IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 374 of 2000 with CRIMINAL APPEAL No 582 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 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? -------------------------------------------------------------- KISHOR KOTUMAL VANJANI SINDHI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 374 of 2000 MR LM CHHABLANI for the appellant. MR ND GOHIL, APP, for the Respondent. 2. Criminal Appeal No. 582 of 2000 MR ND GOHIL, APP, for the appellant. MR LM CHHABLANI for the respondent. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE A.L.DAVE Date of decision: 23/12/2003 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of a judgment and order rendered by learned Additional City Sessions Judge, Court No.7, Ahmedabad, in Sessions Case No.343 of 1998, on 23rd March, 2000, convicting Kishore Kotumal Vanjani Sindhi for offences punishable under Sections 376, 306 and 452 of the Indian Penal Code. The convict was sentenced to rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2000/-, in default, to undergo further rigorous imprisonment for a period of three months for offence punishable under Section 376 of I.P.C. Identical punishment was inflicted for offence punishable under Section 306 of I.P.C. The convict was ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/-, in default, to undergo further rigorous imprisonment for a period of 15 days for offence punishable under Section 452 of I.P.C. It was ordered that the substantive sentences shall run concurrently. 2. Aggrieved by the said judgment and order, the convict has preferred Criminal Appeal No.374 of 2000 on various grounds, whereas the State has preferred Criminal Appeal No.582 of 2000, for enhancement of sentence. 3. The facts of the case, in brief, can be stated thus: 3.1 Complainant-Nilesh Dattatrey Sawant of Kailashnagar, Near Rashtra Bharti Hindi School, Hatkeshwar, Amraiwadi, Ahmedabad, is engaged in goods rickshaw driving. He was married to Anjana alias Anju and from the wedlock, they had two children, namely, Trupti and Amit. The complainant has a brother, named Dinesh. His father is Dattatrey T. Sawant and their houses are located nearby each others' house. On 26th April, 1998, as per the say of the prosecution, the complainant started with his goods rickshaw for his daily routine work in the morning around 9.00 - 9.30, while his wife was at home. After some time, father of the complainant-Dattatrey came to the house of the complainant in a routine manner for a cup of tea, was there for some time and, on being told by the wife of the complainant, i.e. Anju, that he was required by her mother-in-law at the house of Dinesh, he left for Dinesh's house. After he reached Dinesh's house, son of the complainant came to him after some time and informed that his mother-Anju has gone to purchase vegetables. After some time, a need for kerosene arose in the house of Dinesh and his mother went to the house of her other son-Nilesh for kerosene. Within a short while, she came back and informed Dattatrey that Anju is not at her house and that there are writings on the wall requesting "Anna", mother of the complainant to take care of the children and Kishore Sindhi and two persons had come and raped her and that she is going to jump into Kankaria. Dattatrey and others, therefore, went to the house of complainant-Nilesh, saw the writing and then went to the house of Anju's parents to intimate them about the incident. Anju's father came after about an hour and said that inquiry (search) has to be made. Dattatrey informed Dinesh about the incident who, in turn, went to inform the complainant-Nilesh, ordinarily, plying his rickshaw at Narol Chowkdi. The complainant, therefore, started off for home, enroute visiting Kankaria and houses of other relatives. After reaching home, he also saw the writing on the wall and then went to lodge a complaint. The police, however, refused to register a complaint asking him to wait for some time and if the lady is not found, a complaint would be registered. 3.2 Parallel to this, at around 10.30 A.M., one Babu Arjan, who works on a Pav Bhaji stall near Kankaria, noticed a lady in the waters of Kankaria. He, therefore, removed the lady from the water and took her to L.G. Hospital, at Maninagar, for treatment. It is the case of the prosecution that, treatment was given to her, but in vain and the lady, ultimately, died. The dead body was sent for postmortem. In the meantime, the complainant was successful in getting the complaint registered and, on receiving this information about the lady having been found from Kankaria, identification was got done and it was found that the dead body was that of Anjana alias Anju. On basis of the F.I.R., offence was registered, investigation made and charge sheet filed. 3.3 The father of the deceased lodged a private complaint for offence punishable under Section 306 of I.P.C. against the complainant, alleging ill-treatment at the hands of the complainant to the deceased-Anju, forcing her into commission of suicide. 3.4 Both the cases were registered as Sessions Cases and were tried by the same learned Judge and decided on the same day, though by different judgments. 3.5 In the case against Kishore Sindhi, charge was framed at Ex.2 and he pleaded not guilty to the charge. The Trial Court, after considering the evidence on record, concluded that the prosecution was successful in establishing the charges against him and recorded the conviction and sentence, as stated above, which has given rise to these appeals. 