IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 659 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.R.SHAH ============================================================ 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? -------------------------------------------------------------- DALWADI GOVINDBHAI AMARSHIBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 659 of 2000 MR PS CHAMPANERI for Appellant MR KT DAVE, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.R.SHAH Date of decision: 10/03/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE M.R.SHAH) The present appeal is filed under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short) against the judgment dated May 19, 2000 passed by the learned Additional Sessions Judge, Surendranagar, in Sessions Case No.22 of 1993, by which the appellant is convicted of the offence under Section 376 of the Indian Penal Code ("the IPC" for short), and sentenced to suffer R.I. for eight years and a fine of Rs.10,000=00, in default, S.I. for one year. 2. In view of the decision in the case of State of Punjab v. Ram Dev, 2003 A.I.R. SCW 6947, we do not propose to mention the name of the victim. 3. The parents of the victim reside at village Sayla. The name of her father is Dhanjibhai whereas name of her mother is Gauriben. She is married to Pravinbhai Bhopabhai of Wadhvan town. The incident in question had taken place on August 21, 1992. Fourteen days prior to the date of incident, the victim had come to her parental house to stay there. On the date of incident, her husband had come to village Sayla to take her with him at her matrimonial home. In the morning of date of incident, the victim had served tea etc. to her husband. Her husband had expressed his desire to visit Mela which was held in the village, but the victim had told her husband that her mother and sister had gone to field to pick up Guvar and that after picking up Guvar, she would come back and would go with him to visit Mela. At about 8.00 a.m., she had proceeded to go to Wadi of her father. When she had reached near trees in the sim of village, the appellant had accosted her and asked her why she was going to Wadi all alone. In order to dissuade the appellant from following her, the victim had told the appellant that she was being followed by her mother and father, and had started walking fast. However, the appellant had continued to chase her and caught hold of her near the bushes of babul trees. As the victim had tried to free herself from the clutches of the appellant, she had received nail injuries on her cheek and neck. The appellant had dragged the victim to a ditch and after throwing her in the ditch, had mounted on her. The victim had entreated the appellant to let her go, but after lifting the petticoat of the victim, the appellant had unchained his pant and committed rape on her. The victim had shouted for help and, therefore, the appellant had gagged her mouth with her Odhani (upper garment worn by girls). After committing the rape on the victim, the appellant had threatened her that if the incident was narrated by her to anyone, she would be cursed by female ghost of Anada Waghari. The victim was weeping uncontrollably and had gone to Wadi where her mother and sister were picking up Guvar. After reaching Wadi, the victim had narrated the incident to her mother and sister. Therefore, leaving the work of picking Guvar unfinished, the victim was brought home by her mother and sister. The father of the victim was not available in the house as he had gone to visit another village. On his return to the house, the victim had narrated the incident to him. The victim in the company of her father had gone to Sayla Police Station for lodging the complaint where she had lodged the complaint. The complaint was reduced in writing by Police Sub Inspector, Mr.P.B.Mer. The Police Officer had taken the victim to Sayla Government Dispensary for medical examination and drawn panchnama of place of incident, which was pointed out by the victim. He had also attached clothes worn by the victim at the time of the incident. The appellant was arrested on August 22, 1992 and he was also taken to Limdi Dispensary for medical examination. The clothes put on by the appellant were also taken into custody. The clothes and other articles were sent to Forensic Science Laboratory for analysis. On the completion of investigation, the appellant was chargesheeted of the offence punishable under Section 376 of the IPC in the Court of learned Judicial Magistrate, Sayla. As the offence punishable under Section 376 of the IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Surendranagar, for trial where it was numbered as Sessions Case No.22 of 1993. 4. The learned Judge to whom the case was made over for trial, had framed charge against the appellant at Exh.3 of the offence punishable under Section 376 of the IPC. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution had examined (1) complainant - victim, P.W.-1 at Exh.12, (2) Gauriben wife of Dhanjibhai & mother of the victim, P.W.-2, at Exh.14, (3) Pravinbhai Bhopabhai, husband of the victim, P.W.-3 at Exh.15, (4) Bhartiben Dhanjibhai, sister of the victim, P.W.-4 at Exh.16, (5) Majuben Rambhai, P.W.-5 at Exh.18, (6) Ramjibhai Lakhabhai, P.W.-6 at Exh.20, (7) Kamruddin Fatubhai, P.W.-7 at Exh.22, (8) Dr.Tillottama P. Parmar, P.W.-8 at Exh.25, (9) Dr.Lalitbhai Punabhai Chavda, P.W.-9 at Exh.28, (10) Dr.Ghanshyambhai Chaturbhai Motka, P.W.-10 at Exh.30, and (11) Parsottambhai Bhimjibhai Mer, Investigating Officer, P.W.