IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO 464 OF 1991 WITH CRIMINAL APPEAL NO 721 OF 1991 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ -------------------------------------------------------- KANTIBHAI MANGUBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 464 of 1991 MR MJ BUDDHABHATTI Ld. Adv. for the Appellants Nos. 2-3 MR DIGANT P JOSHI Ld. APP for Respondent No. 1 2. Criminal Appeal No. 721 of 1991 MR DIGANT P. JOSHI Ld. APP for the appellant. MR MJ BUDDHABHATTI Ld. Adv. for Respondent No. 1-3. -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 29/08/2001 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. On a trial held by the learned Additional Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 97/89, the appellants in Criminal Appeal No. 464/91 have been convicted under Sections 376(2)(a)(g), 354, 341, 342, 323 read with Section 34 of the Indian Penal Code and punished with RI for 10 years and fine of Rs. 500/-, in default, RI for 6 months for the offences punishable under Section 376(2)(a)(g) read with Section 34 of the I.P.C., RI for 6 months for the offence punishable under Section 354 read with Section 34 of the IPC, SI for 15 days for the offence punishable under Section 341 read with Section 34 of the IPC, RI for 3 months for the offence punishable under Section 342 read with Section 34 of the IPC and RI for 3 months for the offence punishable under Section 323 read with Section 34 of the IPC. whereas, the respondents in Criminal Appeal No. 721/1991 have been acquitted of the charges framed against them vide judgement dated June, 22 1991. As both the appeals arise out of common judgement and as common question of facts and law arise for our determination in these two appeals, we propose to dispose of them by this common judgement. 2. One of the villages of Sagbara Taluka, District Bharuch is Devidav. This village is predominantly inhabited by Adivasis. The village is situated at a distance of about three to four kilometers from Sagbara. The road leading to this village ends at Gorda village. From there, one has to walk or go by a vehicle through uneven route about a distance of four kilometers to reach this village. 3. Smt. Guntaben, then aged 22 was the second wife of Hanabhai Ramji and was staying with her husband in village Devidav. In the month of January, 1986 Bai Sakra, who is related to husband of Smt. Guntaben alongwith Bai Indira and Indira's mother had come from village Taval to the house of Bhimji Geria of village Devidav. One Kanabhai Roopji who is son of uncle of Hanabhai had invited these people for dinner at his house, which is adjacent to the house of Hanabhai Ramji. They had stayed in the house of Kanabhai during the night and in the morning, they were invited for tea by Smt. Guntaben to her house. Hanabhai Ramjibhai was not present in his house as he had gone to village Pati for carpentry work of a house of his relative. After taking tea, Smt Guntaben, Bai Sakra and Bai Indira had gone to the field of Hanabhai situated nearby, for plucking Tuver. While they were plucking Tuver, Kanabhai alongwith his friend Jaysing Karsu came there and dragged Bai Sakra by catching hold of her hand. Both Smt. Guntaben and Bai Indira intervened and tried to rescue Bai Sakra but they were slapped as well as threatened by these two persons and therefore, they could not rescue Bai Sakra. On return to home, Smt. Guntaben reported this incident to Roopji Nokta, father of Kana Roopji and asked him that her husband i.e. Hanabhai Ramji, who was at village Pati should be informed about the incident. On being informed, Hanabhai Ramji alongwith elder brother of Bai Sakra returned to his village in the evening. Enroute, Hanabhai informed the father of Bai Sakra i.e. Shri Ubadia Kalia at village Taval about the incident of kidnapping. On the next day, Hanabhai also searched the neighbouring villages to ascertain the whereabouts of the kidnapped girl, in the company of police Patel Karamsinh Gimba, but search proved to be futile. 4. Upon being informed about the kidnapping of his daughter by Kana Roopji of village Devidav, the father of the girl immediately took steps to search for the girl by contacting his relatives and also by sending people to Devidav village. The record of the case shows that he waited for some time but as his waiting proved of no use, he decided to report the matter to the police. In the afternoon, he alongwith Gulabsing Ubadia Vasava, who was then, Talati-Cum-Mantri of village Taval went to the Sagbara police station and narrated the incident to the Jamadar in charge of the police station. The Jamadar in-charge of the police station did not record the complaint or register the information given by father of Bai Sakra but arranged for despatch of police party to village Devidav. Gulabsing Ubadia Vasava arranged for a truck, in which, police party proceeded towards village Devidav in search of the kidnapped girl. In that truck 5 police men i.e. (1) unarmed Head Constable Kantibhai Mangubhai (the appellant No. 1 in Criminal Appeal No. 464/94) (2) Unarmed Police Constable Amarsing Fatehsing (the appellant No. 2 in Criminal Appeal No. 461/1991) (3) Unarmed Police Constable Keshavbhai Maganbhai (the respondent no. 2 in Criminal Appeal No. 721/91) (4) Unarmed