CR.A/1056/1988 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1056 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= VENILAL HIRABHAI CHAUHAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR.HIREN M MODI for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/01/2008 ORAL JUDGMENT 1. This appeal is directed against the judgement and order dated 7.10.1988 rendered by learned Additional Sessions Judge, Surat in Sessions CR.A/1056/1988 2/13 JUDGMENT Case No.59/1988. 2. The appellant was original accused charged with offences punishable under Sections 376, 504, 506(2) of the Indian Penal Code. Learned Additional Sessions Judge by his impugned judgement convicted the appellant under Section 376 read with Section 511 of the Indian Penal Code as well as Sections 504, 506(2) of the Indian Penal Code. He sentenced the appellant to three years of rigorous imprisonment and also imposed fine of Rs. 500/-. 3. To establish the charge, prosecution examined several witnesses before the trial Court. 4. Gunvantbhai Chaganbhai-PW4, father of victim girl was examined at exh.14. He stated that his daughter was aged about 20 to 21 years on the date of deposition. She is dumb since birth. To express herself she can at the best make some sounds. On 28.11.1987 at about 2:30 in the afternoon, he was sleeping at his house. He had just returned from service. Victim girl was sleeping outside the house. He was woken up by his younger daughter Padma and was told that accused has dragged the victim inside the house of one Thakore Fakir. Witness could not get up immediately since he had kept awake till late at his service. When he ultimately went there he saw that front door of Thakore Fakir's house was CR.A/1056/1988 3/13 JUDGMENT closed. His house was right opposite his own house. He kicked open the door and entered the house. He found that the accused was lying on top of his daughter. His daughter was lying on the floor in the kitchen. The accused had removed his Pant. His one hand was on the mouth of victim. Victim's underwear was removed. Since he entered the house, the accused adjusted his Pant and ran away. At that time, he could see that his male organ was erect. The accused ran away by jumping over the fence. The witness thereafter, brought his daughter home. After the incident, the witness met the uncle of the accused and advised him to contact the father of the accused. Next day, he went to meet the father of the accused who resides in a village about 10 kms. away from his house. He narrated the incident to the father of the accused who assured him that he will meet the witness in about three days and will resolve the issue. Since the father of the accused did not contact the witness for three days, he lodged the complaint before the police. 4.1 In the cross examination, the witness stated that if the father of the accused had brought about a settlement, he would not have filed the complaint. The victim girl was missing for one day about two years earlier. When she was found, her clothes were torn. He admitted that there is a police outpost in his village. CR.A/1056/1988 4/13 JUDGMENT He admitted that his house is located in a street where there are other residential houses also and there is presence of other people through out the day on the road between two lines of houses. He denied that he has dispute with accused about the gutter lines. 5. Younger daughter of the complainant and sister of the victim one Padmaben Govindbhai-PW5 was examined at exh.16. She stated that on the date of incident, she was playing near the front door of the house. Her father was sleeping inside the house. At that time, her mother was away. Victim girl was sleeping on a Cot. At that time accused came and took her away in the house of Jasumatiben whose husband's name is Thakorebhai. The accused took his sister inside the house and closed the door. The witness therefore, tried to arouse her father. He did not get up immediately. She therefore, dragged him. Her father thereafter, pushed open the door of the house of Thakore Fakirbhai after which the accused jumped over the fence and ran away. 5.1 In the cross examination, the witness stated that the victim girl can express feeling of pain through signs, but cannot scream. She can however, make some sounds which could normally be heard from some distance. 6. Thakorebhai Fakirbhai-PW6(exh.17) and Jasuben CR.A/1056/1988 5/13 JUDGMENT Thakorebhai-PW7(exh.18) were examined to show that at the time when the incident took place both the husband and wife were away from their house and the house was empty. In fact, Jasuben-PW7 stated that she had only latched the house door from the front when she left in the morning to collect fodder for the cattle. She returned home at about 2:30 in the afternoon. Her husband had left home at 9 O' clock to graze their goats. 