CR.A/238/2001 1/26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.238 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE H.B.ANTANI ============================================================== 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? ============================================================== SHANKARLAL KESHAVLAL - Appellant Versus STATE OF GUJARAT - Respondent ============================================================== Appearance : MR BS SUPEHIA for Appellant. MR KT DAVE, APP for Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 15/12/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (“the Code” for short) is CR.A/238/2001 2/26 JUDGMENT directed against judgment dated January 19, 2001 rendered by the learned Additional Sessions Judge, Court No.13, Ahmedabad City, in Sessions Case No.259 of 1998 by which the appellant is convicted for commission of offence punishable under Section 376 of the Indian Penal Code (“IPC” for short) and sentenced to R.I. for nine years and fine of Rs.5,000=00, in default S.I. for nine months. The learned Judge has further directed that a sum of Rs.4,000=00 from the amount of fine, if any paid, be given to the prosecutrix by way of compensation to her as contemplated by Section 357 of the Code. 2. In view of law laid down in Bhupinder Sharma vs. State of Himachal Pradesh, (2003) 8 SCC 551, the name of the victim is not indicated in this judgment. 3. The facts emerging from the record of the case are as under: Complainant Hasmukhbhai Popatbhai Sathwara is residing in Bharwadvas, Mahadevpura, Vatva, Ahmedabad, with his family. He has five daughters. The victim is the eldest. The birth date of the victim is September 8, 1984. One Mukesh Keshubhai Patel came to reside in CR.A/238/2001 3/26 JUDGMENT neighbourhood of the victim. On February 8, 1998, complainant Hasmukhbhai left his house at 8.00 A.M. to do labour work at Ghodasar leaving all his five daughters at his house. When he returned home at about 7.00 P.M., he was informed by his daughter Neeta that Mukesh enticed minor victim, out of keeping of her lawful guardian with intent that she might be compelled or forced or seduced to illicit intercourse, by informing her that her father had fallen down while doing labour work and was admitted in the hospital for treatment. Neeta also informed Hasmukhbhai that thereafter the victim had not returned. Hasmukhbhai made search about the victim at the places of his relatives and friends. He also made inquiries about his missing daughter and Mukesh with Keshubhai Chhaganlal Patel, who is father of Mukesh. Extensive search made by Hasmukhbhai about his missing daughter did not yield any result. Therefore, as a matter of last resort, he lodged complaint with Police on February 17, 1998. After enticing the victim, Mukesh took her to Geeta Mandir and from there to Junagadh in a bus. At Junagadh, the victim and Mukesh stayed at Sunil Guest House. The case of the prosecutrix is that Mukesh committed forcible rape on her at the said guest house. On the next day, Mukesh moved with the victim in Junagadh and stayed at another guest CR.A/238/2001 4/26 JUDGMENT house, which was near S.T. Stand, where he again committed rape on the victim. Thereafter, the victim was brought by Mukesh to Rajkot in a train. From Rajkot, Mukesh took the victim to Maninagar, Ahmedabad, and stayed for some few hours in the temple of Lord Mahadev situated at Ghodasar. Mukesh asked the victim to reach Maninagar Railway Station and went to see some of his acquaintances. At Maninagar Railway Station, Mukesh informed the victim that her father has lodged a complaint against him as a result of which, his father was arrested and, therefore, she should come with him at Baroda. So saying, the appellant took the victim to Baroda. From Baroda Railway Station, the victim and Mukesh went to Bajva. At Bajva, Mukesh and the victim met the appellant. Since Mukesh and the victim had no place of abode, the appellant lured them to his house on the pretext of giving shelter and employment to Mukesh. The appellant took Mukesh and the victim to his house situated at Barbulnagar, Vadodara, where Mukesh and the victim stayed for a week with the appellant in his house. Mukesh used to leave the house in the morning for doing masonry work. During the night time, Mukesh was sleeping in the oshri of the house whereas the victim was sleeping inside the room along with the appellant and the wife of CR.A/238/2001 5/26 JUDGMENT the appellant. It may be stated that at Bajva, Mukesh had introduced the victim as his sister to the appellant. At the house of the appellant, the appellant noticed that Mukesh was jesting with the victim and on interrogation of the victim, he learnt that both of them had eloped together from Ahmedabad. Realizing that minor victim girl was all alone and was not protected by anyone, the appellant had started making advances at her. After two days of bringing of Mukesh and the victim to his house, the appellant during the night time started misbehaving with