CR.A/674/2003 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 674 of 2003 With CRIMINAL APPEAL No. 419 of 2005 With CRIMINAL APPEAL No. 2448 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 ? ========================================================= AMRATJI MANSUKHJI THAKOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR US BRAHMBHATT for Appellant(s) : 1, in Criminal Appeals No. 674/2003 & 419/2005 MR PB GOSWAMI for Appellant in Criminal Appeal No. 2448/2005 MR KC SHAH, APP for Opponent(s) : 1 – in all matters. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 14/10/2008 CR.A/674/2003 2/9 JUDGMENT ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) All these three Criminal Appeals arise out of the judgment and order delivered by the Ld. Additional Sessions Judge, 3rd Fast Track Court, Banaskantha at Deesa [for short 'the Ld. Trial Judge'] on 27/2/2003 in Sessions Case No. 127/2001. The present appellants who were original accused nos. 2, 4 and 5 challenged the legality and validity of the impugned judgment by preferring these appeals. 1.1. By virtue of the impugned judgment, the appellant-accused no. 5 - Amrutji Mansukhji Thakore of Criminal Appeal No. 674/2003 and the appellant-accused no. 2 - Hemantkumar Mulshankar Raval of Criminal Appeal No. 419/2005 and the appellant-accused no. 4 – Ramanbhai Sombhai Oad of Criminal Appeal No. 2448/2005 came to be convicted for the offences punishable under sections 376 and 323 of the Indian Penal Code [IPC] and each of them were sentenced to undergo rigorous imprisonment [RI] for 10 years and fine of Rs.6,000/- in default, to undergo further RI for 6 months for the offence punishable under section 376 of the IPC and RI for 6 months and fine of Rs.500/- in default to undergo further RI of one month for the offence punishable under section 323 of the IPC. 2. The prosecution case, in nut shell, is as under :- 2.1. One Gomatiben Babuji, aged about 12 years was kidnapped from her lawful guardianship of parents by original accused no. 1 – Parbat Dhudabhai Oad and original accused no. 3 Dalpatbhai Raval on 7/6/2001. CR.A/674/2003 3/9 JUDGMENT Both the accused persons Parbat and Dalpat committed forcible intercourse with Gomatiben. Gomatiben was taken by both the accused persons to a temple of Goddess Jasma situated at Patan. Both the accused and Gomatiben stayed in the temple and during night hours present appellants who were original accused nos. 2, 4 and 5 committed gang rape on Gomatiben. Gomatiben's father Babuji and Shardaben made intensive search, but Gomatiben could not be found. On 12/6/2001 Gomatiben went to Deesa Police Station. That before reaching Deesa Police Station first informant Shardaben was telephonically informed and, therefore, first informant Shardaben had reached the police station and Shardaben lodged the police complaint. FIR was registered and police commenced investigation. Police recorded statements of material witnesses, clothes worn by the victim Gomatiben and the accused persons were recovered in the presence of panchas. Necessary panchnamas were prepared in presence of panchas. Medical examination of Gomatiben and the appellants accused persons was conducted and the medical certificates were received by the police. After completion of the police investigation, the police filed charge-sheet in the Court of the Ld. Judicial Magistrate First Class, Deesa. As the offence was exclusive triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions. 2.2. The Ld. Trial Judge framed charge against the appellants accused persons as well as the co-accused persons at exh. 19. 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 appellants CR.A/674/2003 4/9 JUDGMENT accused wherein they generally denied all the allegations levelled against them and stated that they were falsely implicated in the case. The Ld. Trial Judge, after considering the evidence adduced by the prosecution and after hearing arguments advanced on behalf of both the parties, delivered the impugned judgment. As stated above, the present appellants who were original accused nos. 2, 4 and 5 came to be convicted for the offences punishable under sections 376 and 323 of the IPC and each of them was sentenced as stated hereinabove. Along with the appellants accused persons, the original accused no. 3 Dashrathbhai @ Dalpatbhai Raval was convicted for the offences punishable under sections 363 and 366 of the IPC. However, the appellants accused persons came to be acquitted for the offences punishable under sections 363 and 366 of the IPC. 3. On behalf of the appellants, learned advocate