Police Constable Laxmanbhai Amrabhai (the appellant No. 3 in Criminal Appeal No. 461/91) (5) Armed Police Constable Govind Soma (the respondent no. 3 in Criminal Appeal No. 721/91), Gulabsing Ubadia Vasava, Chhaganbhai Jariya, Chhanabhai Ubadia, Jaysingbhai Ramji, Jethabhai Debabhai and others proceeded towards village Devidav. After reaching village Gorda, the truck halted there as it could not proceed further due to bad and uneven road. The search party proceeded towards village Devidav walking and reached at the house of Police Patel Mr. Karamsinh after midnight, but the search party was informed by wife of the Police Patel that the police patel had gone out and therefore, the search party went to the house of Kana Roopji. Kana Roopji, who had allegedly kidnapped Bai Sakra was also not available at his house but his brother in law Bhimsing Kathuria who had come from village Bhador and sleeping in the house was woken up and whisked away for interrogation. The search party next went to the house of Smt. Guntaben situated nearby. Hanabhai Ramji's first wife Pohliben and his mother were found sleeping alongwith four children in the house, whereas, Smt. Guntaben and her husband Hanabhai Ramji were sleeping in the orchard. The police party went to the place where Smt. Guntaben and her husband were sleeping and apprehended both of them. Gulabsing identified Smt. Guntaben as the main culprit behind the kidnapping incident of Bai Sakra. Smt. Guntaben as well as her husband were manhandled and beaten up by the police men in uniform. The police party thereafter took Smt. Guntaben, her husband Hanabhai Ramji and Bhimsing Kathuria to the house of Police Patel of village Devidav. Hanabhai and Bhimsing were tied with ropes and they were also belaboured. As it was a chilly night, the policemen asked one Kiliyabhai to light the fire. After the fire was lit, Gulabsing uttered that this lady had insulted the girl of our village and therefore, we should outrage her modesty. On hearing these words, the policemen asked Bai Gunta to take off her clothes. When she refused to do so, one policeman caught hold of her hand, whereas, other started taking off her clothes and she was stripped naked. Smt. Guntaben was made to stand in naked condition for half an hour just near the fire and she could see the five policemen who had come to her house with Gulabsing and others. 5. Thereafter, she was asked to put on her clothes and after she had put on clothes, she was tied with a rope, which was brought from the house of police patel. Bai Gunta, her husband Hana Ramji and Bhimji Kathuria were thereafter taken to village Gorda. The motor truck in which the search party alongwith Gulabsing and others had come was found waiting at to village Gorda and therefore, the husband of Bai Gunta i.e. Hana Ramji, Bhimji Kathuria, Gulabsing and other persons were asked to sit in the body of the truck with the armed policeman, who was carrying a gun, whereas, Bai Gunta was asked to sit in the cabin of the truck in between the other four unarmed policemen. In the truck she was untied and the driver was directed to drive the truck towards Sagbara. On way to Sagbara, the four policemen, who were sitting in the cabin asked the driver to stop the truck at village Devmogra. After the truck was stopped by the driver, the driver was asked to get down by the policemen. The policemen thereafter, asked Bai Gunta to remove her clothes and when she refused to do so, one policeman caught hold of her hand and other caught hold of her legs, whereas, the third removed her clothes. After removing all her clothes, she was made to lie on the seat of the truck. After she was made to lie down, one policeman caught hold of her hands, whereas, the other gagged her mouth and in that position, all the policemen one after the other committed rape on her. The truck had stopped at village Devmogra for about half an hour. After committing rape, the policemen asked Bai Gunta to put on her clothes and the driver was called. The driver was thereafter instructed to take the truck to Sagbara and the truck reached Sagbara in the early morning of January 6, 1986. 6. After reaching Sagbara, four policemen, who were sitting with Bai Gunta in the cabin of the truck took her to the first floor of the building adjacent to the Sagbara police station and at that place, again they asked Bai Gunta to remove her clothes. On refusal to remove her clothes, Bai Gunta's hands were caught hold by one policeman and the other removed her cloths. After removal of the clothes, she was made to lie down in the varanda of the first floor and all the four policemen again committed rape on her one by one. Thereafter, one policeman gave a thrust with Lathi on private part of Bai Gunta and because of this, profuse bleeding from the vagina of Bai Gunta took place. Thereafter, Bai Gunta put on her clothes and the policemen brought her down and took her in one room of Sagbara Police Station. In the morning at about 7 A.M., she had come out of the police station to wash her mouth and at that time, she noticed that her husband and Bhimsing Kathuria were also placed in the lock up of the police station. At about 8 A.M. P.S.I. Mr. Joshi came at the police station and made inquiries about the missing Bai Sakra. While making inquires, Mr. Joshi gave 2-3 slaps to Bai Gunta. At about, 9 AM Bai Sakra, who was missing and Kana Roopji who had allegedly kidnapped Bai Sakra came to the police station. The policemen of Sagbara Police Station severely beat Kana Roopji and put him behind the bars. Thereafter, Jaising Karshu also came to the police station and he was also severely beaten and placed behind the bars by the policemen. All these persons were detained at the police station upto about 4 p.m. on 7.1.1986 and were allowed to go only thereafter. 