CR.A/1411/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1411 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE 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 ? ========================================================= GULAMHUSAIN AHMED BAGI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR US BRAHMBHATT 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 : 10/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) The appellant herein, who was original accused no. 1 in CR.A/1411/2005 2/10 JUDGMENT Special Atrocity Case No. 29 of 2004, preferred this appeal challenging his conviction for the commission of offences punishable under sections 354, 377, 366-A, 376 read with section 511 of the Indian Penal Code [IPC] and for the commission of offences punishable under sections 3 (1) 12 and 3 (2)5 of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, [hereinafter referred to as 'the Atrocity Act'] by judgment and order delivered by the learned Sessions Judge, Bharuch [hereinafter referred to as 'the Ld. Trial Judge'] on 6/6/2006 in aforesaid Special Atrocity Case No. 29 of 2004. The Ld. Trial Judge awarded sentence of rigorous imprisonment [RI] for 10 years and fine of Rs.2,000/-, in default to undergo further simple imprisonment for 2 months in connection with all the above referred offences. By virtue of the impugned judgment and order, the original accused no. 2 – Mohmed Gulamnabi Shah came to be acquitted. 2. The prosecution case, in nutshell, is as under :- 2.1. On 20/3/2004 at about 2.30 pm to 3.00 pm in the area called Navi Vasahat, near Sagbara crossing in village Dadhal, Taluka Ankleshwar, the present appellant – accused kidnapped the prosecutrix Sangeetaben aged about 10 years and took her to his house and raped her and she was threatened that if she would disclose about the sexual intercourse to anybody else, she would be killed. That at the time of commission of the offence, the appellant – accused was knowing that victim Sangeeta belongs to scheduled tribe. In connection with this incident, first informant Rajubhai Vasava, who happened to be grand- father of victim Sangeeta, lodged the FIR in Ankleshwar Police Station. The FIR was registered by the police. Police investigation was commenced. The Investigating Officer recorded statements of material CR.A/1411/2005 3/10 JUDGMENT witnesses including the prosecutrix. In presence of panchas panchnama of scene of occurrence was drawn and the clothes of the accused and the prosecutrix were seized. After receipt of the medical certificates of the prosecutrix, the police filed charge-sheet in the Court of the Ld. Judicial Magistrate First Class, Ankleshwar. As the offence was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions at Bharuch. 3. The Ld. Trial Judge framed charge against the appellant – accused as well as co-accused Mohmed Gulamnabi at exh. 7 for the offences punishable under sections 366-A, 376 and 506 (2) IPC and for the offences punishable under sections 3 (1) 12 and 3 (2)5 of the Atrocity Act. As the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After completion of the evidence, the Ld. Trial Judge recorded further statements of the accused under section 313 of the Criminal Procedure Code wherein the accused denied generally all the allegations levelled against him by the prosecution and stated that he was falsely implicated in this case as he had disputes with the complainant. After appreciating the evidence on record and after considering the arguments advanced on behalf of both the parties, the Ld. Trial Judge convicted the present appellant – accused for the offences punishable under sections 354, 377, 366-A, 376 read with section 511 of the IPC and for the offences punishable under sections 3 (1) 12 and 3 (2)5 of the Atrocity Act and awarded collective sentence in connection with all the aforesaid offences as described hereinabove. Hence, the original accused no. 1 preferred this appeal. 4. Learned advocate Mr. US Brahmbhat for the appellant CR.A/1411/2005 4/10 JUDGMENT submitted that the impugned judgment delivered by the Ld. Trial Judge is contrary to law and evidence on record. It is submitted that along with other offences, the Ld. Trial Judge convicted the accused for the offences punishable under sections 354 and 377 of the IPC, for which even no charge was framed against the accused. It is further submitted that considering the deposition of so called victim Sangeeta Jayantibhai, she outright admitted in her deposition that she gave evidence against the accused at the instance of her grand-mother. She further admitted in her deposition that there was no good relationship between the accused and her father as the accused was demanding money from her father. That both were at enemical term. It is submitted that as a matter of fact Sangeeta referred “Chhabu Doha” as accused. At the time of trial, along with the appellant – accused, there were two accused persons and the prosecution nowhere clarified as to out of the two, whom Sangeeta was addressing as Chhabu Doha. It is submitted that even considering the deposition of first informant Rajubhai, it does not inspire any confidence. According to the deposition of Sangeeta exh. 11, at the time when she was raped by the accused, the first informant Rajubhai came into the house of the