-11 at Exh.38, to prove its case against the appellant. The prosecution had also produced documentary evidence such as; complaint of the victim at Exh.13; panchnama of seizure of muddamal clothes at Exh.19; panchnama of place of incident at Exh.21; panchnama of person of the accused at Exh.23; medical certificate issued by Medical Officer, Limdi, at Exh.29; medical certificate issued by Medical Officer, Sayla regarding injuries of accused, at Exh.31; injury certificate of victim at Exh.32; letter with regard to sending of muddamal to Forensic Science Laboratory at Exh.39; receipt issued by the office of Forensic Science Laboratory with regard to receipt of muddamal at Exh.40; and, report of Forensic Science Laboratory at Exh.41, in support of its case against the appellant. 5. After recording of the 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 statement, as required under Section 313 of the Code. In his further statement, the case of the appellant was that he had not committed rape but somebody else had committed rape, and he was falsely implicated in the case. However, no evidence was led by him to substantiate his defence. 6. After appreciating the evidence adduced by the prosecution and hearing the learned counsels for the parties, the learned Judge held that the case of the prosecution against the appellant of the offence under Section 376 of the IPC was proved beyond reasonable doubt. In view of this conclusion, the learned Judge has convicted the appellant of the offence punishable under Section 376 of the IPC and imposed the sentence referred to hereinabove by judgment dated May 19, 2000, giving rise to this appeal. 7. Mr.P.S.Champaneri, learned counsel of the appellant, submitted that the appellant had not committed rape on the victim, but somebody else had committed rape and as he was falsely implicated in the offence, the appeal should be allowed. It was submitted that the complaint, Exh.13, given by the victim should not have been treated as `First Information Report' because evidence of Gauriben suggests that Head Constable Chandubhai of Sayla Police Station had come to the house of the victim and recorded her statement and the said statement would be `First Information Report' in the case. What was highlighted was that the said statement is not produced by the prosecution on the record of the case and after drawing adverse inference, the prosecution case should have been disbelieved. After referring to the evidence of Pravinbhai Bhopabhai, who is husband of the victim, it was argued that his evidence establishes that the victim had not disclosed the name of the appellant as perpetrator of the crime to her husband and had left for Wadhvan at 1.00 p.m. making the case of the prosecution highly doubtful to the effect that the victim had lodged the complaint at about 4.00 p.m. and, therefore, benefit of doubt should have been given to the appellant. According to the learned counsel of the appellant, the appellant had not sustained injuries on upper part of his body, which in normal course would have been received if resistance had been offered by the victim and, therefore, it should have been held that the appellant was falsely implicated in the case. It was submitted by the learned counsel of the appellant that panchnama indicating seizure of the clothes of the appellant is not proved through the evidence of panch witnesses and, therefore, seizure of pant having stains of semen would not be an incriminating circumstance against the appellant. It was argued that the report of Forensic Science Laboratory showing that the petticoat and pant put on by the appellant had the same group of semen should not have been relied upon as the contents of the report of Forensic Science Laboratory were never explained to the appellant while recording further statement under Section 313 of the Code nor his explanation regarding the same was sought and as the learned Judge has taken into consideration the factors which could not have been taken into consideration, the appeal should be allowed. In the alternative, it was argued that the appellant is married man with two children and as he has to maintain his family members by doing agricultural work, the sentence undergone by him should be imposed on him for commission of offence under Section 376 of the IPC. 8. Mr.K.T.Dave, learned Additional Public Prosecutor, contended that the finding recorded by the learned Judge that the prosecution has proved that the appellant had committed the offence punishable under Section 376 of the IPC is neither unreasonable nor perverse, but is based upon the evidence on record and, therefore, the appeal should be dismissed. It was argued that the victim had narrated the incident to her mother and sister and had also disclosed the name of the appellant as perpetrator of crime and as no enmity is suggested, the contention that the appellant was falsely implicated in the offence should not be accepted. It was submitted that the victim herself had lodged the complaint which lends corroboration to her sworn testimony and as her evidence is also corroborated by injuries proved through medical certificate as well as circumstantial evidence in the nature of report Forensic Science Laboratory, the appeal should be dismissed. According to the learned Additional Public Prosecutor, the evidence does not disclose that Head Constable, Chandubhai, had recorded statement of the victim after visiting her home and, therefore, Exh.13, which