IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 731 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE R.P.DHOLAKIA and HON'BLE MR. JUSTICE ANANT S DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MANJIBHAI VALJIBHAI GAMECHA VAGHARI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 731 of 2000 MR RE VARIAVA for Appellant No. Mr. N.D. Gohil, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA and HON'BLE MR. JUSTICE ANANT S DAVE Date of decision: 21/04/2005 C.A.V. JUDGEMENT (Per : HON'BLE MR. JUSTICE ANANT S DAVE) 1. This appeal under Section 378 of the Code of Criminal Procedure is filed by the convict-appellant against the judgment and order dated 6th June 2000 passed by the learned Sessions Judge, Surendranagar, in Sessions Case No.47 of 1999, convicting the appellant [original accused] of the offence punishable under Sections 363, 376, and 392 of the Indian Penal Code, and sentencing to undergo R.I. for ten years and fine of Rs.3000, in default, S.I. for six months for offence punishable under Section 376 of the Indian Penal Code, R.I. for five years and fine of Rs.1000, in default, S.I. for two months for offence punishable under Section 363 of the Indian Penal Code, R.I. for five years and fine of Rs.1000, in default, S.I. for two months for offence punishable under Section 392 of the Indian Penal Code. All the sentences are ordered in run concurrently. 2. It is the case of the prosecution that the complainant, Dahyaben, wife of Bhikhubhai Takubhai Rajgor-Mehta, was residing with her family members at the residential quarters of Animal Husbandry Department at Chotila. She had two daughters and one son. The victim was the eldest daughter in the family. As per the case of the prosecution, on 25th April 1999, in the evening at about 16.00 hrs., the victim had gone along with her younger brother to play near Dargah, adjoining Vishal Quarters, under the shadow of tree, and when they both did not return home in time, the complainant had gone to enquire and she found her son, Vishal, alone, but the victim was not found available at the said place and enquired from her son about the victim and he informed that she had gone towards the road. Therefore, the complainant had informed her husband and, thereafter, both, the husband and the wife, had gone in search of the victim, but the victim was not traceable. At about 21.45 hrs, the victim returned home and was crying. After consoling her, the complainant enquired from her and she disclosed that, when she was playing near the Dargah under shadow of the tree, a person wearing block clothes had come to her and allured her by saying that he would give her tamarind and took her along with him in the farm and, thereafter, committed rape on her. The victim started crying. The said person had compelled the victim to lie down and raped her. Since it was dark, the victim persisted to go back home and the accused had removed the ear-ring of the victim and thereafter dropped the victim near road. At that time, the victim was frightened and, therefore, no further enquiry was made by the complainant. However, when the complainant saw that there was bleeding on the private parts of the victim, she informed her husband. At about 23.15 hrs, in the night, a complaint was lodged at Chotila Police Station, which was registered as First Information Report C.R. No.I-64 of 1990 for the offences punishable under Sections 363, 376 and 392 of the Indian Penal Code. The investigation was conducted by PSI, Mr. K.C. Dave, of Chotila Police Station. During the course of investigation, the PSI recorded statements of persons. The victim was sent for treatment to the hospital at Limbdi and a panchanama was drawn about the condition of her body. The statement of the victim was also recorded. The panchanama of scene of offence of dog-squad was also drawn. The clothes worn by the victim were also recovered. Thereafter, the accused was arrested and sent for medical examination. The muddamal were sent for analysis to the FSL and, after obtaining the medical certificate and FSL report, a charge-sheet was filed in the Court of the learned Judicial Magistrate, First Class, Chotila, for the offences punishable under Sections 363, 376 and 392 of the Indian Penal Code, which was registered as Criminal Case No.615 of 1999. As the offence punishable under Section 376 of the Indian Penal Code was triable by the Sessions Court, the learned Magistrate, by order dated 15th July 1999, committed the case to the Sessions Court, Surendranagar, for trial, where it was numbered as Sessions Case No.47 of 1999. 3. The learned Judge had framed charge against the respondent of the offences punishable under Sections 376, 63 and 392 of the Indian Penal Code. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. 4. In order to prove its case against the respondent, the prosecution had examined 21 witnesses at the trial, and about 20 documents were produced in support of its case against the respondent. 