7. Shivkumar Dungarsinhji Parmar-PW3 was examined at exh.12. He was the principal in the school of deaf and dumb students. He was discharging the duties as a Principal since 1978. He had total service of 30 years. Every year, he came in contact to about 100 to 125 such students. He was called by the police for recording the statement of the victim girl. He and his co- teacher had tried to question the victim girl. She was unable to speak. Even upon being asked questions through sign language, she did not respond. She was also verbally asked her name and her father's name. She however, did not respond. The witness stated that victim girl was not able to understand anything and was not able to respond. She was mentally retarded. 7.1 In the cross examination, however, he admitted that he is not qualified to certify that girl was mentally retarded. CR.A/1056/1988 6/13 JUDGMENT 8. Dr. Krishnakant Chaganlal Gandhi-PW1 was examined at exh.8. He was the Doctor who had carried out the physical examination of the victim girl. He found that there were no external sign of injuries. The girl was however, fully matured. He found that her hymen was ruptured but could not state as to when the same would have happened. 9. Dr. P.R.Jain-PW2 was examined at exh.10. He was the Doctor who had carried out physical examination of the accused. He found no signs of external injuries. He found that accused was physically matured. He however, agreed that if a person had committed intercourse more than two days before, the wear and tear on the penis of the person would not be visible. 9.1 In the cross examination, he agreed that if the person has intercourse with a virgin woman whose hymen is intact, same may leave injury on the male organ which may be detected even after one week. 10.The prosecution had collected the clothes of the victim girl which she was wearing at the time of incident and also the soil where the alleged incident had taken place. These samples were sent for laboratory test. FSL report suggests presence of human blood on the CR.A/1056/1988 7/13 JUDGMENT underwear as well as petticoat of the girl. No semen or blood were however, found from soil. 11.On the basis of above evidence, learned advocate Shri Modi for the appellant submitted that learned Additional Sessions Judge committed grave error in convicting the appellant for offence punishable under Section 376 read with Section 511 of the Indian Penal Code. 11.1 He submitted that the victim girl was not examined which would be fatal to the prosecution. 11.2 It was submitted that both the Doctors Dr. Krishnakant Chaganlal Gandhi-PW1 and Dr. P.R.Jain-PW2 found no marks of injury either on the victim girl or on the accused. Thus belying on the theory of forcible intercourse. 11.3 It was submitted that FIR was lodged after much delay though police presence was in the village itself. FIR was lodged nearly after three days of incident. 11.4 It was contended that the prosecution theory is highly improbable. The incident happened in the afternoon in a thickly populated area. Even otherwise there were disputes between the accused and the complainant due to which the accused was falsely implicated. CR.A/1056/1988 8/13 JUDGMENT 12.On the other hand, learned APP Ms. Punani supported the conviction. She submitted that through reliable cogent evidence, it established the charge. It was contended that it is not necessary to prove rape or attempt of rape, there must be sign of injuries on the body of victim. Reliance in this regard was placed on the decision of the Apex Court in the case of Dastafir Sab and another v. State of Karnataka reported in (2004) 3 Supreme Court Cases 106. 13.From the evidence on record, it can be seen that indisputably victim girl was dumb. Through evidence of the complainant-PW4, father of the victim girl as well as of Padmaben-PW5, this aspect has been brought on record. In fact, there is no serious dispute raised about this issue by the defence also. From the evidence of witnesses, it can be gathered that victim girl was unable to speak or even scream loudly. She could at the best, make some muffled sounds when in distress. Additionally, Shivkumar Dungarsinhji Parmar-PW3 also stated that when he tried to help the police to record the statement of the victim girl, she was not responding to any questions put to her verbally or even by sign language. This witness had more than 10 years of experience as a Principal in Deaf and Dumb school. He was discharging such duties as teacher for more than 30 years. He CR.A/1056/1988 9/13 JUDGMENT along with his co-teacher had tried to enable the investigation to record the statement of the victim girl. His testimony therefore, that victim girl was not in a position to give answers to the questions put to her is thus relevant. It is true that this witness was not qualified to state that victim girl was mentally unsound or retarded. Nevertheless, his statement that victim girl was not able to comprehend the questions and give answers