the victim. However, the victim shouted and protested as a result of which, the appellant had to stage retreat. However, on the same night after some few hours of the earlier incident, the appellant untied the string of pyjama put on by the victim, and before any protest could be raised by the victim, pressed her mouth with his hand. Thereafter, the appellant had committed forcible rape on the victim. After the rape was over, the victim shouted for help as a result of which, wife of the appellant, who was sleeping in the said room, woke up. She got angry with the appellant and asked the appellant as to why he was making the girl cry. Thereupon, the appellant had promised his wife that he would not repeat his act again. It is relevant to notice that CR.A/238/2001 6/26 JUDGMENT marriage of the appellant with his wife was arranged by one Anandiben staying at Santoshnagar. The appellant took the victim to the house of Anandiben situated at Santoshnagar and made an attempt to sell off the victim. During this time, the appellant had made the victim to sit in the house of Anandiben. Mukesh anyhow came to know about this. Therefore, he in the company of others went to the house of Anandiben. On seeing Mukesh with people coming to the house of Anandiben, the appellant had made his escape good. Mukesh and people, who had accompanied him, brought the victim to Barbulnagar and assured the victim that they would thrash the appellant. It may be stated that after fleeing from the house of Anandiben situated at Santoshnagar, the appellant went to his house at Barbulnagar. Meanwhile, Pushpaben, who is wife of the appellant, learnt about the rape on the victim by the appellant, i.e. her husband, and the attempt made by the victim to sell off her as a result of which, the appellant fled from Barbulnagar also. The incident which had happened at the house of Anandiben was reported to Jawaharnagar Police Station, Vadodara. The policeman from Jawaharnagar Police Station met the victim and learnt that she was staying with the appellant at his house. Therefore, a message was sent by PSO of Jawaharnagar CR.A/238/2001 7/26 JUDGMENT Police Station, Vadodara, to City Police Station, Ahmedabad, that the victim was found staying with the appellant at Baroda. Thereupon, the victim was brought by Ahmedabad City Police to Ahmedabad. The victim narrated the whole incident to his father, who lodged the complaint with the Police against the appellant and Mukesh for commission of rape on his daughter. During the course of investigation of the said complaint, the victim was subjected to medical check-up. Her clothes were seized under a panchnama to be forwarded to Forensic Science Laboratory for analysis. The complaint of Hasmukhbhaiwas investigated by Police Inspector Mr.D.D.Damor. Mr.Damor recorded statements of those persons, who were found to be conversant with the facts of the case. The appellant was arrested and his clothes were also seized under a panchnama. The articles which were seized during the investigation were sent to Forensic Science Laboratory for analysis. On completion of investigation, the case against Mukesh was separated as he was found to be juvenile whereas the appellant was chargesheeted in the Court of learned Metropolitan Magistrate, Ahmedabad. As the offence punishable under Section 376 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, CR.A/238/2001 8/26 JUDGMENT Ahmedabad City, for trial where it was numbered as Sessions Case No.259 of 1998. 3. The learned Additional Sessions Judge, Ahmedabad City, to whom the case was made over for trial, framed necessary charge against the appellant at Exh.2 for commission of offences punishable under Sections 376, 363 read with Section 114 and Section 365 IPC. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) father of the victim and complainant, i.e. Hasmukhbhai Popatbhai Sathwara as P.W.-1 at Exh.7; (2) victim as P.W.-2 at Exh.50; (3) Narsinhbhai Govindbhai Baraiya as P.W.-3 at Exh.51; (4) Dr.Nareshbhai Kalabhai Patel, who was Superintendent of Vaccination and Registrar of Deaths & Births, as P.W.-4 at Exh.54; (5)Dr.Deepakkumar Champaklal Jagani as P.W.-5 at Exh.56; (6) Investigating Officer PI Mr.Daljibhai Dharmaji Damor as P.W.-6 at Exh.62; and, (7) PSI Mithabhai Kalidas Parmar, who had registered complaint of Hasmukhbhai, as P.W.