CR.A/782/2001 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 782 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 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 ? ================================================= THAKOR DASHRATHJI GABHAJI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MR CHIRAG PATEL for MR BS PATEL for Appellant(s) : 1,MRS RANJAN B PATEL for Appellant(s) : 1, CR.A/782/2001 2/38 JUDGMENT MR KT DAVE, Additional Public Prosecutor for Opponent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 23/11/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K. A. PUJ) 1. The appellant – original accused has filed this appeal under Section-374 of the Criminal Procedure Code, 1973 ( for short 'Code') challenging the order and judgment dated 31.7.2001 passed by the learned Additional Sessions Judge, Mehsana in the Session Case No.229 of 1997 convicting and sentencing the appellant for offence punishable under Section-376 of the Indian Penal Code with a rigorous imprisonment of 10 years and fine of Rs.3,000/- and in default thereof to undergo S.I of 1 year. The appellant – accused was also convicted for CR.A/782/2001 3/38 JUDGMENT the offence under Section-506(2) of IPC and was sentenced for R.I of 1 year and fine of Rs.1500/- and in default thereof to undergo S.I of 6 months. Both these substantive sentences were ordered to run concurrently. 2. Facts of the case have been detailed in the order and judgment of the learned Additional Sessions Judge, Mehsana and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are as under :- 3. It is the case of the prosecution that on 26.3.1997 the complaint has been registered by the complainant that the complainant is residing in hut behind Kamboinagar Society, Raopura, Mehsana. The complainant was residing with his family, he has two sons, one daughter and daughter-in-law. The CR.A/782/2001 4/38 JUDGMENT complainant and his son by occupation were labourers. It is alleged in the complaint that the complainant's daughter, victim girl, was raped by the appellant on 26.3.1997 between 11:30 a.m and 12:30 p.m. It is also alleged in the complaint that the complainant on the date of incident came to know through his daughter-in-law, namely, Bhikhiben that the victim girl was not seen in the house from 11:00 a.m onwards. The complainant and his son went for search of the victim girl. After sometime the complainant heard sound of cry from the adjoining hut. The complainant and his son entered in that hut and they saw that the complainant's daughter was crying and lying on the floor unconscious, at that time appellant run away from the tent by jumping the wall running towards Kamboinagar Society. The complainant, thereafter, asked his son to give her water and then made her sit and on inquiry made by the complainant the daughter CR.A/782/2001 5/38 JUDGMENT of the complainant said that when she was alone in the house at about 11:30 a.m at that time the accused who was earlier residing with them as neighbour had threatened her and took her away to a lone place nearby a chhapra and raped her forcibly. The whole incident was narrated in the complaint. 4. The complainant's son thereafter called his uncle, namely, Babaji and said the fact. The complainant and his son went to lodge a complaint in Police Station and the complaint has been registered being Crime Register No.96 of 1997 for an offence punishable under Sections-376 and 506(2) of the IPC. 5. Pursuant to the registration of FIR, investigation was put into motion. During the course of investigation, statements of the witnesses were recorded, panchnama of the scene of offence was prepared, clothes of the accused as well as victim were also recovered CR.A/782/2001 6/38 JUDGMENT by drawing a panchnama, which were sent to F.S.L. for chemical analysis. After obtaining F.S.L. Report and the certificate issued by the Doctor and also obtaining the evidence of the birth of the victim, since sufficient incriminating evidence was found against the accused, he was charge-sheeted in the Court of learned Judicial Magistrate First Class at Mehsana. 6. As the offence under Sections-376 and 506(2) of the IPC was exclusively triable by the court of Sessions, learned JMFC, Mehsana committed the case to the Sessions Court, Mehsana. The learned Sessions Judge, Mehsana to whom the case was made over for trial, framed charge against the accused for commission of the offence punishable under Sections-376 and 506(2) of IPC. The charge was read over and explained to the accused as the accused pleaded not guilty to the charge. He was put to trial and tried by the learned CR.A/782/2001 7/38 JUDGMENT Sessions Judge, Mehsana in Sessions Case No. 229 of 1997. 7. To prove the culpability of the accused, prosecution has in all examined as many as 9 witnesses, details of which are given in paragraph 5 of the impugned judgment. These witnesses are as under :- Sr.No. Exhibit Particulars 1 10 Dr.Somabhai Hargovanbhai Patel -Medical Officer. 2 17 Dr.Kantilal Ishwardas Patel – Medical Officer. 3 19 Thakor Raichandji Sardarji – complainant - father of the victim girl. 4 21 Daughter of Raichandji – the victim girl. 5 22 Parmar Ayubbhai Gafurbhai – Panch witness. 6 25 Goshwani Navingiri Chimangiri – Panch witness. 7 28 Jivabhai Motibhai – P.S.O 8 31 Prajapati Sevantibhai Gordhanbhai – Panch witness. 9 35 K.M. Raval – P.S.I and Investigating Officer. 8. The prosecution has also produced as many as 19 documents and relied upon the contents CR.A/782/2001 8/38 JUDGMENT thereof. The details of which enumerated in para-6 of the impugned judgment and order are as under :- Sr.No. Exhibit Nature of evidence 1 11 Police Yadi for medical examination of the victim girl. 2 12 Medical Certificate of the victim girl. 3 13 Report of the radiologist. 