha Pratapsinh is examined at Exh. 15 as Police Constable, and according to him, after recording of the complaint of the case by PSI Mr. Kharadi, he was sent to the Civil Hospital along with Priskila and accused for medical examination. Doctor examined both of them, obtained blood samples and saliva samples of the both, and samples obtained were produced before the police station and Investigating Officer. PW-7 Exhibit – 18 Bela Tribhuvan Patel is the Doctor, who examined the accused and the victim in first point of time. She stated that on 5.2.1992 she was on duty at the Civil Hospital, in Causality Ward, at about 9.35 p.m. , Priskila was brought to her with the police yadi. Priskila was not cooperating and she found that there were no marks of injury on her body and there were no marks of stain of any kind on her body. She found only one stain on the face of vagina of Priskila, and for that she issued certificate, which is at Exh. 19. She found as under : CR.A/805/1993 7/31 JUDGMENT – Patient is not cooperative for examination. – Fairly built and family nourished. – Secondary sex character not developed. – Breast and genitals not developed. – No ext. mark injury anywhere on the body. – No any stain all over body. P/s. Bleeding in the form of stain present at vaginal origin Hymen intact. Done under g.a.” She also examined the accused and issued certificate at Exh. 20. Her opinion in respect of the accused was as under : – Patient is conscious. – Well nourished & well built – Secondary sex character well developed – Ext. genitals well developed – Pubic and axillary and chest hair present – No ext. mark of injury any where on body including ext. genitals – Smegma absent – No any stain all over body.” She further stated in her examination -in-chief that the Smegma was absent and on account of taking bath, smegma might be absent. After intercourse, if bath is not taken, this smegma might develop. In her cross-examination, she stated that, if there CR.A/805/1993 8/31 JUDGMENT were no internal injuries, there were no possibilities of bloodstains of internal injuries. She admitted that smegma might develop on account of intercourse. PW-8 - J. Handri Kribhakaran Dasnathan – complainant is examined at Exhibit-21. He stated that he had two children and was doing the work of priest in the said church. He stated that the incident occurred on 5.2.1992. He along with his wife Beularani and church member Augustin were present at his house. Augustin was discussing about obtaining a house on rent. At that juncture i.e. at 13.30 hours, Priskila was playing with a toy in the court yard. While they were pre-occupied in discussion, Priskila came running and crying in the house. She was much frightened. After addressing him as “dady – dady” she came to him. He asked Priskila that what had happened. Her hands were trembling on account of fright. Priskila showed her underwear and her underwear was bloodstained. On his asking, Priskila stated to the witness that she was called by the accused at his house and after taking out her underwear, the accused penetrated his private part in her private part and on account of pain, she came rushing to her house. He indicated by gesture towards the accused and stated that the accused had done the above act. The witness stated that his wife also saw blood oozing from the private part of Priskila and was dropping on the ground. The witness stated that he requested Augustin to look after Priskila and he went to call witness CR.A/805/1993 9/31 JUDGMENT Kamlaben. Kamlaben came to his house. Kamlaben asked about the incident to the mother, sister and grandmother of accused. Mother of the accused had undergone surgery and, therefore, she was sleeping inside the house. Kamlaben insisted to call Gautam. Gautam came out of the house and with folded hands requested Kamlaben to excuse him. The witness stated that his daughter was bleeding. Neighbours were gathered and they stated that Priskila was required to be taken to hospital, but a police complaint also was required to be filed. Therefore, along with Augustin and his daughter Priskila, he went to Sabarmati Police Station and offered his complaint. The witness stated that he was very much emotionally affected and could not explain to the police properly, but he conveyed everything to the police through Augustin. The police did not take action and, therefore, he called one Tabhani and thereafter police took action. He has been cross-examined in detail. PW-9 Beularani, wife of the complainant and mother of the victim is examined at Exh. 22. She stated that the accused was residing in the same society and in the adjoining house. The incident occurred on 5.2.1992 at about 1.30 p.m. Along with his husband and Augustin, she was at her house. Still they had not taken the lunch and they were about to take the lunch. Augustin was discussing about obtaining a house on rent for him. At that time, Priskila was playing in the court yard of the house and suddenly Priskila came running in the house and was crying. Her CR.A/805/1993 10/31 JUDGMENT husband asked Priskila what had happened. After sizing her frock, showed her underwear. It was noticed by her that the underwear was stained and wet by blood. She was profusely bleeding from her private part. Seeing the profuse bleeding, she was almost became unconscious. At that time, her husband asked Priskila that what had happened and Priskila replied that accused had taken her in the veranda of his