7. After they were released from the police custody, Jehria Bharia met Bai Gunta as well as her husband and told them that he had paid Rs. 2000/- to PSI Mr. Joshi for releasing them from the police custody. After release from police custody, Bai Guntaben told her husband about the rape committed on her by the policemen of Sagbara policemen. From Sagbara she in the company of her husband went to village Dudhaliver. On the next day they went to village Gundvad at the residence of one Pratap. At village Gundvad, Roopsing Dhana met them and Bai Gunta as well as her husband told him about the rape committed by the policemen Sagbara Police Station on Bai Gunta. Roopsing Dhana advised Bai Gunta and her husband to go to Rajpipla Hospital for medical examination and accordingly went to Rajpipla Hospital but the doctor on duty refused to examine Bai Gunta as she had not come to the hospital with a police yadi. Thereafter, Bai Gunta and her husband went to the office of Free Legal Aid at Rajpipla, where, they met father Joseph. Bai Gunta narrated the incident of rape on her in detail to father Joseph. In the office of Legal Aid one advocate was present and he after hearing the version of Bai Gunta asked her to come on the next day and submit an application, which was to be prepared by him, in the office of the D.S.P. Bharuch. As there was profuse bleeding from the private part of Bai Gunta and as she was suffering from severe bodily pain, she was taken by father Joseph in his jeep to Mangrole hospital. At the said hospital Bai Gunta was examined and treated by Dr. Daxaben Patel, to whom she narrated in detail the incident of rape on her by policemen of Sagbara Police Station. After taking treatment from Dr. Daxaben Patel, Bai Gunta returned to Rajpipla in the jeep of father Joseph. 8. On the next day morning they went to the office of Free Legal Aid, where one advocate was present, who took them to his office and thumb impression of Bai Gunta was taken on an application prepared by him. Bai Gunta, her husband and Roopsing Dhana thereafter, went in the jeep of father Joseph to the office of the District Superintendent of Police of Bharuch. The officer, who was present in the office of DSP read the application presented by Bai Gunta and told her that an officer from Rajpipla would come to make inquiry. The said officer also advised Bai Gunta to go to Government Hospital either at Rajpipla or Dediapada or Sagbara for treatment. On the next day, Bai Gunta with her husband and others went to the Government Hospital of Rajpipla but the doctor on duty refused to treat Bai Gunta as she had not brought any police yadi with her. Therefore, they returned to the office of father Joseph and stayed there over night. 9. On the next day, one advocate from Delhi and another from Ahmedabad came to the office of father Joseph and both the advocates took Bai Gunta to Rajpipla Government Hospital, where she was provided medical aid. Thereafter, the advocates took her to Government Rest House, where, Government officers of Rajpipla who were present there, collected the details about the incident in question from Bai Gunta and she was taken to the Rajpipla Police station. At Rajpipla police station, her complaint was recorded by the Circle Police Inspector Mr. B.J. Parmar and First Information Report was registered under Section 154 of the Criminal Procedure Code as CR. No.0/86 of Rajpipla Police station. At about 1.30 to 2 a.m. on the same night, Bai Gunta and her husband were taken in a jeep by Circle Police Inspector Mr. Parmar to Sagbara and one lady constable had accompanied them. Bai Gunta and her husband reached Sagbara police station at about 4 a.m. As an offence of rape had taken place within the jurisdiction of Sagbara police station, investigation of the case was transferred to the Sagbara police station, where, it was registered as CR. No. 2/86. When they reached Sagbara police station, PSI Mr. Joshi was present and he threatened Bai Gunta that on disclosure of incident of rape on her by the policemen of Sagbara Police Station, she would be beaten and handed over again to the policemen. During that time principal of Sagbara High School Mr. Narottam Singabhai, who happened to be the cousin of Bai Gunta came to the police station and he also advised Bai Gunta not to speak about the incident of rape on her committed by the policemen. 10. At about 11.30 a.m. Bai Gunta and her husband were taken in one jeep car to the office of Mamlatdar, Sagbara. They were accompanied by one lady constable and other policemen, who were in plain cloths, whereas, PSI Mr. Joshi and Jamadar Bhaskar were following them on a motor cycle. After reaching the office of Mamlatdar, Bai Gunta and her husband were asked to purchase two stamp papers, each of Rs. 10/-. On amount being given, Jamadar Bhaskar had purchased two stamp papers and thumb impression of Bai Gunta was taken in the sale register of stamp papers. 