CR.A/457/2005 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 457 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ===================================================== 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 ? ===================================================== MEHUL @ MELO SHANABHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR PK SHUKLA for Appellant(s) : 1, MR BHATE, APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI CR.A/457/2005 2/14 JUDGMENT Date : 04/04/2008 ORAL JUDGMENT 1. The appellant is original accused. By impugned Judgment and order dated 5.12.2002 passed by learned Additional Sessions Judge, Bharuch, he was convicted for offence under Section 376 of IPC and sentenced to R.I. for seven years. He was also directed to pay fine of Rs.1,000/-. 2. As per charge Exh.3, it was alleged against appellant that on 18.03.2002 at 22.30 hours, prosecutrix had come out of her house to answer nature's call. At that time, the accused came there and pressed the mouth of the prosecutrix, took her to an isolated place nearby and had forcible intercourse with her. 3. PW-1, Dr.Nisha Chandra, Exh. 6 had carried out physical examination of the prosecutrix as well as the accused. She stated that the prosecutrix was bleeding from her private parts. She was complaining CR.A/457/2005 3/14 JUDGMENT of pain, her clothes were blood soiled, her hymen was ruptured. She found that the girl had bruises on her chest and on her back. She also found that blood had clotted on a wound on her back. So far as accused was concerned, the Doctor found presence of semen on his private part. She found a Lacerated wound on his left eye-brow of 1 cm x 2 cm., she found blood clotting on left thigh on an injury which was 2 X 1 cm. She found blood clotting in an area covering 5 cm. X 1.5 cm. on the back, on the left hand side. She also found similar blood clotting on the right hand side of the back covering area of 6 cm. X 1.5 cm. 3.1 In the cross-examination, she admitted that in the certificate that she issued, she had not recorded the history of the case. She admitted that she had recorded the age of the girl between 15 to 16 years on approximation and not on any scientific test. She stated that injuries on the back of the accused would not have been caused at the time of intercourse. CR.A/457/2005 4/14 JUDGMENT 4. The prosecutrix PW-2 was examined at Exh.11. She stated that she was born on 2nd February, 1986. She knew the accused. She identified him before the Court. She stated that on 18.3.2002, she had come out of her house at 10.30 night to answer nature's call. She had to cross 2 or 3 houses to reach the spot. When she reached there, accused came there, covered her face and carried her to a plot called “Chhagan Morarno Vado”. The accused had torn her clothes and thereafter, raped her. She went home crying and informed her parents about the incident. They thereupon went to the house of the Sarpanch and from there, they went to Police Station to lodge the complaint. 4.1 In the cross-examination, she admitted that there were series of houses in the neighborhood. Her uncle's house was next to her own house. Her uncle's house had doors on both sides. She stated that S.T.Bus-stand was also situated near her house. She admitted that to reach the place of “Chhagan Morarno Vado” one would have to cross open land, thereafter, S.T. Bus-stand and road adjacent to it. She admitted CR.A/457/2005 5/14 JUDGMENT that “Chhagan Morarno Vado” was located on a pakka road. She admitted that near the side of “Chhagan Morarno Vado” , there were other houses. 4.2 She also admitted that she knew the accused from childhood and had occasion to meet him while going out for filling water or washing clothes. She admitted that her family had quarrel with the mother of the accused. She admitted that mother of the accused had filed a police complaint. She, however, denied that she had fight with the accused. 4.3 She agreed that house at ”Chhagan Morarno Vado” remained locked. To prevent cattle from entering the Vada, that was a compound wall and open space was covered with thorns. To enter the Vada, one would have to carefully go over the thorns. 4.4 She denied that on 18th March, she and the accused both were beaten up. She denied that her brother Mahesh, Ramesh etc. had beaten her up and accused in “Chhagan Morarno Vado”. CR.A/457/2005 6/14 JUDGMENT 4.5 She, however, stated that the accused was caught from near her house and was taken to the Sarpanch. She stated that she was physically carried by the accused to “Chhagan Morarno Vado”. She had, however, not stated so before the Police. She admitted that being summer month, people were sitting outside their houses. She stated that accused had tried to remove the thorn at “Chhagan Morarno Vado”. At that time he was still carrying her. She agreed that the thorns could not have been removed without someone's help and without removing the thorns it was not possible to enter the Vada. 4.6 She admitted that in the Police Statement, she had not stated that the accused had torn her clothes or that he had committed rape and she had gone home crying. 5. PW-3, Dilipkumar Patel, Exh.14 was Teacher of Primary School at Mangrol where the prosecutrix had studied. He had produced the certificate of the school in which date of birth of the prosecutrix was CR.A/457/2005 7/14 JUDGMENT recorded as 2nd February, 1986. 6. Ramubhai Devjibhai- PW-4 Exh.17 is the father of the prosecutrix. He stated that the incident took place on 18.3.2002 when his daughter had at 10.30 at night gone out of her house. He heard her shout. She was crying, upon which he came out. Upon being asked, she told him that the accused had carried her and raped her. He thereupon informed the Sarpanch and thereafter, went to the Polcie Station to file complaint. 6.1 In the cross-examination, he admitted that Chanchalben, mother of the accused had a fight with his family members. He, however, denied that quarrel was regarding the relations between the accused and the prosecutrix. He admitted that Chanchalben had filed a Police complaint against him and other family members due to which he had strained relations with the accused. He admitted that he had taken the accused also to the house of the Sarpanch. He denied that on the date of the incident accused as well as CR.A/457/2005 8/14 JUDGMENT prosecutrix were beaten up. He admitted that in his Police statement, he had not stated that after sometime, his daughter shouted, upon which, he and his wife came out from the house and upon being asked why she was crying, they were told by their daughter that she had been raped by the accused. 