Mr. US Brahmbhatt and Mr. PB Goswami argued that the Ld. Trial Judge erred in convicting the appellants for the offences charged against them. That as a matter of fact, the first informant did not lodge the FIR immediately, but it was a delayed FIR. No explanation is forthcoming for the delay. That all the material witnesses turned hostile. That even considering the deposition of victim Gomatiben, no reliance can be placed upon her deposition. That as a matter of fact the prosecution miserably failed to prove that at the time of incident Gomatiben was aged about 12 years. That considering the medical evidence in form of ossification test, there is a clear medical opinion that Gomatiben was aged about 16 years of age. That 3 appellants accused were totally unknown to Gomatiben. No test identification parade was conducted. The evidence adduced by CR.A/674/2003 5/9 JUDGMENT Gomatiben regarding identification of the appellants for the first time during her deposition in the Court cannot be believed. The deposition of Gomatiben is full of material contradictions and improvements. Medical evidence does not support the theory of gang rape. That therefore, it is submitted that the appeals be allowed and the order of conviction recorded by the Ld. Trial Judge be set aside and the appellants be acquitted. 3.1. Ld. APP Mr. KC Shah for the State vehemently opposed these appeals and submitted that the Ld. Trial Judge rightly came to the conclusion that the prosecution successfully proved its case against the appellants. That there is no reason to discard the deposition of prosecutrix; that the prosecution proved beyond reasonable doubt that at the time of incident her age was 12 years. Thus, there was no question whatsoever about the consent. Even otherwise considering the deposition of prosecutrix, she was forcibly kidnapped and forceful intercourse was committed by each of the appellants. That the prosecution has explained the delay in lodging the FIR. That medical evidence regarding the sexual intercourse is cogent and clear. Therefore, it is submitted that the appeals be dismissed. 4. Considering the deposition of prosecutrix Gomatiben Babuji exh. 42, she does not state her exact age but she stated that she has 3 brothers and she is the eldest. All her 3 brothers are younger to her. Considering the depositions of her father Babuji exh. 38 and her mother Shardaben exh. 31, it transpires that their marriage took place before about 17 years from the date of incident. Over and above this, Gomatiben in her deposition stated that when she was at her maternal uncle's house at CR.A/674/2003 6/9 JUDGMENT village Katarva, she used to go to school. Exh. 40 is the school leaving certificate wherein her date of birth is shown to be 1/6/1986. In connection with school leaving certificate exh. 40, the prosecution examined witness Kamleshbhai Patel at exh. 39, who was serving as Head Master in the school. However, considering the medical evidence regarding ossification test, it is true that the medical evidence revealed that Gomatiben must be aged about 16 years or below that. Considering the overall evidence on record, we are of the opinion that the Ld. Trial Judge rightly came to the conclusion that at the time of offence Gomatiben was aged about 12 to 13 years and at any rate below 16 years of age. Therefore, considering the tendered age of Gomatiben, the question of Gomatiben being consenting party to the sexual intercourse does not arise. Even otherwise the question of consent is irrelevant when the appellants accused persons are facing charge of gang rape. 5. Considering the deposition of prosecutrix Gomatiben, it further transpires that the original accused nos. 1 and 3 took her to various places and they both committed rape and she was taken to the temple of Goddess Jasma at Patan. Gomatiben and both the co-accused stayed in the temple. According to the deposition of Gomatiben, during night hours the present appellants caused sexual intercourse with her. During the course of her deposition she identified the present appellants. She was cross- examined at length and searching cross-examination was made on behalf of the accused persons. Considering her entire cross-examination, nothing is revealed which would be any way helpful to the defence. 