CC 1/2005 CAV Judgment Page # 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 1 of 2005 With CRIMINAL APPEAL No. 2292 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE BANKIM.N.MEHTA =========================================================== 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 ? =========================================================== STATE OF GUJARAT - Appellant(s) Versus THAKORE BALVANTJI SOMAJI - Respondent(s) =========================================================== Appearance : MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR BS SUPEHIA for Respondent(s) : 1, =========================================================== CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 28/10/2005 COMMON CAV JUDGMENT CC 1/2005 CAV Judgment Page # 2 (Per : HONOURABLE MR.JUSTICE M.S.SHAH) This Confirmation Case arises from the judgment and order dated 15.12.2004 rendered by the learned Additional Sessions Judge, (Fast Track Court No. 2), Mehsana in Sessions Case No. 152 of 2003 convicting accused Balwantji Somaji Thakore, aged about 18 years, for the offences punishable under Sections 376 and 302 IPC and sentencing the accused to life imprisonment for the offence punishable under Section 376 and to death penalty, subject to confirmation by this Court, for the offence punishable under Section 302 IPC. 2. Criminal Appeal No. 2292 of 2004 is filed by the accused against the aforesaid judgment and order of conviction and sentence. 3. Since common questions of fact and law are involved, both the Confirmation Case and the Criminal Appeal have been heard together and are being disposed of by this judgment. 4. The prosecution case in brief is that on 29.4.2003 at CC 1/2005 CAV Judgment Page # 3 6.00 PM the accused took deceased Niyati, aged 1½ years from her mother PW 10 Kailasben Jagdish Raval for playing, but neither the accused nor the deceased returned. Hence, the search was started at about 8.00 PM when the father of the deceased returned home. The accused and the deceased were last seen together by PW 9 Binalben Dineshchandra Vyas. The accused was caught by PW 5 Chamanbhai Fakirbhai at about 2.00 AM on the night between 29th and 30th April, 2003. When the people who had gathered asked the accused regarding the whereabouts of the girl (Niyati), the accused informed that Niyati may be on the otla of the Bharaivadada Mandir. When Niyati was not found at the said place, the accused was again asked about the whereabouts of the girl and he stated that Niyati may be at the well near the Brahmani Mata Temple. The dead body of Niyati was found there. Hence, intimation Exh. 11 was given to the police at 5.30 AM and the FIR Exh. 33 was lodged at 6.00 AM on 30.4.2003. The accused was arrested at 6.20 AM the same morning. On 1.5.2004 at about 8.15, pyjama (lehangi) worn by the deceased was found from the wada of PW 12 Divaben Shivabhai and the pyjama was stained with semen. The accused was charged with the offences punishable under Sections 363, 366, 376 and 302 IPC. The accused pleaded CC 1/2005 CAV Judgment Page # 4 not guilty. 5. At the trial, the prosecution led the following evidence :- PW No. Exh. No. Name Description 4 32 Jagdish Shivram Raval Complainant – father of the deceased. 10 43 Kailasben Jagdish Raval Mother of the deceased. 9 42 Binalben Dineshchandra Vyas Daughter of pujari of Brahmani Mata Temple where the accused was seen with the deceased. 12 53 Divaben Shivabhai Who keeps her buffaloes in a wada from where pyjama of the deceased and some biscuit wrappers were found. 13 54 Revabhai Prajapati Owner of the provision store from which the accused had purchased biscuits. CC 1/2005 CAV Judgment Page # 5 5 35 Chamanbhai Fakirbhai Who saw the accused at 2.00 AM., caught him and brought him to the residence of the complainant and helped the complainant to find out the deceased girl. 6 8 36 41 Babubhai Umedbhai Prajapati and Jayantibhai Patel Who helped the complainant to find out the deceased girl and confirmed the presence of PW 5 Chamanbhai. Dr Hareshbhai Kantilal Patel who performed the post-mortem on the deceased stated in the post-mortem report (Exh. 47) that the deceased had died on account of shock due to vasovagal attack. The prosecution also examined four police officers who were concerned with either receiving the FIR or the investigation. The panchas were also examined to prove the arrest panchnama at Exh. 19, the