CR.A/534/2000 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.534 of 2000 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? ============================================================== CHANDRAKANT ALIAS CHANDRO ALIAS JUTAL RAMABHAI VASAVA - Appellant Versus STATE OF GUJARAT - Respondent ============================================================== Appearance : MRS NISHA M PARIKH for Appellant. MR KT DAVE, APP for Respondent. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 27/01/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (“the Code” for short), is directed against judgment dated May 3, 2000 rendered by the learned Additional Sessions Judge, CR.A/534/2000 2/28 JUDGMENT Vadodara, in Sessions Case No.161 of 1999 by which the appellant is convicted for commission of offences punishable under Sections 363, 366, 376 and 506(2) of the Indian Penal Code (“IPC” for short) and sentenced to suffer R.I. for one year for commission of offence punishable under Section 363 IPC as well as R.I. for seven years for commission of offence punishable under Section 366 IPC and R.I. for ten years for commission of offence punishable under Section 376 IPC as well as R.I. for three years for commission of offence punishable under Section 506(2) IPC. It may be stated that though it is mandatory for a Court to impose punishment of fine while convicting an accused for commission of offences punishable under Sections 363, 366 and 376 IPC, the learned Judge has not held the appellant liable to pay fine at all. The learned Judge has directed that the sentences imposed on the appellant shall run concurrently. 2. In view of decision in the case of State of Punjab vs. Ram Dev, 2003 A.I.R. SCW 6947, the name of the victim is not mentioned in this judgment. 3. The facts emerging from the record of the case CR.A/534/2000 3/28 JUDGMENT are as under: The victim, at the time of incident, which took place on October 12, 1997, was residing near temple of Dashma situated in Village Rasulabad with her parents, brother and sisters. The school leaving certificate of the victim mentions her date of birth to be June 1, 1984 and that she has studied up to 4th Standard. Her father is doing business of selling bangles. On the day of incident, the victim went to house of Shantaben Patel at about 9.30 A.M. to bring buttermilk. She had carried a vessel, i.e. tapeli, to bring buttermilk. When she was returning home with the vessel containing buttermilk at about 10.30 A.M., the appellant, who was lying in wait for her near bushes of babul trees, caught her. The victim made her best efforts to free herself from the clutches of the appellant, but could not succeed. In that attempt, the vessel with buttermilk, which she was carrying, overturned and fell down on the ground, after which the appellant dragged her to a tuver field and threw the victim on the ground. The appellant, thereafter, lifted her petticoat and removed her nicker. The appellant also took off his pant and committed forcible rape on her. While rape was being committed, the victim was making attempts to free herself. Therefore, in CR.A/534/2000 4/28 JUDGMENT order to prevent her from shouting, the appellant gagged her mouth with a handkerchief as well as threatened her to kill if shouts were raised. After the rape was committed, the victim was experiencing acute pain in her vagina and almost fainted. Therefore, she was permitted to lie down at the spot up to 2.00 P.M. At about 2.00 P.M., the appellant took the victim to a secluded place situated near hedge and made her sit till 6.00 P.M. to 7.00 P.M. At about 7.00 P.M., the appellant took the victim to dela of one Vaniya situated in the sim of Village Amaratpura where his uncle was residing. At that time, the door of the dela was locked and no one was present at all. Therefore, the victim was made to sit near the door of dela. As the victim was totally exhausted, she had to lie down near the door. In the morning, when the victim got up, she did not find the appellant by her side and, therefore, escaped therefrom. She came to her house at about 9.00 A.M. and narrated the incident of rape on her to her parents. As is usual, she was looked down by her parents, who were not ready to help her. After about four days of the incident, it was decided to lodge the complaint, but as the parents of the victim were poor, they were apprehending fear from the appellant. Therefore, they approached Naginbhai CR.A/534/2000 5/28 JUDGMENT Viththalbhai Solanki, who was social worker of the village and Secretary of Vadodara District Rural Harijan Education Sangh. Mr.Solanki took the victim and her parents to the Office of the District Superintendent of Police, Vadoara (Rural). The District Superintendent of Police informed Vaghodiya Police and, therefore, the victim and her parents in the company of social worker Naginbhai went to Vaghodiya Police Station. As the parents of the victim were entertaining a doubt that the victim on her own had gone with the appellant, they instructed the Police to beat the victim and accordingly, the victim was beaten by the Police in presence of her parents. The complaint of the victim was got recorded by Police Sub Inspector of Vaghodiya Police Station. On the basis of the complaint of the victim, the offences punishable under