4 14 to 16 Three X-ray plates. 5 18 Medical Certificate of the accused. 6 20 Complaint. 7 23 Panchnama of cloth of the victim girl. 8 24 Panchnama of the person of the victim girl. 9 26 Panchanama of the person of the accused. 10 27 Slip duly signed by the panchas issued while recovery of the pant of the accused. 11 29 Deputation order. 12 30 Yadi issued while sending the victim girl to the hospital. 13 32 Panchnama of the scene of offence. 14 36 Yadi issued while sending the accused to the hospital. 15 37 Ravangi note of muddamal articles. 16 38 Receipt issued for FSL while receiving muddamal articles. 17 39 FSL report. 18 40 Serological report of FSL. 19 43 Two photographs showing the accused as well as victim girl. CR.A/782/2001 9/38 JUDGMENT 9. After recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Mehsana explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement, as required under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution by reiterating that he has been falsely implicated. In his further statement the appellant – accused has stated that the victim girl used to meet him frequently. However, the father of the victim girl did not like it and he was insisting that the accsued should vacate the hut immediately and because of that there was frequent quarrel among them. He has further stated that the victim girl has asked him to come to her place and see took him to the nearby vacant hut. They were sitting there. The peoples residing in the surrounding huts came together and hence false complaint was CR.A/782/2001 10/38 JUDGMENT filed against him. He has also produced two photographs showing the accused as well as the victim girl together which were exhibited at Ex.43 to the proceeding before the trial Court. 10. On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Sessions Judge, Mehsana has held that the victim girl was subjected to rape by the accused and the prosecution has established that the charge levelled against the accused was proved beyond reasonable doubt and, therefore, the accused was held guilty of the offence of committing rape and, therefore, he was convicted of the offence under Sections-376 and 506(2) of the Indian Penal Code. 11. Thereafter, the learned Sessions Judge, Mehsana heard the accused and his advocate CR.A/782/2001 11/38 JUDGMENT on sentence and looking to the gravity of the offence committed by the accused and looking to the circumstances, the accused was sentenced for an offence under section 376 of the Code with R.I. of 10 years and fine of Rs.3000/- and in default thereof, to undergo further S.I. of one year. The accused was also punished with an offence under Section- 506(2) of the IPC and was sentenced with R.I of 1 year and fine of Rs.1500/- and in default thereof to undergo S.I of 6 months. The learned Judge has passed an order to undergo the aforesaid sentences concurrently. 12. Being aggrieved by the judgment and order, the accused has filed this appeal. 13. Mr.Chirag B. Patel, learned advocate appearing for Mr.B.S.Patel, for the appellant has taken us through the oral as well as documentary evidence which are on record and CR.A/782/2001 12/38 JUDGMENT also assailed the judgment and order of the learned Additional Sessions Judge, Mehsana. He has submitted that the learned Additional Sessions Judge has erred in convicting the appellant – accused though there is no sufficient evidence showing his guilt in the matter. He has further submitted that the Learned Additional Sessions Judge has failed to appreciate that the appellant is innocent and has not committed the alleged offence. The victim girl was a consenting party and out of her own free will and desire the alleged incident was taken place. He has further submitted that the submissions made on behalf of the appellant – accused were not considered by the learned Additional Sessions Judge, in their proper perspective. The impugned judgment and order is based on mere conjuncture and presumption. He has further submitted that there are several contradictions in the evidence of the prosecution which has resulted into the CR.A/782/2001 13/38 JUDGMENT miscarriage of justice. There were certain improbabilities in the case of the prosecution which were clearly pointed out by the appellant – accused and still the same have not been considered by the learned Additional Sessions Judge. He has further submitted that the opinion of the Medical Officer at Ex.12 clearly shows that there was no mark of injury detected on the external body of victim either on face, neck, chest, breast, abdomen, external genital and thigh. There was no external mark of injury over private part of the victim girl. Even the opinion given by the Medical Officer was not considered by the learned Additional Sessions Judge who in term has stated that there was no recent sexual intercourse. It was also stated in the certificate that the victim girl was in the menstrual period of second day. Mr.Patel has further submitted that even the report of the Medical Officer at Ex.10 indicates that there was no abnormality CR.A/782/2001 14/38 JUDGMENT in the walking of the victim. It was also found that in her vagina two fingers easily could enter. It was also admitted that the radiologist report shows age of the victim which may differ by two years. It was also observed by the Medical Officer that the victim girl was in the habit of having regular intercourse. He has