CR.A/1374/1999 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1374 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= PRAMJIBHAI RUPABHAI CHALSANIYA - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 06/02/2007 ORAL JUDGMENT CR.A/1374/1999 2/40 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. By filing instant appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short, the appellant ('the accused' for short) challenges the correctness of the judgment and order dated 7.12.1999 rendered in Sessions Case No.143 of 1994 by the learned Additional Sessions Judge, Rajkot District, Rajkot. By the impugned judgment and order, the accused who was charged for commission of the offences punishable under Sections 376, 366 and 506 of the Indian Penal Code ('IPC' for short), on the accusation that on 17.9.1993 he took the prosecutrix, Dinaben Mansukhbhai Parmar, at Shreyas Guest House and after giving some stupefying substance in the snacks, ravished her and thereafter again on 24.9.1993 at 2 P.M., he committed rape on her in her house, was held guilty for the same and, therefore, he was convicted for the offence punishable under Section 376 (2) IPC and sentenced to suffer R.I. CR.A/1374/1999 3/40 JUDGMENT for ten years and fine of Rs.1,000/- and in default of payment of fine, S.I. for a further period of one month. 2. The brief facts of the prosecution case, as disclosed from the complaint lodged by the prosecutrix, Dinaben, and unfolded during trial, are as under: 2.1. The prosecutrix, Dinaben Mansukhbhai Parmar, was residing at Rajkot since last twenty years. Her husband, Mansukhbhai alias Babu, met with an accident. A complaint was lodged against Dinaben by her husband. The accused, being a police constable, was investigating the said case. The accused prepared a plan to take disadvantage of the situation and threatened the prosecutrix. She was under the control of the accused and the accused kidnapped and compelled her to go with him at various places. She was given intoxicating medicines by the accused. She was raped right from the year 1991. It was CR.A/1374/1999 4/40 JUDGMENT further case of the prosecution that the accused misused his official position and spoiled the life of the prosecutrix. The accused is married and is having children. In spite of this fact, he took disadvantage of the situation and he used to threaten the prosecutrix and threat was given to the extent that the accused will disclose the illicit relation they had to her husband which will result into break down of her matrimonial life. It was further case of the prosecution that under threat the prosecutrix was taken to different places. Some drops of intoxicating drugs were added in the soft drinks or in the food given to the prosecutrix by the accused and though there was no consent from her, the accused took the benefit of the situation as she was having no control mentally and committed sexual intercourse with her. Once her husband suspected him and hence she asked her husband as to what was with the accused which compels her to follow him. Medical advise was sought for and it was found that some exciting intoxicant drugs CR.A/1374/1999 5/40 JUDGMENT were given to the prosecutrix. The accused used to come between 3.00 and 5.00 P.M. when her husband presumed to be out of the house. It was further case of the prosecution that once the accused had taken her to a guest house at Rajkot and he added some medicine in the 'pav-bhaji' and thereafter enjoyed sexual intercourse with her. It is further case of the prosecution that the accused tried to obtain certain writings from the prosecutrix so as to establish his innocence. Some chits were also taken by the accused. It was also the case of the prosecution that the prosecutrix was not in a position to reside at Rajkot. 2.2. The prosecutrix approached some advocate and lodged a written complaint before the learned Chief Judicial Magistrate, Rajkot and the learned Chief Judicial Magistrate, Rajkot was pleased to direct the D.C.B. Police Inspector to investigate into the complaint under Section 156 (3) of Code. CR.A/1374/1999 6/40 JUDGMENT 2.3. On receipt of the complaint from the Court, P.W.7, B.A. Tivari, started investigation. During the course of investigation, he recorded statements of the prosecutrix and other witnesses, capsules were recovered from the accused in presence of panchas, the accused was arrested, muddamal were forwarded to FSL for analysis and as per the report received from FSL, the capsules were containing an ayurvedic medicine 'prajna'. He also sent the prosecutrix for medial check up. On completion of the investigation, as incriminating evidence was found against the accused, he filed charge-sheet against the accused for commission of the offence punishable under Sections 376, 366 and 506 IPC in the Court of learned Chief Judicial Magistrate, Rajkot. 2.4. As the offence punishable under Section 376 IPC is exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, Rajkot committed the case to the Court of CR.A/1374/1999 7/40 JUDGMENT Sessions, Rajkot. 2.5. The learned Additional Sessions Judge, Rajkot to whom the case was made over for trial, framed charge against the accused for commission of the offences punishable under Sections 376, 366 and 596 IPC. The accused pleaded not guilty to the charge and claimed to be tried and, therefore, he was put to trial by the trial Court in Sessions Case No.143 of 1994. 2.6. In order to prove the charge against the accused, the prosecution has examined as many as seven witnesses and relied upon their oral testimonies, the details of which have been given in paragraph 4 of the impugned judgment and order. They are as under: P.W. No. Name Ex. No Page No 1 Dr.Pratimaben Trambaklal Nathvani, Medical Officer 8 24 2 Dr. Bharatbhai Pranshankar Dholakia 12 34 CR.A/1374/1999 8/40 JUDGMENT P.W. No. Name Ex. No Page No 3 Chandravadan Prabhulal Dalal 14 36 4 Dinaben Babulal Raval 15 37 5 Mansukhbhai Lakhmanbhai 19 58 6 Indrajit Labhshankar Vyas 21 64 7 Balkeshwarprasad Avadhbihari Tivari 26 70 2.7. To prove the culpability of the accused, the prosecution has also produced a number of documents and relied upon the contents of the same, details of which have been given in paragraph 4 of the impugned judgment and order. They are as under: Sr. No. Description Ex. No. Page No. 1 Dinaben's medical case paper 10 28 2 Medical certificate pertaining to Dinaben's examination 11 33 3 Medical certificate pertaining to Premjibhai's medical examination 13 35 4 Letter alleged to have been written by complainant 16 49 5 So-called agreement between accused an prosecutrix 17 50 6 Panchnama as tor recovery of medicine 20 62 CR.A/1374/1999 9/40 JUDGMENT Sr. No. Description Ex. No. Page No. 7 Extract from register maintained by Shreyas Guest House 22 65 8 Forwarding letter by investigating officer to FSL 27 72 9 FSL letter 28 74 10 FSL report 29 75 11 FSL report 30 76 12 FSL report 31 77 13 Letter by Police Inspector 32 81 14 Closing pursis 33 82 2.8. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Code. In his further statement he denied the case of the prosecution in toto. He has reiterated that he has been falsely implicated in the case. However, he did not lead any evidence nor did he examine any witness to support his defence. CR.A/1374/1999 10/40 JUDGMENT 2.9. On appreciation, evaluation, analysis and analysis of the evidence on record, the trial court came to the conclusion that the accused was in a dominating position. He misused his position and obtained the consent of the victim, if at all it was consent, under duress that she will be harassed or put behind the bars in a case filed by her husband against her. So far as sexual intercourse the accused had with the prosecutrix is concerned, there is no doubt that he had sexual intercourse with her and the victim has categorically stated on oath that she was not a consenting party. On the basis of the aforesaid finding, the trial court came to the conclusion that the complicity of the accused for commission of offence under sections 376 (2) and 506 (2) IPC has been proved whereas offence under Section 366 IPC is not established. Resultantly, the trial court convicted the accused for commission of the offences under Sections 376 (2) and 506 (2) IPC and sentenced him to suffer RI for ten years and fine of Rs.1000/- i.d., S.I. for further period CR.A/1374/1999 11/40 JUDGMENT of one month. But no separate sentence is imposed on the accused for commission of the offence under Section 506 (2) IPC, which has given rise to instant appeal at the instance of the accused. 3. Mr. Y.S. Lakhani, learned advocate for the accused, has taken us through the oral as well as documentary evidence on record and assailed the judgment and order of conviction and sentence recorded by the trial court by contending that the trial court has failed to appreciate the deposition of the prosecutrix and has come to a wrong conclusion. According to him, looking to the deposition of the prosecutrix, it is clear that she was a consenting party and with her will and wish the accused had sexual intercourse with her. It is also highlighted by him that the prosecutrix was keeping relation with the accused and she had gone with him willingly to various places. It is also pointed out by him that the story narrated by the CR.A/1374/1999 12/40 JUDGMENT prosecutrix that the accused had committed sexual intercourse with her from the year 1991 till 1993 does not inspire confidence. It is also asserted by him that it has come in the evidence that the relations between both the families were cordial. The prosecutrix was treating the accused as her brother. Similarly, the wife of the accused was claiming the husband of the prosecutrix as her brother and thus they had relation of tying 'rakhi' on the festival of 'Rakshabandhan'. On the aforesaid premises, it is contended by him that the impugned judgment and order suffers from the vice of non-appreciation of evidence which is illegal, improper and contrary to the basic principles of criminal jurisprudence and also contrary to the evidence on record. Therefore, the impugned judgment and order deserves to be quashed and set aside by allowing the appeal and thereby acquitting the accused of the offences with which he was charged. He, therefore, urged to allow the appeal. CR.A/1374/1999 13/40 JUDGMENT 4. In support of the aforesaid submissions, Mr. Lakhani, learned advocate for the accused, has relied upon the following judgments: (i) State of Karnataka v. Mapilla P.P.Soopi, AIR 2004 SC 85. (ii)State of Rajasthan v. Kishanlal, AIR 2002 SC 2250. (iii) Surjan and others v. State of M.P., AIR 2002 SC 476. (iv)Anmol s/o. Shridhar Gharde and others v. The State of Maharashtra, 1999 Cri.LJ 4239. (v) State of Punjab v. Gurmit Singh and others, AIR 1996 SC 1393. (vi)State of Maharashtra v.Vasant Madhav Devre, 1989 Cri.L.J. 2004. 5. Per contra, Mr. K.T. Dave, learned Additional Public Prosecutor for the respondent – State of Gujarat, has feebly contended that there CR.A/1374/1999 14/40 JUDGMENT is evidence on record that the accused being a police constable, misused the position and has developed relation with the family of the victim and under the guise of family relation, he allured the prosecutrix and took her with him at various places and put her in such a precarious position that she had no option but to surrender to the accused and, therefore, the impugned judgment and order passed by the trial court is based on the evidence on record which does not call for interference of this court in this appeal and since the appeal lacks merit, it deserves to be dismissed. He, therefore, urged to dismiss the appeal. 6. This Court has considered the submissions advanced by the learned advocates for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read CR.A/1374/1999 15/40 JUDGMENT and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with criminal cases, this Court has examined the entire evidence on record for itself independently of the trial court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial court has rightly recorded the order of conviction and sentence. 7. To prove the case against the accused, the prosecution has, as observed earlier, examined as many as seven witnesses and produced 14 documents. However, according to this Court, only evidence which is relevant for deciding whether the accused is guilty of the offence alleged against him would be that of P.W.4, Dinaben – the prosecutrix and P.W.5, Mansukhbhai CR.A/1374/1999 16/40 JUDGMENT – husband of the prosecutrix. Therefore, it would be advantageous to elaborately discuss their evidence only in this judgment. 8. Firstly, adverting to the evidence of P.W.4, Dinaben Mansukhbhai Parmar, the prosecutrix, Ex.15, at page 37, it is seen that at the relevant time, in the year 1993, she was staying at Rajkot. She has deposed that the accused was serving in Lodhvad Police Station. She and her husband had a quarrel with each other and in that quarrel her husband got burn injuries and in that regard a case was filed against her and in connection with the said case, the accused used to summon her and thus intimacy between the accused and her developed. Her husband had also developed relation with the wife of the accused and he treated her as his sister. Similarly the accused had developed relation with her as brother and there was relation between both the families and they used to tie 'rakhi' in the CR.A/1374/1999 17/40 JUDGMENT festival of Rakshabandhan. She has also testified that the account of her husband was maintained by the accused. She has also testified that the accused had allured her and told her that she would get peace in life if she stays with him. She has also testified that the accused had taken her to guest house. She has testified that there was outstanding due of Rs.70,000 from the accused in connection with the account maintained by him of the business of her husband. She has also testified that the accused had written letters to her under his signature which are on record at Ex.16 and 17. It is also testified by her that a complaint against a member of SC was filed by her. She has also filed a complaint against her father in law and mother in law. Similarly, she had also filed a complaint against her landlord in connection with a dispute pertaining to water and, therefore, she consumed some poisonous drug. Her landlord has also filed a complaint against her husband as well as her son. She has testified that she had a talk with her CR.A/1374/1999 18/40 JUDGMENT husband that the accused allured her to go with him and on his allurement she always used to go with him. It is also her case that the accused was minded to keep her in his house and wanted to separate her from her husband. In paragraph 25 of her cross-examination, she has denied the suggestion that she had in her statement before the police stated that she had physical relations with the accused willingly. She has also denied the suggestion that she had in her statement before the police stated that the accused had not used force or given threat. 8.1. It may be noted that this is an improved version of the prosecutrix in her cross- exhumation. The said contradiction has been proved by the evidence of the investigating officer and, therefore, it is clear that in her police statement she has stated that on her own will she allowed the accused to have sexual intercourse with her. Similarly, she has also CR.A/1374/1999 19/40 JUDGMENT stated that the accused has not used force nor gave threat to her. 8.2. The matter did not rest there. She has also admitted that a bottle of medicine 'prajna' was recovered from her. She has also admitted that she had stayed one night with the accused in a guest house at Rajkot. She has also admitted that on the next day of the said incident she was beaten by her husband. This is the sum and substance of the evidence of the prosecutrix. 9. Now we shall refer to the evidence of P.W.5, Mansukhbhai, Ex.19, page 58 of the paper book. He is the husband of the prosecutrix. He has, inter alia, testified similar version which has been deposed by P.W.4, Dinaben, with regard to the relations they had with the accused and according to him, their relations were cordial. He has also testified that her wife - prosecutrix has admitted before him that the accused used to CR.A/1374/1999 20/40 JUDGMENT add stupefying substance in snacks as well as cold drinks. He has also shown the capsules containing the stupefying substance. He has also testified that he had consulted 3-4 lawyers of Rajkot. He has also admitted that his wife – prosecutrix and the accused stayed in a hotel at Rajkot during night hours by giving fictitious names. This is the sum and substance of the evidence of P.W.5, Mansukhbhai, the husband of the prosecutrix. 