CR.A/1382/2007 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1382 of 2007 HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ================================================== 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 ? ================================================== RAKESHBHAI KALIDAS RATHOD - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================== Appearance : MR NK MAJMUDAR for Appellant MR HL JANI, APP, for Opponent ================================================== CR.A/1382/2007 2/16 JUDGMENT CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal is directed against the judgment and order of conviction and sentence passed Principal Sessions Judge, Bharuch dated 29th October 2007 in Sessions Case No.15 of 2007 whereby the learned Sessions Judge has convicted the appellant under section 376(2) of IPC and ordered to undergo rigorous imprisonment for ten years and to pay fine of Rs.10000/- (Rupees ten thousand) in default to under go further simple imprisonment for two years. The learned sessions Judge has further ordered that a sum of Rs.8000 2.0 The prosecution case, in short is as under: 2.1 The victim was staying with her parents at village Derol, CR.A/1382/2007 3/16 JUDGMENT Taluka Jambusar, District Bharuch. At the relevant time she was studying in 5th standard. According to the complainant, on 28.12.2006 she had gone out of station and had come back in the evening at about 5 O ' clock. After that time she had gone to play at Falia where the accused Rakesh Kalidas Rathod came. The accused Rakesh Kalidas asked her to go to his house and took her to his house, closed the front door. He caught hold of her hand and covered her mouth by the other hand and forcibly took her to near the canal in a bush. Thereafter he removed the clothes of the accused and made her to lie down on the floor, removed his own clothes and committed rape on her. At that time mother of the victim, one Baldevbhai Chandubhai Raval, Ranjitbhai Pratapbhai, and others came there in search of the victim. On seeing her the accused took his pants and run away from the place. The victim told about the incident to her mother and since it was late no complaint was filed on that day. 2.2 On the morning of 29.12.2006 they went to Bharuch Taluka Police Station and lodged the complaint. PSI Shri Dipakkumar Harishkumar Bhatt noted the complaint which was registered as CR.A/1382/2007 4/16 JUDGMENT C.R. No.140/2006 with Bharuch Rural Police Station for the alleged commission of offence punishable under sections 376 of IPC. The said PSI Dipakkumar has taken over the investigation, prepared the panchnama of the victim, collected her clothes which she was wearing at the time of the incident. Thereafter he went to the place of incident and prepared panchnama and thereafter arrested the accused under a panchnama. 2.3 In the meanwhile victim was sent for medical examination to civil Hospital, Bharuch and the clothes and other muddamal articles were sent for scientific investigation to FSL. Thereafter he has procured the birth certificate of the victim and collected details of her date of birth, in order to verify her age visited the school where she was studying and collected necessary certificates in respect of her age. 2.4 After completing the investigation he has submitted the chargesheet in the court of learned Chief Judicial Magistrate, Bharuch which was numbered as Criminal Case No.752 of 2007. Thereafter FSL report was received which was forwarded to the CR.A/1382/2007 5/16 JUDGMENT Court. The case was sent before the learned 8th Additional Senior Civil Judge and Judicial Magistrate, First Class, Bharuch who confirmed the receipt of all the papers and record of investigation and offered the accused legal assistance. Since the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate, Bharuch committed the same to the Court of Sessions, Bharuch under the provisions of section 209 of CrPC. On receiving the same it has been numbered as sessions Case No.15/2007 and the said has been heard by the Principal Sessions Judge, Bharuch. 3.0 On production of accused learned Sessions Judge framed charges against the accused and the accused pleaded not guilty to the charges and prayed for trial. 3.1 To prove the guild against the accused the prosecution has examined the following witnesses: 01. Bhupendrabhai Jagdishbhai Vasaval (PW1-Exh.8) 02. Gangaben Sureshbhai Machipatel (PW2-Exh.11) 03. Jagdisbhai Somabhai Rathod (PW3-Exh.13) 04. Sikkander Fatesinh Chauhan (PW4-Exh.16) 05. Sunderben Kadarbhai Vasaval (PW5-Exh.18) 06. Taraben Kadarbhai Vasava (PW6-Exh.19) 07. Baldevbhai Chandubhai Raval (Exh.7-PW 21) CR.A/1382/2007 6/16 JUDGMENT 08. Dr. IndirabenHiralal Parmar (PW8-Exh.22) 09. Dr. Kamleshbhai Ganeshbhai Rathod (Exh.9-Exh.29) 10. Dr. Dipak Gopalbhai Thakker (PW10-Exh.33) 11. Abdulla Ismail Patel (PW11-Exh.36) 12. Yakubali Ismail Patel (PW 12-Exh.40) 13. PSI Dipakkumar Harishkumar Bhatt (PW13-Exh.43). 3.2 The prosecution has relied upon the following documents: 01 Panch slip from muddamal (Exh.9-10) 02 Panchnama of accused.