6. Gomatiben was medically examined by Dr. Sutaria. CR.A/674/2003 7/9 JUDGMENT Considering the deposition of Dr. Sutaria exh. 54 and the medical examination report exh. 56, it clearly transpires that Gomatiben gave history to the Medical Officer to the effect that she was taken away from Deesa to Sidhdhpur and Patan for 3 days and rape was committed by total 5 persons of and on. Doctor opined that forcible penetration of penis was suggestive of rape by more than one person recently and completely. That the age of victim is below 16 years. There was rupture of hymen. Thus, the medical evidence fully supported the case of the prosecution. It is further pertinent to note that prosecution examined Dr. Akediwala at exh. 44, who examined appellant accused persons Ramanbhai Sombhai and Amaratji Mansukhji and issued certificates exh. 45 and 46. As per the medical evidence on record, both the appellants were capable of performing the sexual act. Both of them gave history of coitus on 8/6/2001. So far as appellant accused – Hemant Mulshankar Raval is concerned, he was examined by Dr. Sutaria. Considering deposition of Dr. Sutaria exh. 54 and the medical certificate exh. 60, Medical Officer opined that he was capable to perform sexual intercourse. It further transpires that the appellant Hemant gave history to the Medical Officer that a girl named Gomati, daughter of Babuji was brought to Patan Sidhdheshwari temple by 2 persons and he did intercourse with girl twice. 6.1. Under such circumstances, considering the history given by the appellant accused persons to the Medical Officer which can be appreciated in evidence in form of extra judicial confession of accused persons before the Medical Officer, it clearly transpires that their involvement in the offence is successfully proved by the prosecution. Both the appellants Ramanbhai and Amaratji stated before the Medical CR.A/674/2003 8/9 JUDGMENT Officer having committed intercourse on 8/6/2001 and considering the history given by the appellant accused Hemant, he clearly stated that he committed sexual intercourse with victim Gomatiben twice. 7. The prosecution examined witness Kesharvan Mulvan Swami at exh. 41 and according to his deposition, he was performing his duty as priest in the temple of Goddess Jasma at Patan. That in the temple some renovation work was going on and the appellant accused Ramanbhai Sombhai was a mason, the appellants accused Amratji and Hemant were labourers. According to his deposition, two boys and one girl had come to the temple. However, it is true that this witness did not specifically refer those two boys and the girl by their names. But this witness in the Court identified the present appellants. Thus, considering the deposition of witness Kesharvan exh. 41, it becomes clear that at the time of occurrence, the appellants were present in the temple. 8. In the impugned judgment, the Ld. Trial Judge appreciated the evidence adduced by the prosecution and came to the conclusion that the prosecution successfully proved that at the time of occurrence prosecutrix Gomatiben was below 16 years of age. Relying upon medical evidence on record, the Ld. Trial Judge came to the conclusion that the prosecutrix was subjected to sexual intercourse by more than one person. Relying upon the history given by the appellants before the Medical Officer and the deposition of prosecutrix Gomatiben herself, the Ld. Trial Judge observed that the prosecution successfully proved the involvement of appellants in the offences. Ld. Trial Judge also observed that it is true that the incident occurred on 7/6/2001 and the First Information Report CR.A/674/2003 9/9 JUDGMENT was lodged before the police on 12/6/2001, but the prosecution has explained the delay. Considering the deposition of first informant Shardaben Babuji, who happens to be the mother of the prosecutrix, she clearly stated that her daughter Gomati was kidnapped on 7/6/2001 and thereafter her family members attempted to find out Gomati and even consulted Sarpanch of their village, but Gomati could not be traced out and when Gomati was found out and she was in the police station, they immediately went to police station and lodged the FIR. Under such circumstances, it cannot be said that the delay in lodgement of FIR can be said to be fatal to the case of the prosecution. 9. In light of the above discussions, we are of the considered opinion that the Ld. Trial Judge did not commit any illegality or irregularity in recording conviction of the appellants for the offences punishable under sections 376 and 323 read with section 114 of the IPC. We do not find that the Ld. Trial Judge erred in exercising his discretionary power while fixing the quantum of punishment. 10. For the foregoing reasons, all these three appeals deserve dismissal. The appeals, therefore, stand dismissed. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.