11. After purchasing stamp papers they were taken in jeep to the High School, followed by Jamadar Bhaskar and PSI Joshi on the motor-cycle. When jeep reached near High School, they were made to sit in the jeep, whereas, Jamadar Bhaskar and PSI Joshi went inside the building of the high school. After about an hour they were called in one room of the high school where PSI Joshi caught hold of hand of Bai Guntaben and took her thumb impression on the stamp paper. When her thumb impression was taken, she found that there was writing on the stamp paper but the said writing was neither explained nor read over to her. Similarly, thumb impression of her husband was also taken on another stamp paper. After taking their thumb impressions, they were again taken to Mamlatdar's office in the jeep followed by Mr. Joshi and Jamadar Bhaskar on a motor-cycle. After reaching Office of Mamlatdar, PSI Joshi again took thumb impression of Bai Gunta on the stamp paper and thereafter, they were taken to Sagbara police station, where, Dy.S.P. Bharuch was also present. Bai Gunta and her husband remained in the police station for the whole day and night. 12. On the next day one police officer of Rajpipla took them in a jeep car, to one lodge for meals. After taking meals, Bai Gunta and her husband got down near village Kanbi Pitha and thereafter, they reached village Gundvad. The District Collector as well as Mamlatdar had come to village Gundvad and recorded the statements of Bai Gunta and her husband. Bai Gunta, her husband and Roopsing Dhana thereafter went to the office of Free Legal Aid at Rajpipla where, father Joseph and two advocates were present. On inquiry being made, the advocates came to know that Bai Gunta and her husband were forced by the policemen of Sagbara police station to swear false affidavits. The advocates assured them that their case would be represented properly before the highest court of the land. Afterwards, Bai Gunta and her husband returned to village Devidav. Thereafter, PSI Joshi of Sagbara police station went to call Bai Gunta for test identification parade, which was to be held at the office of Mamlatdar on January 19, 1986. Test identification parade was held by the Executive Magistrate and in the said parade Bai Gunta identified the accused nos. 1 to 4 as policemen who had committed gang rape on her in the cabin of the truck as also at the varanda of a building adjacent to Sagbara police station. 13. A writ petition (criminal) No. 92/86 was filed by advocate Mr. P. Rathinam before the Supreme Court of India complaining about the rape committed by the four policemen of the Sagbara police station on Bai Gunta. The Supreme Court by order dated January 22, 1986 directed that the investigation into the offence of rape alleged to have been committed by four policemen of Sagbara police station on Bai Guntaben, be immediately taken over by the Central Bureau of Investigation (for short "CBI") and the local police was restrained by the Supreme Court from proceeding with the investigation into the case. In view of these directions, the investigation was taken over by Sp. Branch of CBI, Ahmedabad. 14. Mr. G.I. Doabia, the then Dy. Superintendent of Police, CBI, Ahmedabad as per the direction of the Supreme Court took over the charge of the investigation of CR. No. 2/86 of Sagbara Police Station from CPI Rajpipla Mr. Parmar. Mr. Doabia lodged the First Information Report and registered the offence on March, 1 1986 with CBI Ahmedabad at CR. No. 5/86. Further investigation into the offence of rape was carried out by CBI Ahmedabad. 15. The Investigating Officer of CBI recorded the statements of Bai Gunta, her husband and others. The statement of Dr. Daxaben Patel was also recorded. The medical certificate issued by Dr. Daxaben Patel was obtained by the Investigating Officer from advocate Mr. Rathinam during the course of investigation. 16. On March 20, 1986 Bai Gunta took the I.O. to the first floor of building situated adjacent to the Sagbara police station, where, the policemen had committed rape on her. The I.O. was also accompanied by the experts from Forensic Science Laboratory. A detailed panchnama of the place of occurrence was drawn. By the time, the truck in which, rape was committed by the policemen on Bai Gunta was also available and therefore, panchnama of the truck bearing registration No. GTG 3512 was also drawn. During the course of investigation, the cloths of the accused as well as their movement diaries, which were in the form of notebooks were seized. The cloths put on by Bai Gunta on the date of incident were produced by her and the same were also taken into custody. The cloths of the accused and Bai Gunta were sent to FSL for analysis. During the course of investigation, station diary of Sagbara police station, lock-up register of the police station, complaint register etc. were also attached. Mr. Doabia was thereafter transferred from CBI to the State Police and therefore, the investigation of the case was taken over by Mr. S.D. Pandya on July 18, 1986. 17. After receipt of the report from FSL and on the conclusion of the investigation, