CR.A/422/1986 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 422 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus YUNUS DAUD JOGIYAT & 1 - Opponent(s) ========================================================= Appearance : MR ND GOHIL, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR KB ANANDJIWALA for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE K.A.PUJ Date : 19/04/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. The present Criminal Appeal is filed by the State of Gujarat under section 378 of CrPC against the impugned CR.A/422/1986 2/42 JUDGMENT judgment and order of acquittal passed by the ld. Addl. Sessions Judge, Bharuch on 24.12.1985 in Sessions Case No.3/1985, whereby the ld. Trial Judge had acquitted the respondents accused from the charges of the offences punishable under sections 302, 376 and 114 of Indian Penal Code. 2. The State has assailed the impugned order of acquittal on various grounds stated in the memo of the appeal, but mainly the say of the appellant State is that the order of acquittal passed by ld. Trial Judge is perverse and is based on incorrect appreciation of the oral as well as documentary evidence led during the trial. Ld. Trial Judge has committed gross error in not accepting the version of three eye-witnesses examined by the prosecution and other relevant circumstances emerging from record and evidence led by the prosecution. The ld. Trial Judge has considered various aspects while recording the acquittal of the accused. 3. The ld. APP Mr. ND Gohil appearing for the appellant State has taken us through the judgment under challenge. To appreciate the stand taken by the appellant State, it would be proper for us to narrate the facts of the case in brief; CR.A/422/1986 3/42 JUDGMENT (i) An offence came to be registered in the present case on the complaint filed by one Mohmed Hanif Ahmed Bera, resident of Village Kharod, Ta: Ankleshwar- real brother of deceased Farida. This Farida is also known as “Gori” (having fair whitish skin) and, therefore, the deceased Farida is referred by the witnesses as Gori and the ld. Trial Judge has also, at some places, has referred the deceased Farida as Gori. She was about 14 years of age on the date of incident i.e. 20.10.1984. The complainant, in the evening hours, was lying on his cot at his home when he was informed about the non-return of Farida who had gone in the sim of village Kharod to collect cow- dungs. Suraiya-sister of Farida was also at home and she informed the complainant about the non-return of Farida and therefore, they started searching deceased Farida. On the date of incident, deceased Farida and two prosecution witnesses namely Johra and Nafisa- girls practically of same age group, had gone to Baniavagha area to collect cow-dungs. It appears that said area was mostly used for grazing the cattle of the village and therefore, it was easy for the village girls to collect cow-dungs from that area and these three girls had gone to said Baniavagha area at about 3.00 p.m. P.W. Rupchand,servant of Mohmed Bhaiyat, probably serving as CR.A/422/1986 4/42 JUDGMENT a cattle-grazer, had also gone to the said area on that day to graze the cattle of his master Mohmed Bhaiyat and he was also there. All the three girls had returned from Baniavagha area after collecting cow-dungs. When they had gone at Baniavagha at 3.00 p.m., both the accused i.e. respondents herein were present there and they had attempted to converse with the girls. Description of the clothes put on by the accused was also available with the prosecution. (ii) After return of these girls from Baniavagha, Farida had expressed her wish to go again to Baniavagha for collecting some more cow-dungs and she was advised by her two friends i.e. Johra and Nafisa that she should not go alone and thereafter both the girls i.e. Johra and Nafisa returned to their respective homes. It is the say of the prosecution that both the girls Johra and Nafisa had again gone to Baniavagha to collect cow-dungs at about 5.00 p.m. and when they reached near the Bank of creek popularly known as “ Bhadiwali Khadi”, they show the accused persons pulling Farida and they were telling her to accompany them and Farida was refusing to go with them. Thereafter, she was dragged by the accused persons. It is the case of the prosecution that at that time, CR.A/422/1986 5/42 JUDGMENT Farida had put on Ijar (kurta) and frock popularly known as Punjabi Dress. Accused No.1 caught hold of the hands of Farida and pressed her mouth and accused No.2 caught hold of her legs and both the accused lifted Farida and took her to the Bhadiwali Khadi. It is the prosecution case that both these girls i.e. Johra and Nafisa as well as prosecution witness Rupchand who was grazing cattle there, chased the accused and thereafter they stood on the bank of Khadi and saw the incident. It is the prosecution case that Ijar put on by Farida was forcibly removed and she was raped by accused No.1. The accused No.1 had put on Lungi and he removed his Lungi to commit the rape. To prevent the shouts to see that resistance of Farida does not reach to anybody, accused No.1 