accused and even the accused pushed the first informant Rajubhai; whereas considering the deposition of Rajubhai, he no-where stated that he had witnessed the incident of rape or that he was pushed by the accused. That even considering the medical evidence, it becomes clear that Sangeeta was not at all subjected to any intercourse. In the impugned judgment, even the Ld. Trial Judge accepted this situation that the offence of rape punishable under section 376 of the IPC is not proved. However, without any cogent reason, the Ld. Trial Judge held that there was attempt to commit rape and thereby convicted the appellant for the CR.A/1411/2005 5/10 JUDGMENT offences punishable under section 376 read with section 511 of the IPC. Therefore, it is submitted that the prosecution, in fact miserably failed to prove its case beyond any reasonable doubt. It is, therefore, requested that the appeal be allowed and the impugned judgment and order recording conviction of the appellant – accused be set aside and the accused be acquitted. 4.1. On behalf of the respondent – State, Ld. APP Mr. Bhatt vehemently opposed this appeal and stated that the prosecution successfully proved its case that the appellant – accused raped the minor girl aged about 10 years. That the Ld. Trial Judge did not err in appreciating the evidence on record and recording conviction of the appellant – accused. Therefore, it is submitted that the appeal be dismissed. 5. We have given our thoughtful consideration to the arguments advanced on behalf of both the sides. We have gone through the relevant evidence in this case. As stated above, the Ld. Trial Judge framed charge at exh. 7 and the appellant – accused was charged for the commission of offences punishable under sections 366A, 376 and 506(2) of the IPC as well as for the commission of offences punishable under section 3(1)12 and Section 3(2)5 of the Atrocity Act. In the impugned judgment, the Ld. Trial Judge recorded the conviction of the appellant – accused for the offences punishable under sections 354, 377, 366A, 376 read with section 511 of the IPC and for the offences punishable under section 3(1)12 and section 3(2)5 of the Atrocity Act. There is substance in the arguments advanced by learned advocate Mr. Brahmbhatt for the appellant that though the accused was not charged for the commission of offences punishable under sections 377 and 354 of the IPC, yet, along with other CR.A/1411/2005 6/10 JUDGMENT offences, the Ld. Trial Judge recorded conviction of the accused for the offences punishable under sections 377 and 354 of the IPC. Even considering the impugned judgment, nowhere the Ld. Trial Judge assigned any reason as to why the accused came to be convicted for the offences punishable under sections 377 and 354 of the IPC. The offence punishable under section 376 of the IPC and the offence punishable under section 377 of the IPC are two different and distinct offences. Moreover, when the Ld. Trial Judge in the impugned judgment convicted the accused for the offences punishable under section 376 read with section 511 of the IPC, there was otherwise no question of convicting the accused for the offence punishable under Section 354 of the IPC. Under such circumstances, it can safely be said that the conviction recorded by the Ld. Trial Judge for the offences for which the accused was not even charged by him, cannot be sustained. 6. Even considering the case on its own merits and re- appreciating the evidence adduced by the prosecution in this case, it clearly transpires that so far as the offence punishable under section 376 is concerned, the prosecution miserably failed to prove the same. Even in the impugned judgment, this aspect of the matter is even admitted by the Ld. Trial Judge in paragraph 18 of the judgment. Even the Ld. Trial Judge came to the conclusion that the offence punishable under section 376 of the IPC cannot be said to have been established. However, he came to the conclusion that the accused committed an offence of attempt to commit rape, punishable under section 376 read with section 511 of the IPC. In this connection, considering the deposition of prosecutrix Sangeeta, exh.11, during her entire examination-in-chief, she referred the name of “Chhabu Doha” as the man who raped her. However, she stated that CR.A/1411/2005 7/10 JUDGMENT Chhabu was present in the Court and she identified him. Now, during the course of trial, along with appellant – accused, in all there were two accused persons. She does not specify in her deposition as to out of the two accused persons, namely Gulam Hasain Ahmad Bagi (the appellant) and Mohmad Gulam Nabi, to whom she referred as Chhabu Doha. Even if it is admitted that she referred Chhabu Doha to the present appellant – accused, yet, considering her cross-examination, she categorically admitted that whatever she deposed during the course of her deposition was at the instance of her grandmother and her grandmother had stated to her that the above facts are to be deposed by her. Moreover, in her deposition, she stated that at the time when she was raped by Chhabu Doha, at that time her father came and intervened, but, Chhabu Doha had pushed her father. However, the prosecution did not examine her father Jayantibhai as witness in this case, but, her grandfather, who is first