(Exh.14) 03 Panchnama of scene of offence (Exh.14) 04 Complaint (Exh.20) 05 Yadi for examining the victim to Medical Officer Civil Hospital, Bharuch (Exh.23) 06 Medical case papes of Taraben (Exh.24) 07 Report of Radiologist in respect of age of Taraben (Exh.25) 08 Laboratory Report form (Exh.26) 09 Medical examination report of Taraben (Exh.27) 10 Medical examination report of Taraben (Exh.28) 11 Yadi for medical examination (Exh.30) 12 Medical examination certificate of accused (Exh.31) 13 Report from Gram Panchayat in respect of date of birth of Tarben (Exh.37) 14 Certificate of birth of Taraben (Exh.41) 15 School Register in respect of Taraben (Exh.41) 16 Certificate issued by Primary School, Derol (Exh.42) 17 Panchnama of Taraben including her clothes (Exh.44) 18 Report of dispatch (Exh.45) 19 Receipt in respect of receipt of muddamal (Exh.46) 20 Forwarding letter of FSL (Exh.47) 21 FSL Report (Exh.48) 22 Report of Serological examination (Exh.49) 3.3 On submission of closing pursis, learned Sessions Judge has recorded further statement of accused under section 313 of Code CR.A/1382/2007 7/16 JUDGMENT of Criminal Procedure. After giving opportunity to the learned Advocates for the respective parties, the learned Sessions Judge, has delivered the judgement and convicted the appellant-accused as mentioned above which has given rise to the present appeal. 4.0 Mr. N.K. Majmudar, learned Advocate for the appellant has submitted that the prosecution has not established the against the appellant beyond doubt and therefore the appeal deserves to be admitted and allowed. 4.1 He submitted that there are no independent eye witnesses to the incident in question and therefore, the evidence of the eye witness cannot be accepted. 4.2 He further submitted that the medical evidence, especially the FSL report did not support the case of the prosecution and therefore the benefit of doubt is required to be given to the accused. 5.0 Mr. H.L. Jani has vehemently opposed the appeal and submitted that the prosecution was able to prove the case beyond CR.A/1382/2007 8/16 JUDGMENT doubt and it is established that the accused has committed the alleged offence. 5.1 He submitted that the evidence of the victim is enough to prove the case against the accused. It is further submitted that the say of the victim is fully supported by the say of the mother of the victim and also Baldevbhai Chandubhai Raval (PW7). 5.2 He has submitted that the victim was minor of the age of 11 years at the time of incident and therefore this is not a fit case where a lenient view is required to be taken. 5.3 He has further submitted that in any case the learned Sessions Judge has imposed the minimum punishment and therefore no interference is called for in the present appeal. 6.0 We have heard the learned Advocates for the respective parties and gone through the oral as well as documentary evidence which has been shown to us by the learned Advocates for the respective parties along with the judgment delivered by the court below. R & P was also called for and the matter was adjourned for CR.A/1382/2007 9/16 JUDGMENT some time to enable the learned Advocates for the appellant and learned APP to go through the same and accordingly they have perused the same. We have also gone through the papers of R & P minutely. 7.0 In order to prove the case against the accused the prosecution has examined mother of the victim at Exh.18. She deposed that she had two sons and two daughters and the eldest daughter is Tara and her age was 11 years. She deposed that on 28.12.2006 the victim had gone to Vyalu and had come back at about 5 O’ clock in the evening. She stated that the accused had called the victim and taken to near the canal and had committed rape on her. Since the victim did not return, she had gone to search for her along with others and they saw the accused and victim at the place of the incident. The clothes of the victim were removed and the accused had mounted on top of her who had also not worn any clothes. On seeing them Rakesh took his pants and run away from there. Thereafter the victim told this witness about the incident and as to what Rakesh had done to her. Thereafter since it was late evening, on the next day they went to police station and lodged the complaint. She has identified the CR.A/1382/2007 10/16 JUDGMENT accused in court and she has also identified the muddamal clothes. She has been cross-examined thoroughly, but nothing incriminating has come out in her cross examination. 7.1 The victim was examined at Exh.19. She has deposed that on the day of the incident Rakesh had taken her to his house and thereafter through the back door of the house to near canal bush. She deposed that Rakesh had removed her clothes and also his and had committed rape on her. She had deposed that at that time her mother and others came there searching for her and on seeing them Rakesh had run away taking his pants. This witness has identified the victim in the court. She has also identified the clothes of the accused. 7.2 The prosecution has examined Baldevbhai Chandubhai Raval (PW7-Exh.21). He deposed that on the day of the incident the mother of the victim had called him as the victim was not found and therefore he had accompanied the mother of the victim and others in search of victim. When they reached near the canal they saw the victim. The victim had told them that Rakesh had committed rape on her. The evidence of this witness has fully CR.A/1382/2007 11/16 JUDGMENT corroborated the evidence of mother of victim (PW5) and the victim (PW6). 