Sections 363, 366, 376, IPC etc. were registered against the appellant. The victim was referred to Vaghodiya Primary Health Centre for examination where she was examined by Medical Officer Ms.Nehaben Desai. The clothes put on by the victim were seized under a panchnama and sent to Forensic Science Laboratory for analysis. The Investigating Officer recorded statement of those persons, who were found to be conversant with the facts of the case. It is relevant to notice that the CR.A/534/2000 6/28 JUDGMENT appellant absconded for a pretty long time and could be arrested only on March 19, 1999. At the time of arrest, panchnama of person of the appellant was drawn and his clothes were also seized. The samples of saliva, semen, etc. of the appellant were drawn and sent along with his clothes to Forensic Science Laboratory for analysis. On completion of the investigation, the appellant was chargesheeted in the Court of learned Judicial Magistrate First Class, Vadodara, for commission of offences punishable under Sections 363, 366, 376, 323, 342 & 506(2) IPC. As the offences punishable under Sections 366 and 376 IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Vadodara, for trial, on the basis of which, Sessions Case No.161 of 1999 was registered against the appellant. 4. The learned Additional Sessions Judge, Vadodara, to whom the case was made over for trial, framed necessary charge against the appellant at Exh.3. 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) the victim as P.W.-1 at Exh.8; (2) mother of the victim, i.e. Kamlaben Dahyabhai Bajaniya as P.W.-2 at Exh.13; (3) Dr.Rajendra Amaratlal CR.A/534/2000 7/28 JUDGMENT Gajjar, who had examined the appellant, as P.W.-3 at Exh.14; (4) panch Vijaybhai Narmdashanker Bhatt as P.W.-4 at Exh.17; (5) panch Budhabhai Gopalbhai Rathodiya as P.W.-5 at Exh19; (6) panch Manubhai Devjibhai Bhaliya as P.W.-6 at Exh.20; (7) Social Worker Naginbhai Viththaldas Solanki as P.W.-7 at Exh.22; (8) Medical Officer, who had examined the victim, i.e. Ms.Nehaben Chandrakant Desai as P.W.-8 at Exh.23; (9) panch Deepakkumar Natwarbhai Patel as P.W.-9 at Exh.31; (10) panch Bhavsingbhai Chhotabhai as P.W.-10 at Exh.33; (11) Principal of Primary School of Village Rasulabad where the victim had taken primary education up to 4th Standard, i.e. Ms. Hinaben Shanabhai as P.W.-11 at Exh.35; (12) Investigating Officer, i.e. PSI Mr. Mansukhlal Ramjilal Jeni as P.W.-12 at Exh.37; (13) Assistant Sub Inspector Mr.Vamjabhai Lallubhai as P.W.-13 at Exh.40; and, (14) Police Officer Mr.Naranbhai Someshwar Trivedi as P.W.-14 at Exh.41, to prove its case against the appellant. The prosecution also produced documentary evidence such as; complaint lodged by the victim at Exh.9; intimation sent by PSI, Vaghodiya Police Station, to Medical Officer to examine the appellant at Exh.15; report submitted by Medical Officer to PSI after examining the appellant at Exh.16; panchnama of place of incident at Exh.18; arrest panchnama of the appellant and CR.A/534/2000 8/28 JUDGMENT seizure of the clothes put on by him at Exh.21; intimation sent by PSI, Vaghodiya Police Station, to Medical Officer to examine the victim at Exh.24; report submitted by the Medical Officer after examining the victim at Exh.25; reports of analysis at Exh.28 to 30; panchnama of seizure of the clothes of the victim at Exh.32; school leaving certificate of the victim indicating that her date of birth was June 1, 1984 at Exh.36, etc. in support of its case against the appellant. 5. 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 the prosecution witnesses and recorded his further statement as required by Section 313 of the Code. In his further statement, the appellant claimed that he had enmity with the father of the victim over money disputes and, therefore, he was falsely implicated in the case. However, no defence evidence was led by him. 6. On appreciation of evidence adduced by the prosecution, the learned Judge held that in view of the CR.A/534/2000 9/28 JUDGMENT contents of school leaving certificate produced by the Principal of Primary School where the victim had studied up to 4th Standard, it was proved beyond reasonable doubt that on the date of the incident, the age of the victim was 13 years & 4 months. The learned Judge noticed that the incident of rape on her by the appellant was narrated by the victim in a natural manner without making any noticeable improvements and/or embellishments, and as defence was not able to impeach her credibility, the evidence tendered by her was worth accepting. After holding that corroboration is not a sine qua non for basing conviction under Section 376 IPC, the learned Judge held that the corroboration to the testimony of the victim was available in abundance in the form of her complaint as well as testimony of her mother. The learned Judge noticed that the victim, who was minor under 16 years of age, was taken by the appellant out of the keeping of her lawful guardian with an intent to force her to illicit intercourse and, therefore, the appellant was liable to be convicted for commission of offences punishable under Sections 363 and 366 IPC. The learned Judge noticed that before committing the rape and during the rape as well as thereafter, the victim was threatened with life and, therefore, the appellant