3.6 So far as the case against the complainant on basis of the complaint by the father of the deceased, the accused, i.e. the present complainant, came to be acquitted by the Trial Court. That judgment and order is not challenged and has attained finality. 4. We have heard learned Advocate, Mr. Chhablani, for the accused in both the appeals as well as learned Additional Public Prosecutor, Mr. Gohil, for the State. 5. Learned Advocate, Mr. Chhablani, has taken us through the record and proceedings and has raised the following contentions :- (1) There is delay in lodging of F.I.R. of about 15 hours. (2) The writing on the wall cannot be considered as a dying declaration. Even if it is considered as a dying declaration, it is not a writing by the deceased herself. (3) The opinion of the handwriting expert is not correct and genuine. He has gone to the place without any Yadi from the Investigating Officer and, therefore, he is an interested witness and his version cannot be accepted. (4) There is no positive evidence as to gang rape. There are no external injuries. The bangles are more or less intact and that the accused has not been medically examined. He submitted that, added to these factors is the fact that no semen stains were found. (5) It is contended that, postmortem was performed between 6.00 P.M. and 7.00 P.M. in the evening of the day of incident. It is a matter on record that the dead body was identified at a much later point of time around midnight and despite this, the postmortem notes contained name of the deceased. It is, therefore, contended that the investigation is doubtful. (6) Important witnesses are not examined by the prosecution. He submitted that the parents and children of the deceased are not examined as witnesses. Only the in-laws of the deceased have been examined. No independent witness from neighbourhood has been examined. The witness, Babu Arjan, who took out the deceased from Kankaria lake, has also not been examined. The doctor, who first treated the deceased the deceased at the L.G. Hospital has also not been examined. Non-examination of these witnesses by the prosecution would reflect that the prosecution is keeping back some material which may not be favourable to the prosecution and, therefore, an adverse inference may be drawn. (7) It is contended that the F.S.L. report is not against the accused as far as rape is concerned. (8) Mr. Chhablani submitted that, if the evidence is closely seen, the offence could not have been committed at the time and in the manner it is alleged. He has taken us through the deposition of P.W.1-Nilesh Sawant, P.W.2-Dattatrey Sawant and P.W.5-Dinesh Sawant to indicate that around the time when the offence is alleged to have taken place, there must be somebody with the deceased from the family and, in that eventuality, the story of rape is only a concoction. (9) It is contended that the accused is made a scapegoat of a conspiracy of the complainant's side. The only attempt is to rope in the accused, which is reflected even from the writing on the wall. Mr. Chhablani placed reliance on certain decisions of the Apex Court as well as other High Courts and submitted that the case against the appellant cannot be said to have been established beyond reasonable doubt. The benefit ought to have been given to the accused. (10) Learned Advocate, Mr. Chhablani, submitted that, so far as the appeal by the State is concerned, there is no substance. The accused has been inflicted with the highest punishment prescribed by law. The order of sentence passed by the Trial Court is reasoned one and there is nothing to indicate that the Trial Court has acted arbitrarily or that the discretion is not used properly. Mr. Chhablani, therefore, submitted that the appeal by the accused may be allowed and the appeal by the State may be dismissed. 6. Learned Additional Public Prosecutor, Mr. Gohil, has opposed the appeal by the accused. He submitted that a gruesome incident had occurred and there is ample evidence to implicate the accused. He submitted that the accused is known to the family of the complainant and was in the habit of making passes at the deceased, of which she had complained to her father-in-law. This fact emerges from the evidence of father-in-law, Dattatrey, as well as brother-in-law, Dinesh, of the deceased and has remained uncontroverted and unchallenged. The writings on the wall indicate that the accused along with others suddenly entered the house and ravished the deceased. The deceased was in a very bad state of mind because of post-rape trauma and in that only, she committed suicide. Her conduct is natural. She has done what she had written on the wall. She has written on the wall requesting Anna to take care of her children and sends her son to the house of Dinesh and then she leaves the house and jumps into Kankaria to commit suicide. She is rescued from Kankaria lake. She, in terms, implicated the accused of the charge of rape and has indicated that she is jumping into Kankaria lake. Therefore, Mr. Gohil, submitted that, it is true that there is some discrepancy in the timing aspect emerging from evidence of prosecution witnesses, but is not such as to render the depositions unreliable. Mr. Gohil submitted that there is medical evidence to support the case of the victim-Anju and that neither the deceased nor the doctor had any reason to falsely implicate the accused. Mr. Gohil submitted that, non-examination of witnesses will not affect the prosecution case for the simple reason that the evidence already on record does not stand abrogated thereby. The