10. On re-appreciation, re-evaluation, re- analysis and a threadbare close scrutiny of the evidence on record and on perusal of the testimonies of P.W.4 and P.W.5 and other witnesses as well as other documents on record, according to us, the story narrated by the prosecutrix that the accused having committed rape on her on various occasions from the year 1991 till the year 1993, does not inspire confidence on following grounds: CR.A/1374/1999 21/40 JUDGMENT (a) The prosecutrix, though denied in her evidence to have given police statement to the effect that she had sexual intercourse with the accused by her consent and also that there was no threat administered by the accused upon her, the said fact is proved by the deposition of the investigating officer, who has categorically stated in the cross-examination that the prosecutrix Dinaben has stated before the police that she has voluntarily allowed the accused to have sexual intercourse with her. The police officer has also admitted that the prosecutrix has stated before the police that at that point of time neither any force was applied nor was any threat administered to her. (b) When the prosecutrix has alleged that under the effect of intoxication on account of some stupefying drug being administered in the food or the cold drink by the accused that she was losing CR.A/1374/1999 22/40 JUDGMENT her control over her body and the accused used to commit rape upon her, if the relations went on for two years, the repetition of administration or mixing up of such drug either in the food stuff or in the cold drink is just not possible as the prosecutrix would never allow the accused to do any such act with a view to take any undue advantage of the situation, from the very second time. ( c) The prosecutrix has gone to Jamnagar and she had come back at night to Rajkot and thereafter she had been in the company of the accused in a guest house where it is alleged that the rape was committed. However, her sister-in-law, Shardaben, when disclosed to the husband of the prosecutrix that she had come to Rajkot at the earlier night and the prosecutrix has not disclosed the said fact but on the contrary she disclosed the fact that only in the next day morning she had come from Jamnagar, and having come to know that the CR.A/1374/1999 23/40 JUDGMENT prosecutrix had spoken lie to her husband, her husband has beaten her and only thereupon she had disclosed that she had been in the company of the accused on the earlier night. This conduct of the prosecutrix eloquently speaks of her consent to any such alleged illicit relation if at all the accused had with the prosecutrix. (d) Having regard to the relation between two families of tying Rakhi by the prosecutrix to the accused and by accused's wife to the husband of the prosecutrix, it clearly shows that there were thick social and family relations between two families. Not only that it has come on record that the accused used to help the husband of the prosecutrix in his business. If this is the story disclosed by the prosecutrix herself, there would not be any question of the accused having over powered her and administered some stupefying drugs and committed rape upon her which went on for two years. CR.A/1374/1999 24/40 JUDGMENT (e) The drug in question which is an Ayurvedic Veterinary medicine is admittedly recovered from the prosecutrix herself. The nature of the drug and its effect is not specifically coming on record. The details about the contents of the drug and the ingredients thereof with any specific analysis are not coming on record. Therefore, the very theory of administration of stupefying drug in the food or in the cold drink and under the intoxicant effect of the same that the accused was taking disadvantage is neither proved nor is found probable in the facts of the case. 11. Besides the above referred to deductions, there are circumstantial evidence to show that the prosecutrix was a consenting party to the sexual intercourse the accused allegedly had with her. It has also come in the evidence of the prosecutrix that with the help of her husband, CR.A/1374/1999 25/40 JUDGMENT after taking advice of 3-4 advocates, she has filed a private complaint in the court after lapse of more than two years from the alleged relation of sexual intercourse started between the prosecutrix and the accused. Even after the last incident of sexual intercourse stated to have taken place on 17.9.1993 after which the prosecutrix had already had intercourse with her husband on 3 to 4 occasions and that the complaint came to be filed on 29.10.1993. The medical officer who recorded the history of the prosecutrix has stated that the last intercourse the accused had with the prosecutrix on 24.10.1993 and thereafter she had physical relationship with her husband on 3 to 4 occasions. These facts go to show that though the prosecutrix wanted to allege against the accused that the accused had committed sexual intercourse with her on number of occasions, she has come to know about this only recently and when her husband doubted her, she disclosed this fact to her husband. These facts on record clearly CR.A/1374/1999 26/40 JUDGMENT indicate that not only she has lodged a complaint after lapse of more than two years and that too without giving any explanation as to why the complaint before the police was not filed and also with a created and concocted