5. The learned Public Prosecutor had submitted before the trial court about 13 documents and examined a number of witnesses. After recording of evidence of prosecution witnesses was over, the learned Judge had explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statements as required by Section 313 of the Code of Criminal Procedure. In his further statement, the appellant denied the charge framed against him. 6. Thereafter, learned advocates of both the parties were heard by the learned Additional Sessions Judge, Vadodara. The learned Judge has, elaborately, dealt with the documentary evidence as well as oral evidence in the form of depositions and, on relying upon the medical evidence, statements of the witnesses, identification of the accused by the victim twice, and other materials on record in the form of panchanama and after discussing the same with reasoning, come to the conclusion that the prosecution has established the offence against the appellant. In view of the abovereferred to conclusion, the learned Judge has convicted the appellant, as stated in paragraph 1 of this judgment. The appellant-accused, feeling aggrieved by the same, filed the present appeal. 7. Heard learned advocates for the parties. 8. Learned advocate for the appellant has contended that the circumstance of identification of the accused by the prosecutrix during the identification parade was not a clinching piece of evidence pointing towards the guilt of the accused. According to the learned advocate for the appellant, identification parade of the accused was carried out by the Executing Magistrate on 29.4.1999, whereas the alleged incident occurred on 25th April 1999 and on the basis of the identification parade, it is believed that the prosecutrix has identified the present appellant as accused person. According to the learned advocate for the appellant, the trial judge has lost sight of the very important piece of evidence that the identification parade was worthless when, in cross examination of the prosecutrix, she admitted that exactly on the next day of the day of incident, the accused was brought by the police to the house of the prosecutrix. Therefore, such identification parade had no value in the form of evidence. The learned advocate for the appellant has further submitted that the learned trial judge has erred in relying upon the evidence of a tracker dog which is said to have sat down near the house of the accused after smelling of foot-prints sleeper left behind in the farm, i.e. the place of incident. He has further submitted that the evidence of prosecutrix, who can be said to be a child witness, ought not to have been believed as a gospel truth and her evidence was not reliable and it was possible that the victim-child was prone to tutoring and, therefore, untrustworthy and unreliable. The learned advocate for the appellant has further submitted that there were contradictions in the depositions of the father and the mother of the prosecutrix and the learned trial judge has erred in relying upon the statement made by the accused before P.W.13, Dr. Ghanshyambhai Chaturbhai Motka, Exh.25, at the time when the accused was subjected to the medical examination after arrest by the police. According to the learned advocate for the appellant, there was no corroborating evidence so far as the version of the prosecutrix and medical evidence is concerned so as to prove the offence against the appellant. Therefore, the conviction recorded by the learned trial judge is required to be quashed and set aside and appropriate direction should be given to set at liberty the appellant forthwith. 9. Mr. N.D.Gohil, learned Additional Public Prosecutor, argued that the medical evidence clearly shows the victim was brutally offended and a rape was committed on her. The medical certificate Exh.14, dated 26.4.1999, issued by the Medical Officer of the Hospital at Limbdi, mentions about blood discharge at external genital and the internal examination of body shows abrasion of labia minora and hymen torn. It also mentions vaginal penetration. Not only that, but the evidence of P.W.5, Dr.Ramprakash Gupta, Exh.12, and P.W.14. Dineshkumar G. Patel, Exh.27, clearly show that the rape was committed on the victim. Even the body panchanama of the victim, which was prepared by one Rekhahbai, panch witness, also supports the case of the prosecution. According to Mr. N.D. Gohil, the FSL report at Exh.47 and report of the serologist at Exh.48, clearly establish that the rape was committed on the victim. The birth certificate of the victim, as submitted by the School Authority, and as per the deposition of the Principal of the school, P.W.15, Pravinchandra Amrutlal Exh.30, mentions about the date of birth of the victim as 14.3.1993, at Exh.29. Thus, the age of the victim was about six years at the time of incident. The medical report of P.W.13, Dr. Ghanshyambhai Chaturbhai Motka, Exh.25, who had examined the accused, clearly suggests that the accused was capable of indulging in successful inter-course as a healthy person and even in his deposition, the said Doctor has confirmed the report. According to Mr. N.D. Gohil, there was no lacuna in the identification parade and, on the contrary, the victim identified the accused twice and proper procedure was followed by the Executive Magistrate, and, even assuming that some minor discrepancy had occurred in carrying out the identification parade, such discrepancy would not be fatal to the prosecution case. Learned APP, Mr. N.D.Gohil has further submitted that the victim had also identified the accused in the Court; the tracker dog had identified the accused and the panch witnesses have supported the said procedure followed by the police and the accused was apprehended within no time. It is, therefore, submitted by the learned APP that the present appeal filed by the appellant should not be entertained by the Court, and the conviction of the trial court deserves to be confirmed by this Court. 10. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to broad and reasonable probabilities of the case. 11. P.W.1, Dakshaben, Exh.8, complainant herein, stated in her deposition that her daughter-victim, aged six years, was allured by the accused and, ultimately, the accused had committed rape on her. In her deposition, she had adhered to what is stated by her in the complaint, and supported the case of the prosecution. She was the person who had seen the victim bleeding in her private parts and taken her to the hospital where also she was examined by the Doctors in-charge and it was found that her hymen was torn and the rape was committed on her. P.W.2, Bhikhabhai, Exh.4, the father of the victim, has also disposed on similar line and supported the case of the prosecution. P.W.3, Ketanbhai Bhupenbhai, Exh.10, panch of discovery panchanama Exh.52 of ear-ring which the accused had taken away from the victim on 25.4.1999 when he had committed the rape, also supported the case of the prosecution. One of the important witnesses, P.W.5, Dr. Ramprakash Ramsevak Gupta, Exh.12, in his deposition, stated that he was on duty on 26th April 1999 at R.R. Hospital, Limbdi and at about 1.45 a.m. a girl of six years old was brought along with police yadi for examination and, on examination, he found that the rape was committed on the said girl and he had given certificate Exh.14 to that effect. In cross examination, he denied that injury on the private parts could be caused by any blunt object. He also denied that such injury might happen during a quarrel. 12. Reliance was placed by the learned trial judge on the deposition of P.W.6, the victim, which is recorded at Exh.15 in camera as per the requirement of provisions of Section 327 of the Code of Criminal Procedure. 13. As the case depends on the testimony of the child witness, it would be relevant to notice the law relating to appreciation of evidence of a child witness. When a young child is a witness, the first step for the judge to take is to satisfy himself that the child is a competent witness within the meaning of Section 118 of the Indian Evidence Act,1872. It is the duty of the Court to ascertain in the best way which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he/she had seen, heard or done at a particular occasion or in other words the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the Court thereof. If the witness is found to be incapable of understanding the obligations of an oath or affirmation, he may be examined without an oath or affirmation, provided he is found to be a competent witness. The Supreme Court, in Rameshwar Kalyan Singh vs. State of Rajasthan, AIR 1952 Supreme Court 54, has ruled that, it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. Whether the Magistrate or judge really was of that opinion can, however, be gathered from the circumstances when there is no formal certificate. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. The difficulty with child witnesses often is that they can be made to believe in things which they themselves have not seen, and this belief when it gets hold of a child witness, is difficult to shake. If it is found that there was possibility of any tutoring, the court will not, as a rule of prudence, convict the accused on a murder charge on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence, because a child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. Child is less prone to manipulation, motivation, and spirit of vendetta. The version of a child witness can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what is seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. All that as required in considering the evidence of a child witness is scanning it carefully and if after doing so, no flaws or infirmities are found, there is no impediment in accepting the child's evidence. 14. The child victim deposed that, while she was playing near Dargah, in the late evening, the accused, who is present in the court, took her to the farm. She deposed that, on the date of incident, he had put on the black clothes. She deposed that the accused removed her clothes and committed the rape, and she was bleeding, and her clothes were also blood-stained. Thereafter, the accused removed her ear-rings. He again repeated the brutal incident and dropped her on the road near her home. On reaching the home, she informed the incident to her father. Thereafter, she was taken to Limbdi Hospital. She identified the accused in the T.I. parade. She also identified muddamal article No.5, frock and muddamal article no.6, nicker and confirmed that these were the clothes which she had put on at the time of the incident. She identified the ear-ring, muddamal article no.2, worn by her on the day of incident. She also identified muddamal article Nos.7 and 8 the clothes put on the accused. In cross examination also, the child witness has not deterred and reiterated what is stated in the examination-in-chief. She denied that there was quarrel with other children and she also denied that she was in the habit of going to the farm for any other purpose. She denied that the accused had not taken her. She denied that the ear-rings were not removed by the accused. She denied that the accused had not removed her clothes. She denied that the accused had not overpowered