fact remains that, after writing on the wall, the deceased jumped into Kankaria and committed suicide. The fact also remains that, by way of the writings on the wall, the deceased had implicated the accused. Mr. Gohil submitted that the father of the deceased had lodged a private complaint, on the basis of which a Sessions Case was registered, wherein the complainant is alleged to have acted cruelly with the deceased and to have abated the commission of suicide. But, in that case, the accused persons have been acquitted. That order has attained finality as no appeal is preferred against it. In other words, according to Mr. Gohil, there is a verdict of the competent Criminal Court not accepting, as true, the allegations against the complainant and other persons, the accused therein. This would rule out the possibility of the writing on the wall being made subsequently. Mr. Gohil submitted that none of the contentions raised by the learned Advocate for the accused can help the accused. He, therefore, submitted that the appeal by the accused may be dismissed. 6.1 So far as the appeal by the State is concerned, Mr. Gohil submitted that here is a case where the accused is involved in two serious offences. He has committed rape on a young married lady, causing her to commit suicide and, therefore, no sympathy could have been shown by the Trial Court nor there is any need to show sympathy towards the accused. Mr. Gohil submitted, therefore, that the appeal by the accused may be dismissed and the State's appeal may be allowed. 7. We have given a thoughtful consideration to the contentions raised before us by both the sides in light of the evidence on record. 8. P.W.1-Nilesh Dattatrey Sawant (Ex.8) is the complainant, who was the husband of the deceased. He says that he was staying at Kailashnagar around the time when the incident occurred. His parents were staying in Bhagwatinagar. He was earlier staying in that very house with the parents, but he had shifted to Kailashnagar before some time. It transpires that both Kailashnagar and Bhagwatinagar are located near Hatkeshwar Temple in Amraiwadi area. The witness says that, he knows accused-Kishore Sindhi. 8.1 On 26th April, 1998, the complainant left the house along with his loading rickshaw around 9.30 A.M. Wen he reached with the rickshaw around 2.00 P.M., at Narol, his brother-Dinesh came and told him that his wife is not in the house and that name of Kishore Sindhi is written on the wall. Therefore, he left with the tempo and went to his house after taking a round of Kankaria lake. On reaching home, he found that his sister-in-law (wife's sister) was standing outside the house. He entered the house and found a writing on the wall, which can be translated in English thus: "Kishore Sindhi and two Goonda like persons raped me gagging my mouth after suddenly entering into the house and they went away. Prosecute Kishore Sindhi - Anju" On the side of the wall, it was written "I am going to jump into Kankaria". On the other wall, it was written "Aye and Anna, Take care of Trupti and Amit, Bhau, take care of Trupti and Amit". According to this witness, the writings were in the hands of his wife, which he could identify. He says that the colour of the wall was white and the writing was with coal. He says that, after reading this, he immediately went to his in-law's house just to inquire if, by chance, his wife is there, but she was not there and the in-laws were scared. He says that he told his father-in-law that this is a police case and he is going to prosecute. His in-laws told him not to go for police case. Whatever has happened has happened. However, he went to Amraiwadi Police Station, but his complaint was not recorded. Thereafter, he went to his brother-in-law, Vijaykumar's house, but he did not find Anju there. Then he went to Bhagwatinagar, where also he did not find Anju. By that time, it was 10.30 P.M. He, therefore, went to his in-law's house, where his brother-in-law (wife's brother), Manish, who had then come from Civil Hospital told him that Anju is no more. The witness told Manish that this may not be so and Manish told the witness that he had himself seen with his eyes and that Manish's father is at Kagdapith Police Station and has called everybody (from the family). The witness says that, then he went to the Police Station, where his complaint was recorded. He identifies the muddamal articles No.8, 9 and 10, which the clothes of the deceased. He identifies the handwriting of his wife on the post card, inland letter, Dipavali Card, etc. and states that the handwritings are of his wife-Anju on those documents. He identified the ear rings, bangles, etc. as that of his wife. 8.2 The witness has been cross-examined. He says that, on 26th April, 1998, when he went out, he took the rickshaw by a circuitous route. He says that he cleans his rickshaw before leaving for work. He says that, if somebody known meets him on the way, he waves at him. On that day, he did not find any person till he reached the main road. He learnt about his wife, for the first time, around 2.00 to 2.30 P.M. on the 26th, through his brother. His brother had also told him about the writings on the wall regarding Kishore Sindhi. He says that he was scared when he leart that his wife had gone to jump into Kankaria. He has been put many questions regarding his movement after his having come to know about the missing of his wife from the house. He denies the suggestion that his relationship with the deceased were not good and that he use to quarrel with her and use to beat her and ill-treat her. However, he was candid enough to admit that, at times, there were petty quarrels. He denies that, on 25th April, 1998, he had quarrelled with his wife and had beaten her. He also denies that neighbours had gathered and cooled him down on that occasion. He also denies that on the 26th, when he got up in the morning, his wife was not in the house. He denies that this wife had left the house because of his torture. 