CR.A/1237/2004 1/87 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1237 of 2004 For Approval and Signature : HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= KISHORKUMAR MANUBHAI CHAUHAN - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR BP MUNSHI for Appellant(s) : 1, MR PD BHATE, LD.APP for Respondent (s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 28/12/2007 CAV JUDGMENT 1. The appellant is the orig.accused no.1 of Sessions Case No.236 of 1996 (hereinafter referred to as 'the appellant') decided on 21st July 2004 by the learned Sessions Judge, Mehsana. Two accused persons were chargesheeted and prosecuted but the orig. accused no.2-Janakkumar Babulal Barot expired CR.A/1237/2004 2/87 JUDGMENT pending the trial. Therefore, the trial against him was treated as abated. The learned Sessions Judge convicted the appellant herein for the charge of offences punishable under Sections 376 and 306 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- and in default of payment fine to undergo further simple imprisonment for one month for the offence punishable under Section 376 of the Indian Penal Code; and so far as the offence punishable under Section 306 of the Indian Penal Code is concerned, he is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- and in default of payment of fine, he is ordered to undergo simple imprisonment for one month. The learned trial Judge has ordered both the sentences to run concurrently. The learned trial Judge has held that the appellant had committed the aforesaid offences along with the orig.accused no.2-Janakkumar Barot (deceased). Originally both the accused persons were alleged to have committed the offences punishable under Sections 452, 376, CR.A/1237/2004 3/87 JUDGMENT 506(1), 306 read with Section 114 of the Indian Penal Code and it was held to have been proved that both the accused persons had committed rape on the victim-deceased and under the shock of the heinous crime committed on her, the victim committed suicide at her residential premises. 2. The judgment and order of conviction and sentence have been challenged by the appellant on various grounds as mentioned in the memo of appeal and Shri B.P. Munshi, learned counsel appearing with Shri H.D. Chudasama for the appellant, has taken me through all those grounds of challenge as well as the oral and documentary evidence led during the course of trial. It is submitted by Shri Munshi that the finding recorded by the learned trial Judge is erroneous, including the settled legal position qua the law as to the appreciation of evidence. The infirmities in the evidence led and the lacunas left by the Investigating Agency resulting into serious prejudice to the appellant, have been ignored by the learned trial Judge while recording the finding of the CR.A/1237/2004 4/87 JUDGMENT guilt. The internal conflicts and inconsistencies in the evidence led by the prosecution, according to Shri B.P. Munshi, are sufficient to reach to a conclusion that the accused might have been implicated falsely in the crime by PW-1 Motibhai Amibhai, a suspended Police Constable of Kalol Police Station (North Gujarat). It is submitted that the written arguments and the authorities cited placed before the learned trial Judge practically have been ignored while dealing with the case of the prosecution. The submissions of Shri Munshi in nutshell are as under : (i) The verbose and meticulously detailed detailed complaint given by the victim- deceased being also a dying declaration along with the statement of the victim- deceased recorded by the Executive Magistrate in the Civil Hospital have been wrongfully considered as reliable piece of evidence for basing conviction by the learned trial Judge. The procedural infirmities, conflicts and CR.A/1237/2004 5/87 JUDGMENT improvements in these two statements made by the victim-deceased in the background of the conduct of PW-1 Motibhai Amibhai and the conduct of the victim-deceased immediately prior to the alleged incident and her admission in the Civil Hospital at Ahmedabad at the earliest stage, make both the aforesaid statements in the nature of produced as dying declarations, as untrustworthy and unreliable. (ii) The delay, in informing the police, deliberately caused by PW-1 who, according to the prosecution, had reached at the spot of the incident within a couple of minutes of commission of suicide, makes the sub-stratum of the story of the prosecution doubtful; otherwise PW-1 Motibhai could have informed the Kalol Police Station, which is his Head Quarter during suspension period, in couple of minutes or he himself could have informed either Kalol Police or the Police personnel who were CR.A/1237/2004 6/87 JUDGMENT on duty at the Civil Hospital. The victim-deceased could have been taken