with the help of accused No.2, throttled the neck by hands till her death. According to the prosecution, for throttling the neck of Farida, accused No.1 used one string ( nylon- synthetic string) which was asked by him from accused No.2 who in turn gave it to accused No.1 and which muddamal article was ultimately recovered by the Investigating Officer and was produced before the ld. Trial Judge as Muddamal article No.4. It is the prosecution case that all these three witnesses have witnessed the entire incident i.e. sexual assault on CR.A/422/1986 6/42 JUDGMENT Farida and thereafter, murder of Farida. It is the prosecution case that thereafter, these witnesses were threatened by the accused persons not to tell about the incident else they would be killed and thereafter accused ran way from the place of incident. That thereafter, both the girls i.e. Johra and Nafisa had returned to their respective homes and prosecution witness Rupchand had returned to his master's house with cattle and thereafter, he left for one another village Pardi situated just adjacent to his village Kharod where sister of this witness is residing. He stayed with his sister. (iii) According to the prosecution, the brother of the deceased Farida who is complainant, along with neighbours and about 25 village people, started searching Farida in the evening of 20.10.1984 and that dead body of Farida was found lying in Bhadiwali Khadi. Ultimately, the police was informed and offence came to be registered. Dead body of the deceased girl Farida was brought to her village and at his residence on a pony. Dead body of Farida was kept during night hours and complainant Mohmed Hanif thereafter went to Ankleshwar police Station on a motor cycle of one Siraj Motala and lodged his complaint CR.A/422/1986 7/42 JUDGMENT (exh.24) at 9.45 p.m. i.e. 21.45 hours on 20.10.1984. It was a strong belief of the complainant that her sister Farida is murdered after commission of rape on her. (iv) On filing of the complaint, the police started investigation. PSI of Ankleshwar Police Station namely Mr. UD Parmar came to village Kharod, took the custody of the dead body lying in the house of the complainant and attempted to collect the facts regarding the incident and names of suspects or assailants etc. He had inquired from Johra and Nafisa. It is the say of the prosecution that both Johra and Nafisa did not disclose the names of the accused persons as assailants as they were given threats by the accused persons. It is the say of the prosecution that in the early morning at about 3.00 a.m., the names of the accused were disclosed to the relatives of Farida. PSI Mr. Parmar drew inquest panchanama of the dead body between 7.30 & 8.30 p.m. and also a panchanama of the scene of offence. Medical Officer performed autopsy and it was found that neck of deceased Farida was throttled and a rape has also been committed on her. During the course of investigation, the police had recovered clothes of the deceased as well as of accused persons including the lungi that accused No.1 had put on at the time of CR.A/422/1986 8/42 JUDGMENT commission of offence. At the conclusion of investigation, police chargesheeted both the accused persons for the offences punishable under sections 302, 376 & 114 of the Indian Penal Code. Thereafter, Ankleshwar Police committed the case against the accused persons to the Court of Sessions at Bharuch. (v) It is necessary to mention that after committal of the case to the Court of Sessions, accused No.2 submitted an application before the ld. Sessions Judge, Bharuch requesting to tender pardon to him by making him approver and the ld. Sessions Judge sent the said application of accused No.2 to the ld. Chief Judicial Magistrate, Bharuch for taking necessary action and for granting pardon to accused No.2. The ld. Chief Judicial Magistrate thereafter granted pardon to accused No.2 on the strength of the disclosure of truth and real facts of the incident that had occurred at Baniavagha wherein girl Farida was raped and murdered. Accused No.2, accepting the pardon, has expressed his willingness to give necessary police statement and his statement under section 164 of CrPC ultimately came to be recorded by the ld. Chief Judicial Magistrate, Bharuch. The application made before the ld. Sessions Judge to grant pardon and CR.A/422/1986 9/42 JUDGMENT the willingness expressed by accused No.2 that he is ready to become a witness, are there on the record as mark B & C. The ld. Chief Judicial Magistrate, after recording statement of the accused No.2 on 26.02.1985, granted pardon under section 306 of CrPC and therefore, he was to be examined as a witness and the trial was to be proceeded against accused No.1. (vi) The trial Court ultimately framed the charge vide exh.5 against accused No.1 for the offence punishable under sections 302 & 376 of IPC and on denial of the charge, trial was commenced. Accused No.1, thereafter, challenged the order passed by the ld. Chief Judicial Magistrate, granting pardon to accused No.2 and this Court, ultimately allowed the said application of accused No.1 and quashed and set aside the order