-7 at Exh.69, to prove its case against the appellant. The prosecution also produced documentary evidence such as; birth certificate of the prosecutrix indicating that her birth date was September CR.A/238/2001 9/26 JUDGMENT 8, 1984 at Exh.55; certificate issued by Dr.Jagani after examining the victim at Exh.58; certificate issued by Dr.Jagani after examining the appellant at Exh.60; panchnama indicating seizure of the clothes put on by the victim on the day of incident at Exh.63; panchnama indicating seizure of clothes put on by Mukesh at Exh.64; panchnama indicating that vaginal swab, pubic hair, etc. of the victim were taken at Exh.65; report of analysis at Exh.68; complaint of Hasmukhbhai at Exh.70; panchnama of place where the victim was subjected to rape at Exh.72; control verdhi sent by PSO, Jawaharnagar Police Station, Vadodara City, to Ahmedabad City Police that victim was found at Exh.73, etc. in support of its case. 4. After recording of evidence of the prosecution witnesses was over, the learned Judge of the trial Court explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further as required by Section 313 of the Code. In his further statement, the appellant claimed alibi. The appellant stated, inter alia, in his further statement that when he was crossing Railway Track, Mukesh had met him and informed him that he and the victim were CR.A/238/2001 10/26 JUDGMENT hungry since two days as a result of which, he had given Rs.10.00 to the victim. According to the appellant, thereafter, Mukesh had requested him to employ him somewhere and he had introduced Mukesh to a contractor who was engaged in business of painting houses. The appellant claimed that Mukesh and the victim had no arrangement to stay and, therefore, he had let out one of the four rooms belonging to him to Mukesh by charging Rs.200=00 per month as rent. The appellant stated that it was his liability to provide light, water, etc. to Mukesh and the victim, but as Mukesh had no money with him, his wife made arrangements for dining for Mukesh and the victim for a week, and Mukesh had promised to return the amount after earning. According to the appellant, Mukesh was not doing any work, but was sitting with Ranjeetbhai, who was selling liquor. The appellant claimed that Ranjeetbhai and Naginbhai were bent upon getting his house for a song and, therefore, Ranjeet bribed the Police and persuaded the victim to lodge a false complaint against him as a result of which, a false case was foisted upon him. Though the appellant took the stand as mentioned above in his further statement, he did not lead any evidence in support of his claim. CR.A/238/2001 11/26 JUDGMENT 5. On appreciation of evidence led by the prosecution, the learned Judge held that it was proved by the prosecution that on the day of incident, the age of the prosecutrix was 13½ years, i.e. below 16 years. The learned Judge considered the examination-in-chief and cross-examination of the victim minutely and found that her testimony was free from blemish as well as trustworthy and, therefore, it was prudent to act upon her testimony. After placing reliance on the testimony of the prosecutrix, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the appellant had subjected the victim to rape. In view of abovereferredto conclusions, the learned Judge has acquitted the appellant for commission of offences punishable under Sections 363 read with 114 IPC and Section 365 IPC, but convicted him under Section 376 IPC and imposed sentence referred to above vide judgment dated January 19, 2001, giving rise to instant appeal. 6. Mr.B.S.Supehia, learned counsel of the appellant, contended that the case of rape on her, as narrated by the victim, is improbable and, therefore, judgment impugned in the appeal should be set aside. The learned counsel of the appellant referred to the CR.A/238/2001 12/26 JUDGMENT testimony of the victim wherein it is stated by her that on the day of incident the wife of the appellant was also sleeping in the room in which the rape was committed on her and contended that if the wife of the appellant was sleeping in the room, it was not probable that the appellant would commit rape on the victim and, therefore, the appellant should not have been convicted for commission of rape on the victim. It was argued that a man would not commit rape on a girl in presence of his wife and, therefore, the case, which is narrated by the victim, is not probable and the conviction of the appellant under Section 376 IPC should be set aside. The learned counsel referred to the history of assault narrated by the victim before Dr.Jagani wherein it is mentioned by her that Mukesh and the appellant both had intercourse with her for a week and contended that this fact is not stated by the victim in her testimony before the Court and in view of material discrepancies appearing in the testimony of prosecutrix, the case of the prosecution should be disbelieved. It was pleaded that before the doctor, who examined the appellant, the appellant stated that he had made an attempt to rape the victim, which was thwarted by his wife and, therefore, in view of frank admission made by the appellant before the CR.A/238/2001 13/26 JUDGMENT doctor, the prosecution case that the appellant had raped the victim should have been disbelieved by the learned Judge of the trial Court. It was claimed that while keeping a hand pressed on the mouth of the victim, it was neither possible for the appellant to remove clothes of the victim nor possible to remove his clothes and, therefore, the case, which was not probable at all, should not have been believed by the learned Judge of the trial Court. The learned counsel asserted that the evidence on record has not been appreciated in its true perspective by the learned Judge of the trial Court and, therefore, the appeal should be allowed. 