further submitted that the learned trial Judge has seriously erred in considering that the appellant had committed intercourse before the day of incident as stated at Ex.18. However, the medical opinion at Ex.10 clearly states that he was not able to give any opinion regarding the present or past intercourse by the appellant. He has further submitted that the Medical Officer has stated on oath at Ex.17 that no mark on body and no blood stains had been found in the examination of the victim. He has further submitted that an objection was raised by the learned advocate representing CR.A/782/2001 15/38 JUDGMENT the accused – appellant before the trial Court at Ex.35 against the serological report produced by the PSI in the cross-examination. He has further submitted that no independent witness was brought by the prosecution before the trial Court, though there was independent witness who could be brought before the Court. He has further submitted that in the further statement of the appellant – accused it was clearly stated that there was an old rivalry between the accused and the father of the victim girl and due to this, false complaint was filed against the appellant – accused. He has further submitted that despite the fact that the charge was filed against the appellant – accused disclosing the age of the victim girl as 16 years and still the learned Additional Sessions Judge has considered the age of the victim girl as 14 years. He has further submitted that even as per the case of the prosecution the appellant – accused disclosed before the CR.A/782/2001 16/38 JUDGMENT doctor regarding intercourse with a consent on the previous day of incident for which the appellant has never been prosecuted. He has further submitted that the evidence of the doctor clearly states that there can be plus or minus of 2 years difference in the age as per the report of the radiologist and the actual age and hence the benefit of doubt must be given to the appellant – accused. He has further submitted that the learned Additional Sessions Judge was misled by the presence of blood on the cloth of the victim girl which was because of the facts that she was in the cycle of menstrual as was indicated in the Medical Officer's report. He has further submitted that the brother of the victim girl who was present immediately after the alleged incident and yet he was not examined by the prosecution for which no reasons have been offered. He has further submitted that there was absolutely an improbability in the case of victim girl as CR.A/782/2001 17/38 JUDGMENT according to her the appellant – accused has shut her mouth by one hand and by second hand after taking out the pant he committed the rape on her and there was no mark of the injury even on the face of victim girl examined immediately after the incident. Mr.Patel has lastly submitted that the appellant – accused is a poor person and is the bread winner of family. He has already undergone the sentence of more than 6 years and if this Court is not inclined to give clean chit to the appellant – accused the maximum sentence awarded by the learned Additional Sessions Judge of 10 years may suitably be reduced. Since the appellant – accused has not given any threat to the victim girl, he was wrongly convicted for an offence punishable under Section-506(2) of IPC and hence sentence award for R.I of one year and fine of Rs.1500/- and in default thereof to undergo S.I of 6 months, may be deleted. CR.A/782/2001 18/38 JUDGMENT 14. Mr. K.T.Dave, learned Additional Public Prosecutor appearing for the State, on the other hand, has supported the case of the prosecution and submitted that no interference is called for in the judgment and order of conviction passed by the Learned Trial Judge. No case is made out by the appellant to take any different view in the matter. He has submitted that the prosecution has examined Dr.Somabhai Hargovanbhai Patel Ex.10 and in his deposition the said doctor has stated that on 26.3.1997 at about 2:00 o'clock the victim girl was sent to him alongwith the police yadi at Ex.11 and as per his deposition the victim girl has started menstrual period 1 year back. As per the opinion of the radiologist the victim girl was aged about 15 to 16 years on the date of incident. The father of the victim girl, namely, Raichandji CR.A/782/2001 19/38 JUDGMENT was examined at Ex.11. He has stated on oath that the age of the victim girl was about 16 years. The victim girl was examined at Ex.21 and she has also stated her age at about 16 years. From this evidence the learned trial Judge has come to the conclusion that the victim girl was minor on the date of the incident. He has further submitted that since the victim girl was below the age of 16 years it is immaterial as to whether she has given her consent or not. No evidence was brought on record with regard to the alleged consent given by the victim girl. Simply because the photographs are produced it would not prove beyond any reasonable doubt that the appellant – accused has committed sexual intercourse with the victim girl with her consent. He has further submitted that having considered the panchnama of the scene of offence, evidence of the complainant at Ex.19 as well as evidence of the victim girl at Ex.21 it becomes clear that the hut where CR.A/782/2001 20/38 JUDGMENT the alleged incident took place was absolutely vacant place and the accused – appellant has taken the advantage of her loneliness and after giving threat and putting his hand on the mouth of the victim girl he has committed rape with the victim girl. He has, therefore, submitted