informant namely Rajubhai Vasava came to be examined at exh. 12 in this case. Considering the deposition of Rajubhai, exh. 12, he stated that at the time of incident, he was sleeping in his house. At that time, he heard shouting by Sangeeta. He woke-up and from his house, he saw that Sangeeta was coming out from the house of the appellant – accused. He called Sangeeta, but, she ran away. He stated that his house and the house of the appellant – accused are situated in the nearby proximity. Rajubhai did not say in his deposition that he went into the house of the accused and he saw the incident and he tried to intervene, but, he was pushed by the accused. Moreover, considering the medical evidence on record and especially considering the deposition of Dr. Vijaybhai, exh.25, it nowhere transpires that prosecutrix Sangeeta was subjected to any sexual CR.A/1411/2005 8/10 JUDGMENT intercourse. Considering the certificate, exh. 26 and the deposition of Dr. Vijaybhai, it transpires that the history was given pertaining to oral intercourse, 5 days back. It is further stated that there was no history of vaginal intercourse. There was no injury on her body or on any private part of her body. In the final certificate after receipt of the FSL report, Medical Officer certified that the FSL report and clinical findings are suggestive that she has not undergone any oral intercourse. In light of the said circumstances, in paragraph 18 of the impugned judgment, the Ld. Trial Judge did not accept the case of the prosecution that the accused committed offence of rape punishable under section 376 of the IPC. However, he came to the conclusion that the accused committed offence of attempt to commit rape punishable under section 376 read with section 511 of the IPC. Even considering the FSL report, exh. 37, no marks of blood or semen were noticed on the frock of the victim or on the Lungi of the accused. However, considering the deposition of Sangeeta as well as deposition of first informant her grandfather Rajubhai Vasava and the medical evidence on record, there does not appear that even the accused committed offence of attempt to commit rape. As stated above, Sangeeta in her deposition, exh.11 clearly stated that what she deposed in her deposition was at the instance of her grandmother. She further stated that when she was called by Chhabu Doha, immediately, her father had come. She further admitted that there was enemical relation between Chhabu Doha and her father. 7. The prosecution examined Kamalaben Rajubhai at exh.13 and according to her deposition, she is grandmother of Sangeeta. She stated that at the time of incident, she had gone to Surat and when she returned from Surat, Sangeeta told her that Chhabu misbehaved with her. CR.A/1411/2005 9/10 JUDGMENT In her cross-examination, she stated that they had purchased Mangalore tiles from the accused for Rs.200/- and they had paid Rs.100/- to the accused and the accused was demanding remaining Rs.100/- from them. In this connection, again considering the deposition of Sangeeta, exh.11, she admitted that Mangalore tiles were purchased from Chhabu Doha. She stated that before about 15 days from the date of the incident, her father was caught with wife of Chhabu Doha and her father was beaten by police. Under such circumstances, it can safely be said that the family of the accused and the family of Sangeeta were not in good terms and both the families were at enemical terms. 8. It is elaborately discussed above in this judgment that though the accused was not specifically charged for the commission of offence punishable under Section 377 of the IPC, but, the trial Court recorded his conviction for the said offence. Even re-appreciating the evidence on record and especially the medical evidence, even the possibility of oral intercourse was ruled out. However, as a matter of fact, the offence of rape and the unnatural offence are two different and distinct offences. In the impugned judgment, the Ld. Trial Judge convicted the accused for the offence punishable under section 377 of the IPC, without framing charge to that effect against the accused and even without assigning any reason in the judgment as to how in absence of specific charge to that effect, he was recording conviction of the accused for the aforesaid offence. 9. In light of the entire above discussion, we are of the considered opinion that the prosecution failed to prove its case beyond any reasonable doubt against the appellant – accused. The appeal therefore, deserves to accepted and the impugned judgment and order CR.A/1411/2005 10/10 JUDGMENT recording conviction of the appellant – accused deserves to be interfered with. 10. For the foregoing reasons, the appeal is allowed. The impugned judgment and order dated 6/6/2005 delivered by the Ld. Trial Judge in Special Atrocity Case No. 29 of 2004 recording conviction of the appellant-accused for the offences punishable under sections 354, 377, 511 366(A), 376 of the Indian Penal Code and under sections 3(1) 12, 3 (2) 5 of the Atrocity Act is set aside and the appellant-accused is ordered to be acquitted. The appellant be set at liberty from the jail forthwith, if he is no longer required in any other case. Fine, if paid, to be refunded to him. ( A.L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.