to Kalol Hospital first/initially. As PW-1 Motibhai was all throughout in the company of victim-deceased, he had an ample opportunity to tutor her so that he can exonerate himself from explanatory situation and implicate the accused persons who were inimical to him. The landlord of the victim-deceased and her neighbours have not supported the prosecution case as to the involvement of the accused persons. Evidently, PW-1 is unable fully and convincingly to corroborate the alleged dying declarations and the inherent inconsistencies emerging from three crucial pieces of evidence i.e. two statements of victim-deceased and the deposition of PW-1 Motibhai, falsifies the prosecution story. (iii) There is even conflict in the case of the prosecution as to the number of persons involved in the offences as CR.A/1237/2004 7/87 JUDGMENT alleged and their active participation. The learned trial Judge has not appreciated various probabilities which go to the root of the trustworthiness of both the dying declarations, evidence of PW-1 Motibhai and those which support the prosecution theory. If the history given by the victim-deceased to the doctor of Civil Hospital is perused, the same is either inconsistent or conflicting with the story told to the Executive Magistrate by her in her dying declaration, which needs serious scrutiny. This Court while dealing with the appeal under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, is empowered to appreciate the entire evidence afresh. If the deposition of PW-1 Motibhai transpires to be unreliable piece of evidence, the appellant deserves acquittal. If the Court is able to perceive some shadow of doubt qua the evidence available in the nature of dying declarations, then also the CR.A/1237/2004 8/87 JUDGMENT appellant deserves to be acquitted. (iv) Some crucial aspects which could have linked the appellant with the crime sufficiently were not touched at all by the Investigating Agency and the accused persons have a reason to believe that as the suspended Police Constable of the very Kalol Police Station was active and perhaps had link with the act of suicide committed by the victim-deceased, certain investigation on crucial aspects has not been carried out in the present case. The photographs of the premises (produced during the course of hearing) where the incident occurred and the entire portion of the building where this premises is located, falsifies the theory of entry of about five persons in the residential premises of the victim- deceased or any person other than PW-1 Motibhai, including appellant; so also, the theory of any hubbub. (v) The medical evidence collected qua the evidence of rape does not support the CR.A/1237/2004 9/87 JUDGMENT case of the prosecution. The report of the Forensic Science Laboratory nullifies the theory of rape; and that too by two persons. The prosecution is under obligation in such cases to prove that the act was suicidal. Some possibilities show that the death may be homicidal. PW-1 Motibhai may have committed offence by pouring kerosene on the body of the victim-deceased or on account of the conduct of PW-1 Motibhai, the victim-deceased might have committed suicide. There is ample evidence on record to show that this PW-1 Motibhai was a regular visitor of the house of the victim-deceased. The victim-deceased was residing once in village Panchot, Taluka Kalol (North Gujarat), and then she had shifted to her parental village at Nardipur. The social character of the victim-deceased and her conduct qua her parents and children, which has been brought on record, put the victim as a witness on a lower pedestal compared to other victims approaching the Police or CR.A/1237/2004 10/87 JUDGMENT the Court alleging commission of rape. The panchnama of the body of the deceased at Ex.21 to some extent nullifies the theory of use of force by the offender allegedly committing rape. It appears that somebody had sprinkled kerosene on the body of the victim- deceased, otherwise the private part of the body of the victim-deceased would not have sustained burns of higher degree when the hairs of the victim- deceased mainly had not been burnt and even “Bindi” on her forehead had remained intact. The learned trial Judge has not appreciated the crucial and critical aspects of evidence in proper perspective which has landed him on an incorrect conclusion. 