7. Mr.K.T.Dave, learned Additional Public Prosecutor for the State, pointed out to the Court that while tendering the evidence before the learned Judge of the trial Court, the victim was subjected to such a gruelling cross-examination that she had to weep and made statement before the Court if rape on her had not been committed by the appellant, she would not have so stated before the Court and asserted that this fact itself shows that the testimony of the victim is without blemish and is rightly acted upon by the learned Judge of the trial Court. According to the learned Additional Public CR.A/238/2001 14/26 JUDGMENT Prosecutor for the State, conviction in a rape case can be based solely relying upon the testimony of the prosecutrix and corroboration is not a sine qua non for recording conviction under Section 376 IPC if testimony of the victim is found to be cogent and trustworthy. The learned counsel of the State Government referred to testimony of the victim in detail and argued that the defence has failed to bring on record major contradictions and/or omissions with reference to earlier police statement of the victim and, therefore, her testimony should be believed by this Court also. After emphasizing that corroboration to testimony of a victim of a rape is not necessity of law, it was argued that here in this case, corroboration was available to the testimony of the victim in abundance and, therefore, well founded conviction of the appellant under Section 376 IPC should be upheld by this Court. It was argued that the incident in question of rape on victim was narrated by a victim of tender age to her father, who had lodged the complaint promptly and, therefore, testimony of the victim deserves acceptance. It was claimed that the testimony of the victim also gets corroboration from the history recorded by the doctor, who had medically examined her and, therefore also, her testimony deserves CR.A/238/2001 15/26 JUDGMENT to be accepted. The learned counsel of the respondent maintained that cogent and convincing reasons have been assigned by the learned Judge of the trial Court for convicting the appellant under Section 376 IPC and as the learned counsel of the appellant has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed. 8. This Court has heard Mr.B.S.Supehia, learned counsel of the appellant, and Mr.K.T.Dave, learned Additional Public Prosecutor for the State, at length and in great detail. This Court has also 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. 9. This Court is dealing with a rape case and, therefore, it would be relevant to notice, in brief, the law laid down by the Supreme Court regarding appreciation of evidence of a prosecutrix. In State of Punjab Vs. Gurmit Singh, A.I.R. 1996 SC 1393, following principles have been laid down for appreciation of evidence tendered by a prosecutrix: CR.A/238/2001 16/26 JUDGMENT “The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon CR.A/238/2001 17/26 JUDGMENT corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable, Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a Victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity least that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.” Having noticed the principles, which must be CR.A/238/2001 18/26 JUDGMENT borne in mind by a Court of law while appreciating the evidence of a prosecutrix, this Court proposes to consider the evidence of the prosecutrix tendered in the case on hand. 11. The prosecutrix in this case is examined as P.W.-2 at Exh.50. She has stated in her testimony that she is residing in a building of Bijalbhai Bharwad situated in Bharwadvas, Mahadevpura, Vatva, Ahmedabad, with his parents and four sisters. She has stated that the name of her mother is Ramilaben and that her parents are doing masonry work. The witness has mentioned that she is the eldest daughter of her parents and she has studied up to 8th Standard. According to her, one Keshubhai Chhaganbhai Patel with his family including his son Mukesh had come to reside near her house. The witness has mentioned that the incident in question took place on February 8, 1998 and one month prior thereto, she had come in contact of Mukesh. According to the victim, on February 8, 1998, her parents had gone to attend masonry work and that when she was in her house with her sisters, Mukesh had approached her between 2.30 A.M. and 3.00 P.M. and informed her that she was called by her parent. The witness has mentioned that thereupon, she had left her house with Mukesh and that Mukesh had taken her to CR.A/238/2001 19/26 JUDGMENT Isanpur from where she was taken to Junagadh. According to her, at Junagadh, she had stayed with Mukesh at Sunil Guest House where Mukesh had committed forcible rape on her. The witness has also mentioned that Mukesh had moved in Junagadh in her company and during the night time, they stayed in another guest house situated near S.T.