granting pardon to accused No.2. As the order granting pardon was turned down by this Court, the accused No.2 was supposed to be tried jointly with accused No.1 and, therefore, the ld. Trial Judge, after hearing the parties and considering the police papers, altered the charge and framed the charge against both the accused persons for the offences punishable under sections 302, 376 & 114 of Indian Penal Code. CR.A/422/1986 10/42 JUDGMENT (vii) The prosecution, thereafter, led oral as well as documentary evidence and the ld. Trial Judge, thereafter recorded statement of the accused persons under section 313 of CrPC putting pointed questions as to the incriminating evidence recorded against them. At the end of trial, ld. Trial Judge, vide impugned judgment and order, acquitted the respondents accused from the charges leveled against them. 4. The ld. Trial Judge has appreciated medical evidence in the background of the version placed by the three eye- witnesses examined by the prosecution and ultimately held that the evidence of none of these three eye witnesses is reliable. It is also held that none of these eye witnesses can be said to be an eye witness to the incident either of rape or of committing murder and all the three have been disbelieved by the ld. Trial Judge. For rejecting their evidence, the ld. Trial Judge has assigned various reasons and if they are stated in brief, they are :- (i) At the relevant time and place when alleged offence was being committed, the presence of all these witnesses was not there at the scene of offence. CR.A/422/1986 11/42 JUDGMENT (ii) There are circumstances to show that these witnesses have been got up witnesses and practically there is nobody who can be said to be an eye-witness to the incident. (iii) The conduct of all the three witnesses at the time of commission of offence is highly unnatural as well as their conduct subsequent to the incident allegedly seen by them is also contrary to the normal human conduct, especially when Johra and Nafisa were the friends of deceased Farida and they were practically of the same age group. (iv) Non-disclosure of the names of the accused by Johra and Nafisa both for a long time, is sufficient to raise doubt as to their presence at the scene of offence. (v) Injuries found by the doctor on the body of the person deceased does not corroborate the say of the eye- witnesses that a synthetic (nylon) string was used for throttling the neck of the deceased and that too after commission of the rape. (vi) The time factor materially runs against the theory placed by the prosecution especially in the background of the distance between the residential house of Nafisa, Johra and Farida and the place where they had gone to collect the cow-dungs. CR.A/422/1986 12/42 JUDGMENT (vii) The conduct of Rupchand is highly unnatural and there is material contradiction as to presence of both the accused persons in Baniavagha when all the three girls had reached to collect the cow-dungs at about 3.00 p.m. because the say of Rupchand is that at that relevant point of time when girls were there to collect the cow- dungs firstly, the accused persons were not there and on the other hand, the say of Johra and Nafisa is that both the accused were there and they had some conversation with the accused persons. (viii) The version of the Circle Inspector examined by the prosecution at Exh. 16 if is accepted, then it is not possible to believe that the scene of offence was visible from the place from where these three witnesses had witnessed the incident in question. (ix) The allegation that all these three witnesses were threatened by the accused persons is not found convincing. (x) That witness Rupchand is a planted witness, is the inference drawn by the ld. Trial Judge and his conduct qua his master or family members of the master on his return after grazing the cattle is not natural as well as the family members of his real sister residing at adjacent village Pardi is also not found natural. CR.A/422/1986 13/42 JUDGMENT (xi) Johra and Nafisa at least were able to point out the place where the offence was committed and there was no need to shout for Farida during the night hours by villagers and family members of Farida including her brother especially when Nafisa was accompanying this group of persons. (xii) Nafisa when accompanied Suraiya at initial hours of late evening to disclose the incident without naming the accused persons, this was the first available opportunity to Nafisa which she did not avail. (xiii) Statement of Rupchand has been recorded at a very late stage and at a very developed stage of investigation though he was available at the adjacent village Pardi and delay caused in recording his statement has not been properly explained by the prosecution. 