thereto is quite significant. Non-examination of the victim therefore, would not be a factor to damage the prosecution case. 14.In light of the above situation, if one assesses the evidence on record, it will become clear that the complainant was the eyewitness to the incident in question. He was sleeping in the house in the afternoon having come back from his service. He was woken up by his younger daughter who was playing outside the house. He was told that his elder daughter is being dragged by the accused in the house of Thakore Fakirbhai which is right opposite to his own house. The accused himself was residing in the neighborhood. After kicking open the front door and entering the house, he found that the accused was lying on top of the victim. The pant was pulled down and underwear of the victim girl was also removed. Accused thereafter, jumped over the fence and ran away. The witness at that time found that CR.A/1056/1988 10/13 JUDGMENT accused was in excited stage. His male organ was erect. 15.This testimony was corroborated by Padmaben- PW5. She was aged about 10 years on the date of incident. She had alerted her father when she saw that her sister was taken by the accused in house of Thakorebhai. She was specific on the aspect that front door of the house of Thakorebhai though was closed was not locked. She stated that she stood outside the house when her father had went inside. 16.The prosecution also examined Thakorebhai Fakirbhai-PW6(exh.17) and Jasuben Thakorebhai- PW7(exh.18) to show that at the time of incident, the husband and wife had left the house, that there was nobody at home and that front door of the house was closed but not locked. 17.All these aspects of the matter would show that prosecution established the allegations against the appellant insofar as attempt to rape is concerned. Though charge against the accused was of having committed offence punishable under Section 376 of the Indian Penal Code, as prosecution was able to establish that the accused attempted to commit rape, he had therefore, convicted him for offence punishable under Section 376 read with Section 511 of the CR.A/1056/1988 11/13 JUDGMENT Indian Penal Code. This was so on account of the fact that even as per the eyewitness, the complainant he had not stated that the appellant had penetrated the victim girl with his penis. Learned Additional Sessions Judge therefore, in my view rightly disbelieved the charge under Section 376 of the Indian Penal Code of the accused having raped the victim girl. Nevertheless, attempt to commit rape was established by the prosecution and correctly believed by the learned Additional Sessions Judge. 18.No material contradictions have been extracted by the defence in the statement of prosecution witnesses. As noted, entire version by the complainant-PW4 was in tune with the testimony of Padmaben-PW5. She had no reason to misstate the facts before the Court. Her testimony is clear and inspires confidence. This, coupled with the fact that Thakorebhai Fakirbhai- PW6(exh.17) and Jasuben Thakorebhai-PW7(exh.18) stated before the Court that on the date of incident they had gone for grazing their cattle and collecting grass for their cattle, further corroborates prosecution case. 19.The medical evidence of no injury on either the victim girl or the accused would not be conclusive of innocence of the accused. Significantly, medical evidence was conducted CR.A/1056/1988 12/13 JUDGMENT more than three days after the incident. The victim girl was not only dumb, but was also slow in her reactions as found by the Principal-PW3. She may not be entirely of unsound mind. Nevertheless, it cannot be denied that she was not a perfectly normal person. She was not able to scream and seek help when in distress. Under such circumstances, even if she did not put up much of physical resistance to the attempt of the appellant, same would not mean that she was a willing participant in the act of committing sexual intercourse. 20.Delay of filing FIR has also been explained by the prosecution. The complainant stated that after the incident he had met uncle of the accused who was residing in the same village and advised him to contact father of the accused. The complainant thereupon met father of the accused who resides in a village at a distance of about 10 kms from the house of the complainant. Father of the accused pacified the complainant and assured him that he would sought out the issue. Having waited for three days, the complainant lodged the complaint before the police thereafter. Merely on the ground of such delay, prosecution version cannot be discarded. 21.In the result, I find no merits in the appeal. The appeal is therefore, dismissed. Bail stands cancelled. The appellant shall however, have CR.A/1056/1988 13/13 JUDGMENT time upto 15.02.2008 to surrender before the police. The appeal is disposed of accordingly. (Akil Kureshi,J.) (raghu)