is complaint lodged by the victim, is rightly treated as `First Information Report' in the case. It was further argued that panchnama of seizure of clothes stands amply proved through the evidence of the Investigating Officer and as the learned Judge had explained to the appellant incriminating evidence appearing against the appellant in the evidence of prosecution, it is not correct to say that the report of Forensic Science Laboratory should be discarded because the contents of the same were not put to the appellant at the time of recording his further statement. The learned APP submitted that no ground is made out by the learned counsel of the appellant to interfere with well-reasoned conviction of the appellant under Section 376 of the IPC and, therefore, the appeal should be dismissed. Dealing with alternative plea regarding reduction of sentence, the learned APP has relied upon judgment in State of Karnataka v. Puttaraja, (2004) 1 SCC 475, and submitted that leniency in sentence relating to cases of rape being against public interest and object of sentence, plea for reduction of sentence should not be accepted by this Court. 9. We have heard Mr.P.S.Champaneri, learned counsel for the appellant, and Mr.K.T.Dave, learned Additional Public Prosecutor, on behalf of the respondent State. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 10. The evidence of prosecutrix, which is recorded at Exh.12, shows that she had come to reside at her parental house fourteen days prior to the date of incident and on the day of incident, her husband had come to her parental house to bring her to her matrimonial home. The prosecutrix has narrated in detail as to how the incident had taken place. The injuries sustained by the prosecutrix lend corroboration to her testimony. Though the victim has been searchingly cross examined by the defence counsel, nothing could be brought on record to shake her version regarding the incident. It is well settled that a woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. To insist on corroboration except in the rarest of rare case is to equate one who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. The evidence of a woman or girl who is raped stands on high pedestal than that of an injured witness. Here in this case, the medical evidence shows that the victim was pregnant by two months at the time of incident. On the date of incident, her husband was present in her parental house. Under the circumstances, there is no reason why the evidence of the victim, who had complained of rape by the appellant, should be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. It is relevant to notice that the incident of rape on the victim is not denied by the appellant. The only defence pleaded is that he was falsely implicated in the case to save one Shamji Valji. Except making bare suggestion that false case was lodged by the appellant to save Shamji Valji, no evidence was led by the appellant to substantiate this defence. It is well settled that the suggestion made but denied does not constitute evidence in eye of law. The appellant has not even remotely suggested that either the victim or her parents or her husband had any enmity with him. There was no reason for the victim to name the appellant as perpetrator of crime to save Shamji Valji. 11. At this stage, it would be relevant to notice the decision of the Supreme Court dealing with point of false implication of an accused in rape case. In Prithi Chand v. State of Himachal Pradesh, A.I.R. 1989 SC 702. It was contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and the girl's father. The prosecutrix had in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained. It was suggested in the course of cross-examination that Ratna, the son of PW-8 Phulan Devi was intimate with the prosecutrix and he had raped the girl. In his statement under Section 313 of the Code of Criminal Procedure, the appellant had put forth the case that when he had returned to his village in the evening, he had seen some ladies at the girl's house and heard the girl saying that she was subjected to rape by Ratna. Negativing the contention that the appellant was falsely involved due to a long standing enmity, the Supreme Court has held that it is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the crime. Except for the suggestion made in the cross-examination of PW-8 Phulan Devi, Ratna's mother and the statement under Section 313 of the Code of Criminal Procedure there was no other material on record which could give credence to the suggestion. 12. In Promod Mahto & Ors. v. The State of Bihar, A.I.R. 1989 SC 1475, it was argued that a false case was foisted on accused due to communal feelings. The Supreme Court while negativing the said contention, has held that even if communal feelings had run high, it is inconceivable that an unmarried girl and two married women would go to extent of staking their reputation and future in order to falsely set up a case of rape on them for sake of communal interests. 13. Applying the principles laid down in abovereferredto two decisions of the Supreme Court to the facts of the case on hand, we find that the plea of false implication put forth by the appellant cannot be accepted. As false implication of the appellant is ruled out, the case put forth by the victim will have to be accepted. The conviction of the appellant on the basis of testimony of the victim will have to be upheld as her evidence inspires confidence and appears to the Court to be natural and truthful. 