inquest panchnama Exh. 20, scene of panchnama Exh. 23 and panchnama Exh. 25 regarding recovery of T-shirt and bangles of the deceased and panchnama Exh. 29 for recovery of pyjama of the deceased at the instance of the accused. The birth certificate (Exh. 55) dated 1.5.2003 issued by the Talati-cum-Mantri of Malekpur Gram Panchayat, Taluka CC 1/2005 CAV Judgment Page # 6 Vadnagar, District Mehsana mentioned that deceased Niyati was born on 29.6.2001 i.e. on the date of the incident, the deceased was aged one year and seven months old. The birth certificate (Exh. 56) dated 1.5.2003 issued by the primary school at Malekpur, Taluka Vadnagar, District Mehsana stated that the accused was born on 17.2.1985 i.e. the accused was aged 18 years and 2 months on the date of the incident. 6. After considering the oral and documentary evidence on record, the learned Sessions Judge found the accused guilty of the offences punishable under Section 376 and 302 IPC on the basis of the following circumstantial evidence :- (i) The accused had taken away the deceased aged 1½ years at 6.00 PM on 29.4.2003 from PW 10 Kailasben, mother of the deceased, but did not bring the deceased back. (ii) The deceased was last seen with the accused as per the deposition of PW 9 Binalben. CC 1/2005 CAV Judgment Page # 7 (iii) Semen stains were found on the pant of the accused. (iv) Semen stains were found on the lehangi (pyjama) of the deceased. (v) The medical witness PW 11 Dr Hareshbhai Kantilal Patel at Exh. 45 who had done the post mortem (report Exh. 46) indicated that the deceased was raped and that the cause of death is “vasovagal attack due to assault”. According to the said Doctor, the age of the deceased was 1½ years to 2 years. The post-mortem was performed between 2.30 PM and 3.20 PM on 30.4.2004. The learned trial Judge acquitted the accused of the offences punishable under Sections 363 and 366 IPC on the ground that the accused had taken the deceased with him with the consent of the mother of the deceased. The learned trial Judge convicted the accused of the offences punishable under Sections 376 and 302 IPC and imposed the sentence of life imprisonment for the offence punishable under Section 376 IPC and the death penalty, subject to the CC 1/2005 CAV Judgment Page # 8 confirmation by this Court, for the offence punishable under Section 302 IPC. It is from the aforesaid judgment and order that the present Confirmation Case as well as the Criminal Appeal arise. 7. At the hearing of the appeal, Mr BS Supehia, learned advocate for the appellant-accused has made the following submissions :- (i) The evidence of the accused and the deceased having been last seen together is based on the deposition of PW 9 Binalben Dineshchandra Vyas. However, in her cross-examination, the said witness stated that the police had recorded the statement when she was sick and it was her father who had given the statement for her. On the other hand, PW 15 Investigation Officer – TK Patel (Exh. 58 – para 3) stated that Binalben herself had given the statement. The evidence of this witness also suffers from other contradictions and, therefore, the theory of last CC 1/2005 CAV Judgment Page # 9 seen together cannot be believed. (ii) Semen stains on the pyjama of the accused can exist for variety of reasons and would not necessarily connect the accused with the offence of rape. Reliance is placed on the decisions in AIR 1973 SC 343 and JT 2001 (8) SC 505 (para 25). (iii) As regards the semen stains on the lehangi (pyjama) of the deceased, it is contended that the accused was in custody of the police even before the complaint was filed, his pant had semen stains and, therefore, the possibility of the semen stains having been put by the police on the lehangi of the deceased cannot be ruled out. Even otherwise also, if the accused had committed rape, he would have removed the lehangi before the act and, therefore, there was no scope of semen on the lehangi and the presence of semen stains on the lehangi is also created with a view to frame the accused. Reliance is placed on the decision in JT 2001 (8) SC 505. CC 1/2005 CAV Judgment Page # 10 (iv) It is submitted that there is no circumstantial evidence which can connect the accused with the offence of rape. Even though the accused was alleged to have committed rape on the deceased, the accused was not medically examined by any doctor. The best and direct evidence