3. Shri P.D.Bhate, learned Additional Public Prosecutor, has submitted that the finding of guilt has been recorded mainly on the dying declaration recorded by the Executive Magistrate at Civil Hospital in couple of minutes of arrival of the patient in the CR.A/1237/2004 11/87 JUDGMENT hospital. The officer, who had recorded the statement, had taken due care and caution before recording the statement of the victim- deceased and when the learned trial Judge has found that the allegations which are made against the appellant in the dying declaration recorded by the Executive Magistrate find corroboration from the contents of the complaint which is again a dying declaration, the judgment and order of conviction and sentence cannot be said to be based on erroneous findings. The presence of the accused persons i.e. present appellant and the orig. accused no.2, proved to be near the house of the victim-deceased, is an important corroborative piece of evidence and there was no reason for the learned trial Judge to disbelieve PW-1 Motibhai, a suspended Police Constable. The terms between PW-1 Motibhai and the appellant were not such inimical that he may implicate the accused persons falsely by concocting the story. Merely because PW-1 Motibhai could have informed Kalol Police Station immediately or within a reasonable time, does not make the FIR in question CR.A/1237/2004 12/87 JUDGMENT doubtful. The presence of PW-1 Motibhai all throughout also does not make him a partisan witness. So the finding of guilt recorded by the learned trial Judge is not required to be disturbed. The Executive Magistrate had taken care to verify the endorsement made by the doctor on the letter of requisition received by him. Fortunately, the Executive Magistrate was present in the Hospital for recording dying declaration of some other victim and therefore, without any delay, the dying declaration in the present case has been recorded by the Executive Magistrate. There was no reason for the victim to agree with the proposition made by PW-1 Motibhai with regard to implication of about five persons in the crime initially. For short, according to Shri P.D. Bhate, learned Additional Public Prosecutor, the conviction is required to be upheld. 4. Further, according to Shri P.D. Bhate, the medical evidence is an opinion evidence and when the direct evidence in the nature of dying declarations, was available before the CR.A/1237/2004 13/87 JUDGMENT learned trial Judge, the learned trial Judge rightly held that there is sufficient evidence to link the accused with the crime. It is settled legal position that if the Court is able to listen the ring of truth in the dying declarations made by the victim-deceased and the statements recorded in the nature of dying declarations are found otherwise admissible under Section 32 of the Indian Evidence Act, the accused can be linked with the crime and there is no need to seek any corroboration. Seeking of corroboration in the cases based on dying declaration, in a given circumstance, is the rule of prudence, and not of law. Thus, according to Shri P.D.Bhate, learned Additional Public Prosecutor, there is no substance in the appeal and, therefore, it is required to be dismissed. 5. To appreciate the rival contentions, it would be beneficial to state the case of the prosecution in brief, which is as under : 5.1 The incident in question had occurred on 13th November 1995 and for the last 15 days from the date of incident, the victim-deceased was CR.A/1237/2004 14/87 JUDGMENT residing as a tenant in the house of one Dhanjibhai Patel of village Nardipur, Paliyad Road, Tal. Kalol, Dist. Gandhinagar. As regards her social status, the victim-deceased was driven out by her husband from his house. Their children were residing with her husband. Prior to occupying the house of Dhanjibhai Patel at Nardipur, she was residing at Panchot, Taluka Kalol. 5.2 On the date of incident, she had gone to Kalol from Nardipur for the purpose of purchasing grocery articles. At about 06-30 p.m., she wanted to return from Kalol to Nardipur and so she went to Kalol Bus Stand to board a bus to Nardipur. At that time, she realised that the present appellant and the orig.accused no.2- Janakkumar Barot (deceased) were following her. She knew them since earlier time when she had an occasion to go to Kalol GIDC area in search of some job. At that time, the appellant herein had come in her contact. She was already knowing orig.accused no.2-Janak Barot as the friend of appellant herein. The victim-deceased boarded the bus destined to CR.A/1237/2004 15/87 JUDGMENT Mansa from Kalol and reached Nardipur at about 07-00 p.m. Both the accused followed the victim-deceased on two scooters and when the victim-deceased entered into her house, both the accused persons entered the house of the victim-deceased and threatened her and thereafter, both of them committed rape one after another on her. Because of the tortious act and the rape committed on her, she was shocked and felt ashamed, and committed suicide. Initially, the complaint was registered for the offences punishable under Sections 452, 376, 506(1), 107 and 114 of the Indian Penal Code. But after the death of