house. After indicating by hand the house of Gautam, Priskila stated that the said act was done by the accused. Priskila further stated to her father that Gautam uncle (accused) showed rose apple (Jambul) and was called by her and, therefore, she went to the house of the accused. Priskila further stated that thereafter Gautam took out her underwear and inserted his private part in the private part of Priskila. On account of severe pain, she ran from there and came to the house. According to the witness, Priskila was crying and was frightened. According to this witness, thereafter, her husband called Kamlaben and Kamlaben went to the house of the accused. Kamlaben returned from the house of the accused and stated to her husband that Priskila has been ravished by the accused and, therefore, they were required to go to the Police Station and offer complaint. She identified the clothes, which were put on by Priskila at the time of incident. She has been cross-examined by the defence. PW-10 Dr. Haresh Umedchand Doshi, is examined at Exh. 29. According to him, while he was serving as Assistant Professor, CR.A/805/1993 11/31 JUDGMENT Gynaecology, in Civil Hospital, on 6.9.1992, patient named as Priskila was brought to him and he administered anaesthesia to her. On that day, at 11.00 a.m. Chief of the unit Dr. Bharatiben K Bhatt had examined Priskila, but Priskila was not cooperating and, therefore, Dr. Bharatiben had recommended to examine her with the help of anesthesia. On that day, in the morning, the patient had taken food, she could not be examined and was examined on 6.2.1992. On examination, he found the following physical conditions of victim Priskila, which he noted in case papers at Exh. 30, are as under : Local Exam: Moni pubic normal. Vulva normal. Ext. sphincteric of urethra normal. No marks of injury, viz. Scratches or abrasions present anywhere on the genitals & medial aspect of thigh. No bleeding. Two labia separated by finger Hymen intact. No marks of injury seen on hymen. Only sound could be passed through the hymen. No blood marks as the sound indicating no blood in vagina. Small cervix. Uterus felt. Both parametrium normal. On pressing vagina nothing could be extracted.' He has been cross examined by the defence and he stated that if there be superfluous and abrasions on the skin, those abrasions, ordinarily, would heel in 24 hours, but the marks of CR.A/805/1993 12/31 JUDGMENT heeled abrasions could be seen. PW-11 Amos Rupsinh Kharadi, is examined at Exh. 31. According to him, at the relevant juncture, he was working as PSI in Sabarmati Police Station. On 5.2.1992, the complainant came at about 15.00 hours for offering his complaint. He was knowing little Hindi and English. One Mr. Augustin was with him and with the help of Augustin, Complainant gave his complaint. Augustin knew Gujarati very well. The complaint was identified at Exh. 32 by the witness. He stated that thereafter he investigated the offence, draw the panchnamas and after seizing the clothes of the accused and Priskila, they were sent to Forensic Science Laboratory for opinion. In paras 2 and 3 of his examination-in-chief, the statement made to him by hostile witnesses were got corroborated from him. He has been cross-examined by the defence. 5 This is all is the evidence of prosecution along with the documentary evidence, as referred to above, including the opinion of Forensic Science Laboratory. After the evidence of the prosecution was over, further statement of the accused was recorded by the Trial Judge wherein after denying the evidence of the prosecution in toto, accused explained that on the day of the incident, he had been to College right from morning 7.00 a.m. to 2.30 p.m. Complainant and other 30 to 40 people were running a church in a house adjoining to his house. For the whole day, they were playing harmonium and dhol, which was causing disturbance CR.A/805/1993 13/31 JUDGMENT and nuisance. He had requested Complainant not to disturb by these noises because disturbance was caused in his study, but Complainant threatened him that he will cause noise and he will see that how the accused was studying. The accused produced on record a receipt of fee which he paid in College and for the examination. He further explained that the Complainant as well as his friends were requested by the Chairman of the society not to cause disturbance through noise to the persons residing in the society. The accused explained that this dispute was going on two years. He stated that he was innocent and he had not committed any offence. 6 The Trial Court, therefore, heard learned APP and the defence in detail and came to the above conclusion and, hence, this Appeal by the State. 