of medical test of the accused is lacking and, therefore, the accused deserves to the acquitted. Strong reliance is placed on the decision in AIR 1946 Allahabad 191 in support of the contention that non-examination of the accused by a doctor should result into acquittal of the accused. If the accused is medically examined and no injuries are found on his private part, that should result into acquittal as held in the case of Rahim Beg vs. State of UP, AIR 1973 SC 343 and in State of Gujarat vs. Mahmad @ Munno Usmanbhai Chauhan, 1996 (2) GLR 821. (v) When the prosecution case is that the accused had taken the deceased from her house with the consent of the deceased at 6.00 PM and since the deceased did not return, inquiries were CC 1/2005 CAV Judgment Page # 11 made from 8.00 PM onwards and the accused was caught at 2.00 AM, the natural conduct on the part of all concerned would have been to make inquiries at the house of the accused. The fact that no such inquiries were made at the house of the accused between 8.00 PM and 2.00 AM supports the defence case. (vi) There is no evidence on record to indicate where the offence had taken place. No other marks were found either at the well of the Brahmani Mata Temple or in the wada from where the lehangi of the deceased was allegedly recovered. (vii) The lehangi was traced after two days. When the search of the wada was made, thought its owner Divaben was there, she was sent out of the wada and, therefore, she did not know what the police had done in the wada. (viii) Reliance is placed on the decisions in 1998 Cri.LJ 4421 and 1994 Cri.LR (SC) 554 in support CC 1/2005 CAV Judgment Page # 12 of the contention that the discovery is not substantive evidence but is merely a corroborative piece of evidence and that the Court has to be cautious while relying upon the evidence obtained by way of discovery at the instance of the accused. (ix) The prosecution case that Chaman caught hold of the accused at 2.00 AM at night at a distance of only two minute walk from the house of the complainant, cannot be believed when about 300 village people could not find out the accused earlier. (x) In case of circumstantial evidence, the chain has to be completed. Reliance is placed on the decision in AIR 1979 SC 1949. (xi) The prosecution must prove its case beyond reasonable doubt. It is not sufficient for the prosecution to show that the prosecution case may be true, the prosecution has to prove that the prosecution case must be true. Reliance is CC 1/2005 CAV Judgment Page # 13 placed on the decision in JT 2001 (80 SC 505 (paras 24 to 26). 8. On the other hand, Mr AJ Desai, learned APP has opposed the appeal and submitted that all the links in the chain of circumstantial evidence have been clearly established by the prosecution beyond reasonable doubt. The accused had taken deceased Niyati aged 1 year and 7 months from the custody of her mother at 6.00 PM on 29.4.2003. Since the accused was aged 18 years on the date of the incident, and her daughter was only about 1½ years old, naturally the mother did not have any reason to suspect the design which the accused was having. It is not the case of the accused that the accused had not taken Niyati from out of the physical custody of her mother nor is it the case of the accused that after taking her out at 6.00 PM he had returned Niyati to her mother. Hence, failure on the part of the accused to explain his not returning Niyati was sufficient to fasten conviction on the accused. Even otherwise, the prosecution had led adequate evidence to show that after taking the deceased girl from the physical custody of the mother, the accused had purchased Parle-G biscuits from the shop of PW 13 Revabhai CC 1/2005 CAV Judgment Page # 14 Prajapati and that PW 9 Binalben Dineshchandra Vyas, daughter of the pujari of the Brahmani Mata Temple had also seen the deceased with the accused. Thus, apart from the accused not having explained where the deceased had gone after the accused took her out, there is positive evidence to show that the accused had taken the deceased near the Brahmani Mata Temple. It is further submitted that in view of the medical evidence that the deceased aged about 1½ years was raped, and her dead body was recovered at the instance of the accused at 2.00 AM on the night between 29th and 30th April, 2003, i.e. within eight hours after the accused had taken her from the physical