CR.A/161720/2005 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1617 of 2005 For Approval and Signature: 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 ? ========================================================= AJIT RUPABHAI KOLI,GARDHARIYA - Appellant(s) Versus STATE OF GUJARAT & 1 – Respondent(s) ========================================================= Appearance : MR.M J.BAROT for Appellant(s) : 1 MR AJ DESAI APP for Respondent(s) : 1 ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 19/11/2008 ORAL JUDGMENT 1. Heard learned advocate Mr.Maulin J. Barot for the appellant and learned A.P.P. Mr.A.J. Desai for the respondent-State. CR.A/161720/2005 2/11 JUDGMENT 2. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), is directed against judgment dated 03.06.2004 passed by the learned Joint District Judge, Fast Track Court, Gondal in Sessions Case No.65 of 2002 by which, the learned Judge has convicted the appellant for the offence punishable under Section 376 for seven years R.I. and fine of Rs.5,000/-, in default, R.I. for six months. Further direction was also issued by the learned Judge that the appellant shall pay compensation the extent of Rs.50,000/- to the victim under Section 357 of the Code. 3. The short facts giving rise to the present case are as under:- 4. The complaint was given by prosecutrix wherein, she has narrated that she was allured by the appellant and by giving inducement and threat, she was taken from lawful custody of her guardian on 24.02.2001 at about 6:30 pm in the evening with a view to commit illicit intercourse with her. On the strength of the complaint given by prosecutrix, the investigation was set in motion. The investigating officer visited the place of incident and prepared Panchnama with regard to the scene of offence. Panchnama with CR.A/161720/2005 3/11 JUDGMENT regard to seizure of the clothes put on by the victim was prepared in the presence of the Panch witnesses and the clothes put on by the appellant were seized and Panchnama in respect thereof was prepared in the presence of the Panch witnesses. The victim was sent for medical examination. The muddamal which was seized was also sent to F.S.L. in order to obtain detailed analysis. On completion of the investigation and on receipt of the certificate from the hospital as well as the F.S.L. report, the appellant was chargesheeted for the offence punishable under Sections 363, 366 and 376 as well as Section 506(2) of IPC and, as the case was exclusively triable by the Sessions Court, the J.M.F.C., Gondal, on 26.07.2002, committed the case to the Sessions Court under Section 209 of the Code. On committal of the case to the Sessions Court, the same was numbered as Sessions Case No.65 of 2002. The charge against the appellant was framed vide Exh.6 for the offence punishable under Sections 363,366 and 376 of IPC and the appellant pleaded not guilty to the charge levelled against him. Therefore, the matter was set down for full- fledged trial before the learned Sessions Judge. 5. The prosecution has examined following witnesses in order to bring home the charge against the appellant to the present case. CR.A/161720/2005 4/11 JUDGMENT Sr. No. PW Names Exhs. 1. 1 Ranjanben Ramsinghbhai Chavda 12 2. 2 Jaysukhbhai Maganbhai Kalariya 14 3. 3 Bhagvatsinh Ishubha Zala 19 4. 4 Bharatsinh Baburao Patil 23 5. 5 Lilaben Jagmalbhai 24 6. 6 Jesabhai Jivanbhai 25 7. 7 Ramsangbhai Gandabhai 27 8. 8 Kalyanbhai Laxmanbhai Sekhalia 28 9. 9 Dr.Naimesh Chimanlal Patel 29/A 10. 10 Dr.Rashmikant Durlabhjibhai Shukla 34 11. 11 Ramcharandas Ganeshdas Nimbark 40 12. 12 Maganbhai Fakrubhai Jadav 42 The prosecution has also produced following documentary evidence to the present case in order to bring home the guilt against the appellant. Sr. No. Documents Exhs. 1. The complaint given by Ranjanben Ramsangbhai Chavda 13 2. Seizure of cloths put on by the victim 15 3. Panchmana of the place of incident 16 4. Panchnama of arrest of the appellant 17 5. Panchnama of seizure of cloths put on by the appellant 18 6. Extract of Station diary 22 7. Medical report of the victim 30 CR.A/161720/2005 5/11 JUDGMENT Sr. No. Documents Exhs. 8. Medical certificate issued to the victim 32 9. Examination report of the appellant 35 10. Certificate issued to the appellant 37 11. F.S.L. report 45 12. Serological report 46 6. The learned Judge, at the conclusion of trial, recorded the statement of the appellant under Section 313 of the Code and narrated the incriminating circumstances against him. The appellant contended that a false case was foisted on him and he has been falsely implicated in the commission of offence. 