14. However, even if one were to seek corroboration to the testimony of the victim, the same is available in abundance. The victim is corroborated fully by her complaint, which was lodged after her father had returned home. The plea that Head Constable, Chandubhai, had recorded the statement of the victim which should have been treated as `First Information Report' and adverse inference should have been drawn against the prosecution for non production of the same, has no merit. It was never suggested to the victim that her statement was recorded by Head Constable, Chandubhai. The evidence of Investigating Officer, Mr.Mer, establishes that Head Constable, Chandubhai, had not visited the house of the prosecutrix before her complaint was registered. A stray statement made by mother of the victim to the effect that statement of the prosecutrix was recorded by Head Constable, Chandubhai, would not establish that Head Constable, Chandubhai, had visited the house of the prosecutrix and recorded her statement before she had lodged complaint. Even if it is assumed for the sake of argument that some statement was recorded by Head Constable, Chandubhai, it is not established that he was Police Officer Incharge of Sayla Police Station nor it is established that information gathered by him was entered into a Register maintained at the Police Station. Therefore, such a statement even if recorded would not constitute `First Information Report' within meaning of Section 154 of the Code. Thus, the sworn testimony of the prosecutrix stands amply corroborated by her complaint. 15. Her testimony further stands corroborated by natural and inspiring evidence of her mother, Gauriben, and sister, Bhartiben, who have in no uncertain terms stated before the Court that immediately after the incident, the victim had come weeping to Wadi and disclosed the name of the appellant as perpetrator of crime. It is important to notice that nothing was suggested to these two witnesses as to why they were falsely deposing against the appellant. 16. The plea that the evidence of witness, Pravinbhai, who is husband of the victim, shows that the victim had not disclosed the name of the appellant as perpetrator of crime and had left village Sayla for Wadhvan town at about 1.00 p.m. making her case that she had lodged the complaint at 4.00 p.m. doubtful and, therefore, conviction should be set aside, is devoid of merit. A bare perusal of evidence of Pravinbhai shows that he has deposed before the Court in a most casual manner. After stating that he had found clothes put on by her wife to be torn and her petticoat and Odhani had stains, he had stated that on inquiry being made, his wife had narrated to him the incident of rape. He has further stated that though the name of perpetrator of crime was disclosed to him, he had forgotten the name of the person as disclosed by his wife and, thereafter, they had come to Wadhvan. In cross examination, he has stated that the victim had not given name of anyone as perpetrator of crime. In the cross examination, again he has maintained that his wife had narrated the incident of rape on her. The victim who had narrated the whole incident to her mother and sister would not fail to narrate the incident to her husband who was physically present in parental house nor would fail to disclose the name of perpetrator of crime to her husband. It is relevant to notice that it was never suggested to the victim during her cross-examination that she had not disclosed the name of perpetrator of crime to her husband. To condemn the victim on the basis of evidence of her husband would amount to doing injustice to her. The claim of the husband that he had left village Sayla in the company of the victim for Wadhvan town does not inspire confidence because medical evidence shows that after the complaint was lodged, the victim was medically examined by different doctors at different places. The evidence of Investigating Officer also shows that the complaint, as narrated by her, was registered. Thus, the presence of the victim in village Sayla stands amply proved by other reliable evidence on record and no benefit of doubt can be given to the appellant on the basis of casual testimony of her husband. 17. The contention that petticoat put on by the victim at the time of incident was not sent to Forensic Science Laboratory for analysis, but another petticoat of different colour was sent for analysis and, therefore, the report of the analysis should not be relied upon, has no merits. The victim in her evidence has stated that she had worn yellow petticoat at the time of incident whereas report of Forensic Science Laboratory indicates that the colour of the petticoat was brown. However, this would not suggest that the petticoat put on by the victim at the time of incident, was not sent to Forensic Science Laboratory at all. The prosecution has produced muddamal list at Exh.2. Therein, it is specifically stated that colour of the petticoat was light yellow brown. Similarly in the panchnama of seizure of clothes of the victim, it is stated that the colour of the petticoat was light yellow brown. Thus, there is no major discrepancy regarding colour of the petticoat put on by the prosecutrix at the time of incident. 18. The plea that absence of injury on the person of the appellant rules out his involvement in the incident is merely stated to be rejected. If one looks to medical certificate, Exh.31, it is specifically mentioned therein that the appellant