victim-deceased, the police added the charge of offence punishable under Section 306 of the Indian Penal Code. It is alleged that when the accused persons, after committing rape were leaving the house of the victim-deceased, both of them were seen by PW-1 Motibhai Amibhai on the scooter which was parked and when PW-1 Motibhai Amibhai reached where the victim- deceased was residing, he saw the victim- deceased ablazed. PW-1 Motibhai with a large quilt extinguished the fire and saved the CR.A/1237/2004 16/87 JUDGMENT victim-deceased; and with the help of one neighbour namely PW-2 Dahyaji Jashaji Thakor and one Rajubhai Gokaldas Patel alias Gokabhai Patel, managed to put the injured victim into the jeep car brought by Rajubhai Gokaldas Patel at the instance of PW-1 Motibhai and thereafter, she rushed and shifted to Civil Hospital at Ahmedabad. It is the say of the prosecution that in the Civil Hospital, the victim-deceased had given history as to the incident and and her dying declaration came to be recorded and thereafter also the complaint. 5.3 To bring home guilt to the accused, the prosecution examined 10 witnesses. Five of them are doctors i.e. PW-6 Dr.Nayankumar Natvarlal Parikh(Ex.60); PW-8 Dr.Rameshchandra Bhagubhai Shah (Ex.65); PW-9 Dr.Vikas Kanval Kishor (Ex.68); PW-3 Dr.Satish Amrutlal Patel (Ex.38); PW-7 Dr.Jayantilal Virjibhai Satapara (Ex.63); and PW-10 Investigating Officer Savjibhai Jayrambhai Vadhasiya (Ex.71). The prosecution examined other witnesses namely PW-2 Dahyaji Jashaji Thakor, one of the tenants residing in the same building and CR.A/1237/2004 17/87 JUDGMENT adjoining the premises rented to the victim- deceased, has been examined vide Ex.18. The jeep car driver and also other persons who had helped in shifting the victim-deceased to the hospital, including neighbour Rajubhai Gokaldas Patel, have not been examined. PW-4 Ranjitsinh Virsangbhai Gohil examined vide Ex.41 by the prosecution, was the Executive Magistrate, who had recorded the dying declaration of the victim-deceased on 13th November 1995. PW-5 Girishbhai Mulchanddas Patel, examined vide Ex.58 is a panch witness who has been examined to prove the panchnama of the scene of incident at Ex.59. The prosecution mainly relies on two dying declarations as mentioned earlier as well as the deposition of the PW-1 Motising Amibhai as per Ex.17. The documentary evidence made available to the trial Court comprised of (i) complaint given by the victim-deceased at Ex.72; (ii) the panchnama of scene of occurrence at Ex.59; (iii) dying declaration recorded by the Executive Magistrate at Ex.44; (iv) Inquest Panchnama at Ex.25; (vi) Certificate of Cause of Death issued by the CR.A/1237/2004 18/87 JUDGMENT doctor at Ex.27; (vii) Medical Certificates of both the accused persons, including the appellant at Exs.29 and 30 respectively; (viii) panchnama of recovery of clothes and physical conditions of appellant and orig. accused no.2 at Exs.22 and Ex.24; (ix) the forwarding letter to Forensic Science Laboratory is at Ex.31; (x) the report of Forensic Science Laboratory including the forwarding letter is at Ex.37. One another document which appears to be important and relevant is Forensic Science Laboratory (mobile) report and the same is at Ex.23. A report forwarded to the Investigating Officer Shri Vadhasiya by P.S.O. Kalol Taluka Police Station is at Ex.20. Here it is pertinent to note that the FIR is of 14th November 1995 and the offence was registered at 17-15 hrs. on 14th November 1995. This fact emerges from one document at Ex.19. One entry in the Police Station was registered as “Janva Jog” entry bearing No.109 of 1995 dated 14th November 1995 at about 08-55 a.m. When the Court is dealing with the appeal against the judgment and order of conviction and sentence preferred under CR.A/1237/2004 19/87 JUDGMENT Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, the entire evidence is required to be read and gone through before the Court can reach to a just conclusion and that is the endeavour of Shri B.P.Munshi as well as Shri P.D. Bhate, learned Additional Public Prosecutor. True it is that if the Court is in agreement with the findings recorded by the learned trial Judge, the Court may not assign its reasons while recording the agreement, but at the same time, may include the grounds as to why the finding of guilt is required to be confirmed. While dealing with the appeal preferred by a convict, normally the Court should give a fresh look from all the angles to the evidence led by the prosecution in the background of the sub- stratum of the story of the prosecution and while doing so, the Court is to keep in mind the defence plea and all other relevant probabilities emerging from the record of the case even though a particular specific plea may not have been raised as a defence plea. The Appellate Court has to set out sound reasons for recording its ultimate conclusion CR.A/1237/2004 20/87 JUDGMENT and if it is not possible to conclude that the prosecution has established its case beyond reasonable doubt, obviously the accused is entitled to get the benefit. 