her. She denied that the injury caused to her was due to quarrel with other children or due to a fall. 15. P.W.8, Rekhabhen, Exh.17, panch witness of panchanama of body condition of the victim at Exh.40, has stated that she found a girl lying on the cot at the hospital and found stain of blood on her nicker and bleeding on her private part. She identified muddamal article Nos. 5 and 6, namely, frock and nicker worn by the victim. In her cross examination, she denied that she had signed on the prepared panchanama. She denied that she deposed to favour the victim because she is from the same village of the complainant. The prosecution has also examined other panch witnesses of scene of offence. P.W.9, Kishore Janmashanker Shukla, Exh.18, panch witness of dog squad panchanama Exh.42, has stated that the police had taken sample from the scene of offence. He stated that the procedure of dog-squad was seen by him and tracker dog was shown and smelt the print of sleeper and the tracker dog stopped near the residence of the accused and the dog also tracked the house of the accused. There also, a panchanama was drawn. He denied in cross examination that he signed below the prepared panchanama. He denied that the victim had not shown the place of offence. He denied that the dog-squad did not track the residence of the accused. The prosecution has also examined P.W.11, Seerajbhai Badruddin, Exh.20, who is panch witness of arrest panchanama Exh.50. He stated that the sample was drawn and collected by the Doctor which was handed over to the police station by the police constable, Nareshchandra Mere by panchanama Exh.37 and he also identified the accused who was present in the Court. P.W.12, Janmohamad Ibrahimbhai, Exh.21, panch witness of clothes of the accused seized by the police by panchanama Exh.51, stated that the accused is the same person who was present in the Court, and who was present in the police station in the night about 9 to 10 o' clock on 27.4.1999. He also identified muddamal article No.7, bush-shirt, muddamal article No.8, pant, and muddmal article No.9, knicker, put on by the accused. P.W.3, Dr. Ghanshyam, Exh.25, who had examined the accused and conducted ocliography, found that the accused was about 22-25 years as per the report of the X-ray, and was healthy enough to indulge into inter-course. 16. P.W.14, Dr. Dineshkumar Govindbhai Patel, Exh.27, incharge Gynecologist, R.R. Hospital, Limbdi, who was performing his duty on 26.4.1999, had examined the victim and has confirmed the medical certificate Exh.14 and stated that the injuries were of rape committed on the victim. However, in cross examination, he admitted the suggestion that, in a given case, such injury on the private part can be caused by a sharp weapon or a wooden piece. 17. There is no dispute about the age of the victim being six years and the same was confirmed by the Principal of her school. P.W.15, Umiyashanker Mulishanker, Exh.28, supported the school register where the birth date of the victim was mentioned as 14.3.1993. 18. The important aspect of connecting the appellant with the crime is disclosed in the identification test parade and deposition of P.W.17, Chhabilbhai Ramjibhai, Exh.32, panch of T.I. parade panchanama. He stated that he was called by the peon of Mamlatdar on 29.4.1999 and the Executive Magistrate had explained about identification test parade and, thereafter, eight to ten persons were called in the chamber and another peon brought the person who was to be identified and the Executive Magistrate had asked whether he wanted to change the clothes, etc. to which, the accused said 'no'. Even the said person was offered an option to stand at a particular place in the line along with other persons, and, when the victim was brought and told by the Executive Magistrate to identify the accused-person, the victim identified the appellant as accused. Thereafter, similar procedure was followed and the accused was asked to change number in the line and, once again, he was identified by the victim. P.W.17, Chhabilbhai Ramjibhai, denied that the parents of the victim were present when the test identification parade was held. He also denied that there was a glass-window room where the test identification parade was held. P.W.18, Natwarlal Khodidas, Exh.33, stated about presence of 8 to 10 person and the procedure followed by the Executive Magistrate. The accused was given choice of number where he was willing to stand in the line and he stood at Sr. No.5 in the line and, thereafter, the victim identified the person as accused who stood at Sr. No.5 by pointing a finger towards him, and, thereafter, again, the victim was sent outside the room and the accused was once again asked to change the clothes but he refused to the same and he again stood at Sr. No.4 and, thereafter, the victim was brought and asked to identify and the victim identified the accused at Sr. No.4. Therefore, on two occasions, the accused was identified by the victim. Even, the medical evidence clearly establishes the case of the prosecution and there is no grievance made by the learned advocate for the appellant, nor any discrepancy is pointed out by the learned advocate for the appellant. 19. In the above-mentioned circumstances, the appreciation of evidence by the learned trial judge and findings with regard to the deposition of the child victim, cannot be said to be contrary to the principles laid down