custody of her mother and within a few hours from the time when the accused was last seen together with the deceased – all this material is only consisted with the guilt of the accused for the offences punishable under Section 376 as well as Section 302 IPC. The learned APP has also submitted reply to various contentions urged on behalf of the appellant accused. CC 1/2005 CAV Judgment Page # 15 9. Having heard the learned counsel for the parties, we are clearly of the view that it has remained uncontroverted that it was the accused who had taken deceased Niyati aged about 1 year and 7 months from the physical custody of her mother Kailasben at 6.00 PM on 29.4.2003. It has clearly come out during cross- examination of Kailasben that even before the date of the incident, the accused used to take Niyati out for playing with her. The suggestion made on behalf of the accused in the cross-examination of Kailasben that after the accused had taken Niyati out, the accused had dropped Niyati at the cabin of her mother-in-law i.e. at the cabin of the mother of Jagdishbhai Raval was negatived by Kailasben. In other words, there is no challenge to the prosecution case that the accused had taken Niyati out. In this view of the matter, it was for the accused to lead some evidence to show that the accused had dropped Niyati at the cabin of mother in law of PW 10 Kailasben. Once it is held that it was the accused who had taken deceased Niyati from the physical custody of her mother Kailasben at 6.00 PM on 29.4.2003 and the accused did not return the said minor girl, and once it is shown that the deceased was only 1 year and 7 months old as per the birth certificate at Exh. CC 1/2005 CAV Judgment Page # 16 55 issued by the Malekpur Gram Panchayat and the deceased was not able to speak beyond the word “mummy”, any possibility of such 1½ year old girl returning on her own or going to any other place on her own is absolutely ruled out. 10. However, it is not necessary to rest the prosecution case on the absence of any explanation from the accused at the trial. The evidence of PW 13 Revabhai Prajapati at Exh. 54 from whose provision store the accused purchased biscuits and the evidence of PW 9 Binalben Dineshchandra Vyas at Exh. 42 strengthen the prosecution case that the deceased was with accused in the evening. Mr Supehia for the accused submitted that the statement purported to be given by Binalben before the police was not given by Binalben herself, but by her father. However, from the evidence of the Investigating Officer who recorded the statement and the evidence of Binalben, it is clear that the statement was given by her, but obviously because Binalben was aged about 14 years, the statement was given in the presence of her father and what Binalben had stated CC 1/2005 CAV Judgment Page # 17 before the police was conveyed by her father as she had become nervous on account of presence of the police. That, however, does not detract from the veracity of the evidence given by Binalben at the trial before the Court which in substantial parts is in conformity with her statement before the police and which has not suffered from any major contradictions. The prosecution also led evidence of PW 5 Chaman Fakirbhai at Exh. 35 wherein he has clearly stated that the people in the village had gathered together at the residence of the father of the deceased and that since the girl could not be traced, when the witness returned home at about 2.00 AM, the witness saw the accused in one locality. Hence, the witness took the accused to the residence of the father of the deceased. PW 6 Babubhai Umedbhai Prajapati at Exh. 36 and PW 8 Jayantibhai Patel at Exh. 41 confirmed that Chaman Fakirbhai had brought the accused to the residence of the father of the deceased and that upon inquiry by PW 8 Jayantibhai Patel, the accused replied that minor Niyati was on the platform (otla) near the well at the Brahmani Mata Temple. Hence, the father of the deceased, the aforesaid witnesses and other village people CC 1/2005 CAV Judgment Page # 18 went to the Brahmani Mata Temple and found out the dead body of the girl who was bleeding from the vagina. The defence has not been able to shake the credibility of any of the prosecution witnesses and not even a suggestion is made in the cross-examination of any witnesses to indicate any reason whatsoever for any of the prosecution witnesses to entertain any animosity against the accused. 