6. In view of the aforesaid submissions and factual aspects, the following main points crop up for consideration : (i) Whether both or any one of the dying declarations given by the victim- deceased tendered in evidence can be held to be voluntary and trustworthy ? (ii) Whether both or any one of the dying declarations can be relied upon to connect the appellant with the crime ? (iii) If the Court finds that the dying declarations suffer from infirmities, whether the infirmities pointed out to the Court are serious and capable of exclusion of dying declarations from consideration ? (iv) Whether the version of any material prosecution witness examined in CR.A/1237/2004 21/87 JUDGMENT respect of facts and sub-stratum of story of prosecution and the conflict in evidence of material witnesses examined, substantially affect the story of the prosecution ? (v) Whether the documentary evidence relied upon by the prosecution has an impact on the ultimate theory canvassed by the prosecution, including the opinion evidence tendered by the prosecution during trial ? 2. On a close scrutiny of the evidence, it transpires that as such there would have been three statements of the victim-deceased on record, out of which one statement which the victim-deceased could have made or must have made immediately after the incident on arrival of her neighbours or while she was being shifted to the Civil Hospital after lifting her in a large quilt and putting her into the jeep-car arranged by PW-1 Motibhai, has not come on record. It is not possible to assume that she might have opened her mouth for the CR.A/1237/2004 22/87 JUDGMENT first time when she was interrogated by the doctor of Civil Hospital while recording history. It is the say of the prosecution that the offence had occurred between 07-00 p.m. and 07-30 p.m. on 13th November 1995; and thereafter, she was taken to Civil Hospital at Ahmedabad by PW-1 Motibhai. At about 09-45 p.m. on 13th November 1995, she was admitted in the hospital for treatment and this time is reflected in the case papers of the Civil Hospital and the name of PW-1 Motibhai is shown as a person who got the patient admitted. It is in evidence that the history was given by the injured victim herself to the doctor on duty immediately after she was admitted in the hospital. In that view of the matter, there are three statements of the victim-deceased : First in the nature of history recorded by the doctor of Civil Hospital; second, a statement recorded by the Executive Magistrate between 10-15 p.m. and 10-35 p.m. on 13th November 1995 at Civil Hospital; and the third, a detailed complaint given by her on 14th November 1995 to the Police Officer of Kalol Police Station. These CR.A/1237/2004 23/87 JUDGMENT three statements need evaluation being in the nature of dying declarations in the background of the oral evidence given by PW-1 Motibhai; PW-2 Dahyaji Jashaji Thakor; and some crucial portion reflected in the panchnama of the scene of occurrence drawn by the Investigating Officer. The Postmortem Note is at Ex.61. The treatment case papers of the victim-deceased of Civil Hospital at Ahmedabad, tendered in evidence and the Forensic Science Laboratory report in respect of analysis of various muddamal articles, are also there on record. It is pleaded specifically that as both the accused persons including the appellant committed rape, the victim-deceased under shock and loss of honour - a humiliation committed suicide. It is important to note that there is no iota of evidence to establish that rape was committed at all on the victim- deceased. The commission of rape was disclosed at a very initial stage at the time when she was being admitted in the hospital. In the history given by the victim-deceased, she specifically stated that she committed suicide as she was raped. The alleged rape must have CR.A/1237/2004 24/87 JUDGMENT been committed between 06-30 and 07-30 p.m. The victim-deceased was very well there in the Civil Hospital at 09-45 p.m. and her dying declaration was recorded by the Executive Magistrate in a couple of minutes on her admission in the Hospital and it was recorded during the time when she was undergoing the treatment. The examination carried out of clothes of both the accused persons by the Forensic Science Laboratory does not support the theory of rape as no incriminating things like semen, etc. were detected. Ex.31 is the forwarding letter sent by the Investigating Officer to the Forensic Science