7. The learned Judge, after considering the entire evidence on record of the case, more particularly the deposition adduced by the prosecutrix vide Exh.12, came to the conclusion that on 23.12.2001, one Jesabhai Jivanbhai Koli, by giving inducement and threat, kidnapped the complainant from the legal guardianship of her parents and kept her in the house of the appellant-Ajitbhai. On 28.12.2001, said Jesabhai went to work and appellant-Ajitbhai came to the prosecutrix in order to hide from her parents and took her to a field and by showing knife and after threating her, committed rape on her. On 25.01.2002, Ajitbhai did not permit prosecutrix CR.A/161720/2005 6/11 JUDGMENT to sleep with Jesabhai and allowed her to sleep alone in the veranda and after threating the prosecutrix, again, the appellant raped her in the cart. Ultimately, on 26.01.2002, she informed Jesabhai about such incident. On 28.01.2002, Jesabhai and prosecutrix left the house of the appellant and gone to Vankaner and at night, they come to Khampalia with Mantri-Bachubhai and others in their jeep and after dropping Jesabhai to Vadi, she was dropped to her uncle's home at Lakhtar where she has filed complaint on 04.02.2002. The prosecutrix was allured by the appellant on 23.12.2001 and after giving inducement as well as intimidation to her, took her from the guardianship of her parents with a view to commit illicit intercourse with her and thus, the appellant has committed the offence punishable under Section 376 of IPC. The deposition adduced by the prosecutrix gets necessary support or corroboration from the deposition adduced by Dr.Naimishbhai Chimanlal Patel PW-9 at Exh.29/A and the deposition given by Dr.Rashmikant Durlabhjibhai Shukla PW-10 at Exh.34 to the present case and as the necessary corroboration to the prosecution story, indicating the involvement of the appellant in the commission of offence, is established by the prosecution, the learned Judge convicted the appellant for the said offences. It is held by the learned Judge that even though the CR.A/161720/2005 7/11 JUDGMENT corroboration is not required to be established by the prosecution, there is ample corroboration to the prosecution story in the form of Panchnama of the place of incident, Panchnama and recovery of the cloths put on by the victim as well as the appellant, medical report of the victim as well as of the appellant and the F.S.L. report and thus, the learned Judge held that each and every link has been established by the prosecution to indicate the involvement of the appellant in the commission of offence and, therefore, the learned Judge convicted the appellant for the offence punishable under Section 376 of IPC for a period of seven years' R.I. and fine of Rs.5,000/-, in default, R.I. for six months. 8. The learned advocate, representing the appellant, submitted that the prosecution has examined the victim vide Exh.12. However, the deposition adduced by the victim is not supported by any other independent witnesses so as to prove the involvement of the appellant in the commission of offence. The deposition adduced by the victim does not inspire the confidence so as to convict the appellant for the commission of offence punishable under Sections 363,366 and 376 of IPC and thus, the learned advocate submitted that the appellant is required to be exonerated for the offence punishable under Section 376 of IPC. The learned advocate submitted that while CR.A/161720/2005 8/11 JUDGMENT passing the order of conviction, the learned Judge has not taken into consideration the entire evidence adduced by the prosecution in its proper perspective and, therefore, the judgment and order passed by the learned Judge is required to be quashed and set aside. The learned advocate submitted that the learned Judge has not properly appreciated the evidence on record of the case and the material omission and contradictions in the deposition adduced by the prosecution and the benefit of the same is required to be given to the appellant. Thus, the learned advocate submitted that considering the evidence on record of the case, the appellant be exonerated for the offence punishable under Section 376 of IPC and he be set at liberty forthwith. 9. Learned A.P.P. Mr.A.J. Desai representing the State placing reliance on the deposition adduced by the prosecutrix vide Exh.12 and submitted that the prosecutrix has indicated as to in what manner the offence was committed by the appellant and how he was involved in the commission of offence punishable under Section 376 of IPC. In view of the settled legal position, the learned A.P.P. submitted that there is no need for corroboration to the deposition adduced by the prosecutrix. However, if the corroboration is required to be taken into consideration then there is ample corroboration in the form of CR.A/161720/2005 9/11 JUDGMENT depositions adduced by Dr.Nimesh Patel vide Exh.29/A and Dr.Rashmikant Shukla vide Exh.34 to the present case. The doctors issued the certificates to the victim as well as to the appellant. The prosecution has also produced the documentary evidence such as Panchnama of the place of incident vide Exh.16, Panchnama of the cloths put on by the appellant vide Exh.18, the medical report of the victim vide Exh.30 and medical report of the appellant vide Exh.37 as well as the F.S.L. report vide Exhs.45 and 46 to the present case. Thus, considering the entire evidence on record of the case, the prosecution has established the involvement of the appellant in the commission of offence. As the learned Judge has not committed any error or infirmity while dealing with the evidence adduced by the prosecution, the order passed by the learned Judge is required to be upheld and the appeal is required to be dismissed. 10. I have Heard learned advocate Mr.Maulin Barot for the appellant and learned A.P.P. Mr.Desai for the respondent-State at length. I have also perused the evidence on record of the case. 11. Considering the evidence adduced by the prosecution, more particularly the deposition adduced by the victim at Exh.12, it becomes clear that the appellant induced the victim on 23.12.2001. After inducing the victim, he took CR.A/161720/2005 10/11 JUDGMENT her from the lawful custody of her parents with a view to commit illicit intercourse with her. Considering the aforesaid facts and circumstances of the case and the other corroborative evidence, I am of the view that the prosecution has established the involvement of the appellant in the commission of offence punishable under Section 376 of IPC. The prosecution has examined the other witnesses as well, but the depositions adduced by Dr.Naimish Patel vide Exh.29/A and Dr.Rashmikant Shukla vide Exh.34 are significant. Considering the evidence adduced by both the doctors, it becomes clear that the victim was allured by the appellant and after giving inducement, rape was committed on the victim. On the date of incident, the victim was below the age of 16 years. I have further considered the documentary evidence produced in the present case such as Panchnama of place of incident at Exh.16, Panchnama of the cloths put on by the appellant at Exh.18, Panchnama of the cloths put on by the victim vide Exh.15, certificate issued to the victim vide Exh.30 and the certificate issued to the appellant vide Exh.37 as well as the F.S.L. report and the serological report vide Exhs.45 and 46. 12. Considering the aforesaid documentary evidence, I am of the view that the documentary evidence further provide corroboration to the CR.A/161720/2005 11/11 JUDGMENT prosecution story indicating the involvement of the appellant in the commission of offence. As the prosecution has established the entire chain connecting the appellant with the commission of offence punishable under Section 376 of the IPC, no interference is called for in the order passed by the learned Additional Sessions Judge as the order cannot be said to be erroneous or suffers from infirmity. 13. Therefore, I up-hold the order passed by the learned Judge convicting the appellant for the offence punishable under Section 376 of IPC for seven years R.I. with fine of Rs.5000/-, in default, further R.I. for six months. 14. In view of the aforesaid facts and circumstances, the appeal preferred by the appellant is without any substance and the same is hereby dismissed. The Muddamal is to be destroyed in terms of order dated 03.06.2004 passed by the learned Joint District Judge, Fast Track Court, Gondal in Sessions Case No.65 of 2002. (H.B.ANTANI,J.) Hitesh