11. We also find from the evidence of PW 11 Dr Hareshbhai Kantilal Patel who had performed the post-mortem on the deceased that he found blood stains on either side of the vagina of the deceased and that it was swollen and red and the muscles of the vagina were broken and ruptured. The case of death was shock on account of the vasovagal attack due to assault injury. The post-mortem note at Exh. 46 contained the following description of the injury against column No. 15 (injuries to the external genital) and column No. 17 (external injuries) :- 15. C/o Hed blood present around the vagina, Valva-Red. Both lakies – braised. On per Speculum Examin – hymen was ruptured Posteriorly. Full tear of ant.Vag – wall present Ex. Partial tear of post vaginal Wall CC 1/2005 CAV Judgment Page # 19 cotted blood present in vaginal sign of purging + ut. 17. Abrasion marked present on - 1) rt. Axillanyregion - 2) rt. Supraclaviadar region - 3) behind the rt. ear lobe. 12. A perusal of the above evidence leaves no room for doubt that the deceased girl aged 1 year and 7 months was sexually assaulted and that assault itself resulted into the death of the minor girl. Since the deceased girl was last seen together with the accused and it was at the instance of the accused that the father of the deceased girl and other village people could recover the body of the deceased, without anything more, the prosecution can be said to have proved the involvement of the accused in the offence. Finding of semen stains on the pyjama of the accused and also on the lehangi of the deceased go to fortify the aforesaid conclusion. Hence, the contention of the accused that semen stains could have been there on the pyjama of the accused for any other reason cannot be accepted as such stains cannot be seen in isolation and the presence of semen stains on the pyjama of the accused and also on the lehangi of the deceased girl aged 1½ years fit in with the prosecution case that it was the accused and CC 1/2005 CAV Judgment Page # 20 the accused alone who had committed the offence of rape. Once that conclusion is reached, since the very act of committing rape on the 1½ year old girl resulted in the death of the victim, the accused must be held liable for both the offences punishable under Sections 376 and 302 IPC. 13. Much has been contended on the basis that absence of medical examination of the accused is fatal to the prosecution case. Reliance is placed on the decisions in Rahim Beg vs. State of UP, AIR 1973 SC 343 and State of Gujarat vs. Mahmad @ Munno Usmanbhai Chauhan, 1996 (2) GLR 821. The decision in Rahim Beg (Supra) was rendered in the context of a case where the rape was alleged to have been committed by a fully developed man on the girl of 10 or 12 years who was virgin and whose hymen was intact and the Court held that the absence of injuries on the male organ of accused would point to his innocence. Apart from the fact that the decision of the Court in that case was based solely upon that factor as there were several other considerations which appeared to the Court as being inconsistent with the guilt of the accused, in that case, the Court specifically noted that no cogent explanation was offered as to why the two accused were not soon got CC 1/2005 CAV Judgment Page # 21 medically examined by the police. Similarly, in State of Gujarat vs. Mahmad @ Munno Usmanbhai Chauhan (Supra), the victim was a girl aged about 11 years and the accused was about 25 years old and this Court followed the decision of the Apex Court in Rahim Beg (Supra). In the facts of the instant case, however, such an explanation was not sought for from the Investigating Officer – PW 15 TK Patel (Exh. 58) as to why the accused was not sent for medical examination. In absence of any such question having been put to the Investigation Officer in his cross-examination, the defence cannot be permitted at this stage to find fault with the prosecution for not medically examining the accused after his arrest. 14. However, in the instant case, once it is held that the deceased girl aged 1½ years was last seen with the accused aged 18 years and none other than the accused is shown in the company of the deceased girl aged 1½ years from 6.00 PM to 2.00 AM and it is at the instance of the accused that the dead body of the deceased is recovered at CC 1/2005 CAV Judgment Page # 22 2.00 AM and the deceased is