8.0 The prosecution has examined Dr. Indiraben Hiralal Parmar (PW8-Exh.22) who was medical officer in Bharuch Civil Hospital. She deposed that victim had reached the hospital on 29.12.2006 at 4.45 pm along with Yadi. The victim had explained to her about the incident and that the accused had committed rape on her and by that time her mother and others came there and the accused had run away. Thereafter after taking consent of the victim and her mother she was examined. After the detailed examination this doctor opined that looking to the overall aspects of the matter, there is evidence to show that there was forcible intercourse with her. 8.1 Dr. Dipak Gopalbhai Thakkar(Exh.10) was examined at Exh.33. He was Gynecologist at Civil Hospital, Bharuch at the relevant time. Taraben was brought there on 29.12.2006 and he has examined her. He had noticed that there was aggression on the outside of her private part and there was bleeding from her vagina. From the said evidence he stated that the accused had CR.A/1382/2007 12/16 JUDGMENT intercourse with the victim. 8.2 Dr. Kamleshbhai Ganeshbhai Rathod (PW9) was examined at Exh.29 who has examined the accused Rakeshbhai Kalidas Rathod. On the day of the incident he was Medical Officer at Civil Hospital, Bharuch. On 29.12.2006 at about 9.30 Rakeshbhai Kalidas was brought to the Hospital by PSI Shri B.H. Bhatt along with Police Yadi. He has examined the accused and taken samples of blood, pubic hair, etc. 9.0 Abdulla Ismail Patel (PW 11-Exh.36) was examined by the prosecution. He was Talati cum Mantri of of Derol village. He stated that according to Birth and Death Register maintained by the village, the date of birth of Taraben is 10.6.1995. He has also produced copy of the relevant register. 9.1 The prosecution has examined Yakubali Ismail Patel (PW12- Exh.40) who is principal of Primary School at Derol. He deposed that the school maintains a register showing the name, date of birth, caste, etc. He deposed that the date of birth of Taraben was noted as 10.6.1995. He had also produced the Register at Exh.41. CR.A/1382/2007 13/16 JUDGMENT 9.2 Dipakkumar Harishkumar Bhatt (Exh.13) was examined at Exh.43. He deposed that on 29.12.2006 the victim was brought to the police station and complained that one Rakesh Kalidas Vasava had committed rape on her. He has therefore noted the complaint and started investigation, prepared panchnama of the victim, collected the clothes of the victim under panchnama and thereafter when to the place of incident and prepared panchnama of the place of incident. The accused was thereafter arrested and he has completed all the formalities including sending the victim and the accused for medical examination. During the investigation he has also collected evidence with regard to the age of the victim from Gram Panchayat as also from the primary school. The evidence of this witness is fully corroborated with the evidence of the complainant and other eye witnesses. 10.0 From the evidence of mother of the victim (PW5), the victim (PW8) and Baldevbhai Raval (PW7) it is amply clear that the accused had taken the victim to behind his house, near the canal and committed rape on her. They have categorically stated that they have seen the appellant at the scene of offence and this fact CR.A/1382/2007 14/16 JUDGMENT has not been disputed. Therefore the presence of the appellant is established at the scene of offence beyond doubt. In our opinion these witnesses had no reason to falsely implicate the present accused in such an offence, especially when the victim is young daughter of PW5. In any case, Baldevbhai Chandubhai Raval (PW7) is an independent witness who has clearly supported the evidence of the victim and her mother. 10.1 The medical evidence also supports the say of the victim which has been proved by medical certificate and examination of the two doctors who were examined at Exh.22 and Exh.10. Even the evidence of the doctor who examined the accused has also supported the prosecution case. From the medical evidence of Dr. Indiraben Hiralal Parmar (PW8-Exh.22), and Dr. Dipak Gopalbhai Thakkar (PW10-Exh.33) it is clearly established that there was intercourse with the victim in view of the fact that the hymen was raptured and there was bleeding from private part of the victim. At the time of examination there was bleeding from private part and therefore the Sessions Court has rightly come to the conclusion that it cannot be believed that there was no penetration.The FSL CR.A/1382/2007 15/16 JUDGMENT Report clearly states that the vaginal swab was found on the clothes of the accused and victim was not in a position to give the vaginal swab. However, merely because the victim was not in a position to give the vaginal swab, it would not make any difference because all the other evidence clearly establishes the involvement of the accused. 10.2 At the relevant time the age of the victim was 11 years. The investigating officer had collected the evidence from Village Office as also from the Primary school where the victim was studying. According to the village register the birth date of the victim is 10.6.1995 and therefore she was 11 years of age at the relevant point of time. Even as per the school record, Derol, same date is mentioned as her date of birth. Therefore it is proved beyond doubt that the victim was 11 years of age at the relevant time. 11.0 In view of the overall facts and circumstances of the case and looking to the seriousness of the offence and particularly the age of the victim is less than 12 years, we are in complete agreement with the reasonings adotped and findings recorded by the Sessions Court. We are of the opinion that the sentence CR.A/1382/2007 16/16 JUDGMENT awarded by the learned Sessions Judge is just and proper and the appeal deserves to be dismissed. Accordingly this appeal is dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVEIR, J.] ar