7. Panchnama of the scene of the offence was produced at Exh.19, which was proved through the evidence of the Panch-witness Subhash Budhiyabhai PW- 5 Exh.18. In the Panchnama it is recorded that behind the house of the prosecutrix on the western side there is a by-lane thereafter, there is compound wall of Chhaganbhai Morarbhai Parmar from there the wall proceeds towards southern side for about 200 Ft. Thereafter, it turns towards East and West road 100 Ft. from there touching a road, there is a plot of “Chhagan Morarno Vado” where there is a toilet in locked condition. To the south of this toilet the scene of the incident is situated. It is recorded that the house of the prosecutrix is at a distance of about 300 Ft. from the place of the incident. CR.A/457/2005 9/14 JUDGMENT 8. PW-7, PSI Nandkishore was examined at Exh.28. He had carried out the investigation and filed charge-sheet. 8.1 In the cross-examination, he admitted that in the neighbourhood of the house of the prosecutrix there were several other residential houses. He denied that he had not recorded statements of the residents of such houses. He stated that he had taken statements of several people. However, they were not cited as a witnesses in the charge-sheet since such witnesses did not support the prosecution. 9. On the basis of the above evidence, the prosecution sought to prove the charge. 10. Having heard learned advocates appearing for the parties and having perused the evidence on record, I find that there are large number of contradictions and improbabilities in the evidence of the prosecution witness. CR.A/457/2005 10/14 JUDGMENT 11. Firstly, the prosecutrix PW-2 Exh.11 stated that the appellant had covered her face and carried her to “Chhagan Morarno Vado” and thereafter raped her. In the panchnama Exh.19 it has come on record that the house of the prosecutrix was at a distance of 300 Ft. from “Chhagan Morarno Vado”. In the evidence of prosecutrix herself it has been stated that there were several residential houses in the locality. In fact even S.T. Bus-stand was situated nearby. She also stated that being a summer month, people were sitting outside their houses when the incident took place. 12. The prosecutrix in the cross-examination admitted that thorny bushes were laid to protect the plot (“Chhagan Morarno Vado”) against entry of cattle. Prosecutrix state that such thorns were removed by the accused while taking her inside the Vada. She also agreed that it was not possible to remove the throns without someone else's help and it was not also possible to enter without removing thorns. CR.A/457/2005 11/14 JUDGMENT 13. As per the version given by the prosecutrix therefore accused carried her physically for nearly 300 Ft., removing thorns to gain an access into the plot and thereafter raped the girl by removing her clothes all the while covering her face with one hand. Though, large number of people were sitting outside their houses, at that time, no one noticed the accused carrying prosecutrix. 14. The entire version is highly improbable. The statement of the prosecutrix that she was carried to “Chhagan Morarno Vado”, (it was situated 300 Ft. from her house) her face was covered all this while, and that the accused removed the thorny bushes to enter the Vada while still carrying her and covering the face with one hand is simply not possible to believe particularly when she admitted that at that time, number of people were sitting outside their houses. 15. Additionally, I also find that both, the accused as well as prosecutrix were carrrying multiple injuries as stated by PW-1 Dr. Nisha Chandra CR.A/457/2005 12/14 JUDGMENT who examined them on 19th March, 2002. The injuries on the accused have not been explained. In-fact, Dr. Nisha Chandra PW-1 clearly stated that injuries on the back bore of the accused could not have been caused during the course of the intercourse. 16. This further probabalizes the theory of defence that the accused as well as prosecutrix were invovled with each other and that both of them were severally beaten up immediately after the incident came to light. I further find that the Investigating Officer admitted that there were large number of other people residing in the same locality. He had recorded statements of several such people.No such independent witness was examined since no one supported prosecution. 17. The entire picture one therefore gets from the above discussion is that on one hand the version given by the prosecutrix about being carried physically for a distance of 300 ft., being taken to Vada after removing throne bushes and all the while CR.A/457/2005 13/14 JUDGMENT covering the face and though large number of people were outside their house at that time, no one noticed any usual occurrence is not possible to believe. On the other hand, the injuries on the prosecutrix as well as the accused noticed by the Doctor do not match the discription of the incident given by the prosecurtirx. She has nowhere stated that she received the injuries or that while trying to prevent the accused from committing rape, she caused any injuries to him. Dr.Nisha Chandra clearly opined that the injuries of the accused on his back would not be as a result of the forcible intercourse. Further, as noted, the I.O. could not find a single independent witness to corroborate the version of the prosecutrix. In fact all the statements of the residents recorded did not support prosecution. Interestingly, I.O. stated that he had also recorded the statement of Sarpanch but could not explain why Sarpanch was not examined as a witness. 18. The defence version all through out has been that there was an affair between the appellant- accused and the prosecutrix. It was also suggested CR.A/457/2005 14/14 JUDGMENT that this was not approved by the father of the prosecutrix. Though, the suggestion was denied by the witnesses, they agreed that there was a quarrel between the mother of the accused and the family of the prosecutrix leading to police complaint being filed. There were number of contradictions in the form of improvements made by the witnesse which they had also admitted to, as already noted earlier. 19. Considering all these aspects of the matter, I find that learned Judge committed an error in convicting the appellant for offence under Section 376 of IPC. Conviction and sentence is therefore set aside. Appeal succeeds and disposed of accordingly. Appellant, if not required in any other case, to be set free forthwith. Fine, if any paid, be refunded. (AKIL KURESHI, J.) ashish//