that the victim girl was minor below the age of 16 years at the time of incident and this fact is proved and charge regarding rape was also proved on the basis of F.S.L report produced by the prosecution. He has further submitted that the Learned Trial Judge has rightly convicted the accused for the offence committed by him and no interference is called for by this Court especially when a well-reasoned order has been passed by the learned trial Judge considering all the aspects of the matter. He has, therefore, submitted that the appeal filed by the appellant – accused deserves to be dismissed. CR.A/782/2001 21/38 JUDGMENT 15. We have considered the submissions advanced by Mr.Chirag B. Patel, learned advocate appearing for the appellant and Mr.K.T.Dave, learned Additional Public Prosecutor appearing for the respondent – State of Gujarat at length. We have also undertaken a complete and comprehensive exercise of appreciating all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. We have also gone through the entire testimonial collections. In order to find out whether the prosecution has established the charge against the accused beyond reasonable doubt and whether the learned trial Judge has recorded a just and correct conclusion holding the accused guilty, we may first advert to the oral evidence led by prosecution. CR.A/782/2001 22/38 JUDGMENT 16. P.W. 1 – Dr. Somabhai Hargovandas Patel in his deposition at Exh. 10 has stated that the victim girl was taken to the hospital on 26.03.1997 at about 2 O'clock in the afternoon. She has stated that she was raped. She was fully conscious. She has changed all other clothes except chaniya on which blood stains were found. There were no external injury marks on her face, neck, chest, breast, abdomen or external genital. She was well built and fully nourished. Her walk was quite normal. No heirs were present in her maxilla. Pubic heirs were present and the same were meted with blood (menstrual). There was no external mark of injury over private parts. Her hymen was torn and ruptured (old). Her vagina admits two fingers easily. Her vaginal and urinal swaps were taken, examined and nothing was found. The opinion of the Radiologist was taken and as per the said opinion, her age was between 15 to 16 years. It was not possible to give CR.A/782/2001 23/38 JUDGMENT any opinion with regard to the recent sexual inter-course. In his cross-examination, he has admitted that there was difference of about 2 years in the actual age and the age determined as per the Radiologist opinion. He has further confirmed that the victim girl was habituated to the sexual inter-course. 17. P.W. 2 – Dr. Kantilal I. Patel, Exh. 17 has deposed that on 29.03.1987, he was working as Medical Officer in Mehsana Civil Hospital. The accused was taken to the Hospital for his medical check-up with history of rape. His body was strongly built up. There was no external mark of injury on his body and no blood stains were found on his clothes or any part of his body. As per the say of the accused, he has committed rape with the victim girl as per her consent on the previous day. There was no white substance found on his private part. He has CR.A/782/2001 24/38 JUDGMENT also admitted that it is difficult to give any opinion as to whether he has committed rape very recently. He has given his opinion from the examination of the accused that he was competent for sexual inter-course. 18. P.W. 3 – Thakore Raichand Sardarji at Exh. 19 is the father of the victim girl. He has deposed that when he and his son Chaheraji have come to the house at about 12.30 in the noon for lunch, his daughter-in-law Bhikhiben has told him that the victim girl was not in the house till she came. Hence, he and his son both have gone out in search of the victim girl and during their search they have found that there was noise coming from the adjoining hut. When they entered in the hut, the accused ran away after crossing the wall. The victim girl has thereafter told the entire story as to how the rape was committed with her. In his cross-examination, he has CR.A/782/2001 25/38 JUDGMENT stated that he and his son have tried to catch hold of the accused. However, he ran away. He has further stated that the accused was staying in the nearby hut for about one year and he was staying with his wife and children. He has denied the fact that his daughter used to go every now and then. He has further denied the fact that he did not like that his daughter used to go to the accused house every now and then and since he did not like it, he filed false complaint against the accused. 19. P.W. 4 is the victim girl who was examined at Exh. 21. She has stated in her examination-in-chief that the accused had committed rape. She tried to shout. However, the accused has put his hand on her mouth and hence, she could not shout. She has further stated that as soon as her father and brother entered in the hut, the accused has run away. CR.A/782/2001 26/38 JUDGMENT In her cross-examination, she denied that she did not object to the act of rape committed by the accused. She has further stated that the accused has given her threat of killing her. She has denied that no threat was given to her nor that she has not resisted. She has expressed her ignorance about the alleged quarrel of the accused with her father. She has also denied that she has willingly entered into sexual inter-course with the accused. She has also denied that except the accused, she has committed sexual inter- course with anyone else. 20. P.W. 5 – Ayub Gafoor was examined at Exh. 22. He is the