8.3 The witness says that he reached Kagdapith Police Station around 10.30 to 11.30 P.M. At that time, his father-in-law, his brother-in-law, sister-in-law, etc. were present. Police had made inquiries and then the complaint was recorded. 8.4 The witness admits that his father-in-law has lodged a complaint against him, his brother and his father for offences punishable under Section 498-A and 306 of the Indian Penal Code. He denies the suggestion that the present case is concocted by him by way of defence in the complaint against him. 9. Witness-Dattatrey Tanajirao Sawant is examined at Ex.9. He is the father of the complainant and father-in-law of the deceased. He says that, about 2-3 months prior to the incident, deceased-Anju had told him that Kishore is making passes at her, when she goes out. She says that she told Anju that they would go to another house and, therefore, Nilesh shifted to Kailashnagar house on rental basis. He says that the matrimonial life of Nilesh and Anjana was good. 9.1 The witness says that, on 26th April, 1998, he was at his residence till 8.30 A.M. Thereafter, he went to the house of Anju for tea, etc. around 9.00 A.M. He noticed that the house was disorderly with sarees, etc. scattered in the house, which was uncommon. He, therefore, inquired about it from Anju, but she did not give any reply. After having a cup of tea, he was relaxing on a cot when Anju told him that Anna is calling him at Dinesh's house. He told her that he has just come from that house and then he relaxed in the house. He says that Anju gold him that she is not going to wash clothes. He says that, thereafter, Anju went to take bath. After she took bath, he went to the house of Dinesh. Thereafter, after some time, Amit, son of Nilesh, had come and told him that mother has gone for purchasing vegetables and has asked him to remain with the grandfather. He says that, after some time, kerosene was required in the house of Dinesh and, therefore, his wife went to the house of Nilesh to get kerosene. She immediately came back and told them that Anju is not in the house and there are writings on the wall in the house of Nilesh. He, therefore, immediately, went there. He says that his wife and Dinesh also came there. He reiterates the writings on the wall. He then went to the house of Anju's father along with his wife-Asha to inform them about the incident. He says that Anju's sister accompanied them in the auto rickshaw. Thereafter, after about an hour, Anju's father came and said that inquiry is to be made. He says that Dinesh went to call Nilesh and Nilesh arrived around 4.00 P.M. He says that he cannot say the exact timings. He says that he remained in the house and others went to inquire about Anju. He says that police came to his house around 12.00 midnight and they were informed that Anju had committed suicide by jumping into Kankaria lake. He identifies Kishore Sindhi as the accused in the Court. He says that he knows him because he stays in Bhagwatinagar and he is usually to be found on the Pan Galla. 9.2 The witness is cross-examined. He says that, after going to Nilesh's house, he was there for about 15 to 20 minutes. He says that it had not happened that he dosed off for a long time. He says that while he was in the house, no one had come to the house. He says that the house of Dinesh is at a distance of about 5 to 6 minutes walk. He says that about half an hour prior to his reaching the house of Nilesh, his wife (Nilesh's mother) had gone to the house of Nilesh. He says that a time of about 10 minutes may have passed between Anna going to the house of Nilesh and returning to him and all of them again going to the house of Nilesh. He says that he cannot write Gujarati script but can read the same. He denies suggestions regarding quarrels and disputes between Nilesh and his wife. He also denies that Anju had, in past, left the house because of harassment at the hands of himself, his wife and sons. He denies the suggestion that when he reached the house of Nilesh in the morning of 26th, Anju was not there. He states that police had recorded his statement. He says that police had apprehended him about eight months after the incident but not on the day of the incident. He denies that he is falsely supporting the case of his son-Nilesh. 10. The next witness is Sursinh Madhavsinh (Ex.10), who is the Police Photographer, who claims to have taken the photographs of the writings on the wall. He has been cross-examined, but nothing turns on that. 11. The next witness, Rajesh Radheshyam Tiwari (Ex.12), the Panch witness, has turned hostile to the prosecution case. 12. The next witness is Dinesh Dattatrey Sawant, brother of the complainant and brother-in-law of the deceased, who is examined at Ex.13. He says that he knows Kishore Sindhi with his usual place of sitting. He says that, on the day of the incident, while he was sitting on the benches, on the main road near Rashtra Bharti High School, at about 11.00 A.M., his father came and told him that his sister-in-law is not in the house and that it is written in the house that she is going to jump into Kankaria. He was told