7 On behalf of the State, learned APP Mr. K.C. Shah has vehemently argued that the judgment and order impugned in the Appeal is manifestly perverse, illegal and contrary to law. A serious incident of rape or attempt to commit rape, is very lightly appreciated by the learned Trial Judge and which has resulted in miscarriage of justice. Learned APP urged that one can visualize that, at the time of incident, victim – Priskila of aged four years. Within seven months of the incident, the evidence in trial came to be recorded. It is not expected that a child of four years, CR.A/805/1993 14/31 JUDGMENT ravished by the accused, would be examined by the prosecution, and even then, the learned Trial Judge came to the perverse conclusion that there was no direct evidence against the accused as the victim Priskila was not examined by the prosecution, and learned Trial Judge attached undue importance to this aspect. It is stated that, in rape cases, it is to be proved by prosecution whether the rape was committed or not and direct evidence is never insisted upon by the courts. It is stated that for the defence, as has been advanced by the accused, one cannot imagine that the parents of four years old, would put off their reputation at a stake for the petty reason, as explained by the accused. In rape cases, therefore, evidence has to be appreciated in the manner that none will put everything at the stake by filing a false rape case and particularly when victim is a child, and in this case of four years. Therefore, the learned APP has vehemently urged that the contradictions, as discussed by the learned Trial Judge in detail and with enforcement, is of no importance as the medical evidence and the evidence of father of the victim are sufficient to bring the guilt home of the accused. Referring to the medical evidence, it is submitted that, for proving a charge of rape, it is never a rule of law that there should be injury marks on the body of the victim or the accused or there be presence of smegma, etc. Therefore, according to learned APP, the medical evidence is not helpful when the case is proved beyond doubt by ocular evidence of the father of the victim, and that there was no reason that why he should CR.A/805/1993 15/31 JUDGMENT create a false case of rape committed upon the child against the accused. Our attention is also drawn to the evidence of Dr. Belaben, who is examined as PW-7. She has stated in her evidence that she found bloodstains on face of vagina of the victim. This is according to learned APP was a corroborating evidence of the complainant and there was no reason to discard this evidence and come to the conclusion that there was no medical evidence in support of the say of the prosecution witnesses. Dr. Belaben has examined the victim immediately after the incident. It must be noted, the learned APP further argued that, the profuse bleeding and dropping of blood on the ground, as has been deposed by the witnesses, assumes no relevance or significance when once it is proved by the evidence of the father of the victim that victim conveyed that the offence was committed by the accused and she indicated the accused by gesture and, therefore, it is neither necessary to examine the victim in the facts and circumstances of the case, and that otherwise, case is proved beyond doubt through the evidence of the father of the victim. Relying upon a decision in the matter of JITO vs STATE OF HIMACHAL PRADESH, as reported in 1990 Cri. L. J., 1434, it was argued that no one will even imagine to file a false case of rape putting minor child at a stake. On this aspect, learned APP Mr. K.C. Shah, has also relied upon a decision of the Apex Court in the matter of RAFIQ vs. STATE OF UTTAR PRADESH, as reported in AIR 1981 SC 559. A decision of the Apex Court in the matter of STATE OF PUNJAB vs. KARNAIL SINGH, as reported in (2003) 11 SCC 271, CR.A/805/1993 16/31 JUDGMENT is also relied upon by the learned APP, especially the observations made by the Apex Court in para 6 of the judgment. Relying upon decisions of the Apex Court in the matter of GURCHARAN SINGH vs STATE OF HARYANA, as reported in AIR 1972 SC 2661 and in the matter of HARPAL SINGH vs STATE OF HIMACHAL PRADESH, as reported in AIR 1981 SC 361, it was argued that the question of injury on the private part in rape case is immaterial, as consent of the minor is immaterial in rape cases. The assertions made by the complainant in his complaint is proved by him by cogent evidence and that is sufficient to prove the guilt of the accused. After relying on decisions of (i) the Orissa High Court in the matter of BASUDEV NAIK vs. STATE OF ORISSA, as reported in 1991 CRI. L. J. 1594; (ii) the Delhi High Court in the matter of JAGADISH Pd. SHARMA vs STATE, as reported in 1995 CRI. L. J. 2501 and (iii) the decision of the Orissa High Court in the matter of GANANATH JENA vs STATE OF ORISSA, as reported in 1996 CRI. L. J. 227, it was alternatively argued that if the case of rape is not proved beyond doubt, then certainly, the circumstances which the prosecution proved are sufficient to bring home the guilt on the part of the accused to have committed the offence of attempt to commit rape or an offence under Section 354 of the Indian Penal Code as deposed by the father of the victim girl sufficiently by gesture indicating the accused to be the person who committed the crime against her. Learned APP, therefore, urged that in totality of these circumstances, the case was proved beyond doubt and learned Trial Judge appreciated the CR.A/805/1993 17/31 JUDGMENT evidence in erroneous and wrong manner and came to a wrong conclusion, which is manifestly erroneous and requires to be interfered with. Therefore, it is urged that the Appeal be allowed and the accused should be convicted either under sections 376 and 363 or alternatively under Section 376 to read with Section 511 or under Section 354 of the Indian Penal Code. 8 As against that, learned Advocate Mr. K. G. Pandit, appearing for the respondent submitted that the prosecution firstly has to prove its case beyond reasonable doubt by cogent evidence which could not be done by the prosecution though it was the prime duty of the prosecution. In rape cases, medical