5. Over and above the reasons assigned for not accepting the version of the above-said three witnesses, the ld. Trial Judge has also appreciated other aspects which were found relevant. These aspects are:- (i) No injury on genital organs of the accused No.1 was noticed when examined by the doctor. Normally when forcible intercourse is made with a teenager girl of CR.A/422/1986 14/42 JUDGMENT about 14 years, it may result into some injury on the genital organs of the accused. (ii) When it is the case of the prosecution that semen was found in the vagina of deceased Farida, it is possible to infer that the rape was actually committed. Even than, the lungi put on by accused No.1 recovered during investigation and identified by the eye-witnesses, was not found stained with semen during the analysis by Forensic Science Laboratory (FSL for short). (iii) The medical evidence contradicts the basic proposition of the theory placed by the prosecution such as use of synthetic string to throttle the neck and strangulate the girl Farida. (iv) The confessional statement of accused No.2 can not be read as substantive piece of evidence in favour of the prosecution because of the basic legal infirmities and retracted statement even otherwise is of very little value in the eyes of law and therefore, it is not sufficient to link accused No.1 with the crime and it would not be useful to hold accused No.2 guilty of the offence in the capacity of the abettor or a person carrying common intention with accused No.1. (vi) The say of the ld. Trial Judge is that the case of the prosecution should substantial stand on its own legs CR.A/422/1986 15/42 JUDGMENT as placed before the Court and the evidence led by the prosecution should be cogent. Unless the Court is able to record a finding that there is no possibility to draw the inference other than the guilt of the accused, only then, the accused should be held responsible for a criminal wrong. The ld. Trial Judge, while recording a finding that it is not safe to draw inference of guilt, has discussed the evidence led by the prosecution witnesses in detail mainly in paras 5 to 11 of the judgment, including the details reflected in the inquest panchanama and the evidence of doctor, autopsy report and also the evidence led by one prosecution witness who has allegedly seen the accused persons coming towards the village running at about 5.00 to 5.30 p.m. in the evening. 6. The ld. APP Mr. Gohil appearing for the appellant State has submitted that the findings recorded by the ld. Trial Judge are erroneous and are based on incorrect appreciation of evidence. There was no reason to disbelieve these three witnesses especially when there are no material contradiction. The ld. Trial Judge has tried to magnify the minor contradictions made by this witness by citing one decision of the Apex Court in the CR.A/422/1986 16/42 JUDGMENT case of Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat, AIR 1983 SC 753, and submitted that the Court should not give undue weightage to the minor contradictions. We would like to quote the part of the decision relied upon by ld. APP Mr. Gohil:- “......The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :- (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events, The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the CR.A/422/1986 17/42 JUDGMENT moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.” According to ld. APP Mr. Gohil, this is not a case of a solitary eye-witness. Three witnesses have corroborated each other. On the contrary, the ld. Trial Judge ought to have held that the story unfolded by these witnesses of the commission of rape, gets corroboration from the medical evidence because it is said by the doctor that the rape on the girl Farida was committed. The injury found on the body of the accused No.1 i.e. teeth bite marks noticed by the doctor, has not been properly appreciated and a false explanation given by the accused No.1 regarding this injury found on his CR.A/422/1986 18/42 JUDGMENT fore-arm, is sufficient to link the accused No.1 with the crime. Opinion of the doctor is clear that it is not necessary in all cases that the corresponding teeth marks on opposite side in semi-circular form are also found on the person accused. The doctor has opined that the injury found on the present accused i.e. accused No.1 was the bite marks and the accused has attempted to explain that he sustained this injury when he was driving auto- rickshaw. This false explanation gives an important clue or circumstance against the accused No.1 and in such a situation, the ld. Trial Judge ought not to have ignored the version of at least two eye witnesses namely Johra and Nafisa. It is in evidence, according to ld. APP Mr. Gohil, that these three girls were often visiting the sim of village Kharod and therefore, their presence in the company of Farida was not unnatural. So, both of them had disclosed their intention to go second time to collect cow-dungs, even then they might have decided to go again considering the fact that Farida must be alone and lonely in the said area. It appears, according to ld. APP Mr. Gohil, that the ld. Trial Judge has started assigning reasons presuming the innocence of the accused merely because the medical evidence as to the commission of rape by accused No.1 was not led by the prosecution. CR.A/422/1986 19/42 JUDGMENT The fact that the prosecution has examined doctors at initial stage, evidence led by these witnesses ought not to