was liable to be CR.A/534/2000 10/28 JUDGMENT convicted for commission of offences punishable under Section 506(2) IPC. According to the learned Judge, commission of offence punishable under Section 376 IPC was fully and satisfactorily established by the testimony of the victim and, therefore, the appellant was liable to be convicted for commission of offence punishable under Section 376 IPC. However, in view of the statement made by the victim that she was beaten by the Police at the instance of her parents, the learned Judge held that the commission of offence punishable under Section 323 IPC by the appellant was not established. The learned Judge considered the defence raised by the appellant that he was falsely implicated in the offences and came to the conclusion that the defence was not even remotely probabilized. In view of abovereferredo conclusions, the learned Judge has convicted the appellant for commission of offences punishable under Sections 363, 366, 376 and 506(2) IPC and imposed the sentences referred to earlier by judgment dated May 3, 2000, giving rise to instant appeal. 7. This Court has heard Ms.Nisha M. Parikh, learned counsel of the appellant, and Mr.K.T.Dave, learned Additional Public Prosecutor for the State, at length and CR.A/534/2000 11/28 JUDGMENT 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. 8. Before considering the arguments advanced at the Bar, it would be relevant to notice the principles of appreciation of evidence tendered by a victim of rape as laid down in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, A.I.R. 1983 SC 753. While explaining that corroboration to the testimony of the victim of rape is not a sine qua non for recording conviction of an accused under Section 376 IPC, the Supreme Court has made following pertinent observations in paragraphs 7 to 11 of the reported decisions. “7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v. State of Rajasthan, (1952) 3 SCR 377 at p. 386 : (AIR 1952 SC 54 at p. 57), has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court- "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before CR.A/534/2000 12/28 JUDGMENT there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, .... ... ... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 8. And whilst the sands were running out in the time-glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of 'logos' and 'ethos', has been necessitated. 9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the CR.A/534/2000 13/28 JUDGMENT Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :- (1) The female may be a 'gold digger' and may well have an economic motive- to extract money by holding out the gun of prosecution or public exposure. (2) She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males. (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account. (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex. (6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed. 10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the CR.A/534/2000 14/28 JUDGMENT urban as also rural society. It is also by and large true in the context of the sophisticated not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours, (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands' family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocent. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent. 11. In view of these factors the victims and their relatives are not too keen to bring the CR.A/534/2000 15/28 JUDGMENT culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye- witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Court's in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities- factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune.” In the light of abovereferredto principles, the arguments advanced at the Bar will have to be considered by this Court. 9. The plea that the place of incident is situated near the fields as a result of which, the incident could CR.A/534/2000 16/28 JUDGMENT have been witnessed by others if, in fact, forcible rape was committed by the appellant on the victim and, therefore, the Court should come to the conclusion that the victim was a consenting party, has no substance. The victim has clearly stated that when she was returning home after taking buttermilk from the house of Shantaben Patel, she was caught hold of by the appellant, who was lying in wait for her near bushes of babul trees. The victim has stated that after catching hold of her, she was dragged by the appellant to a tuver field where she was thrown on the ground and, thereafter, raped. The victim has narrated in her testimony that she had to lie down on the spot roughly about up to 2.00 P.M. as she was suffering acute pain in vagina. According to the victim, she was thereafter taken to a secluded place near a hedge where she was made to sit up to 7.00 P.M. and thereafter, taken on foot to another village where uncle of the victim was staying. According to the victim, the appellant had forced her to lie down near the door of the house of the uncle of the appellant as the house was locked from the outside. Though the victim is subjected to gruelling cross-examination, nothing could be brought on record by the defence to impeach her credibility. It is relevant to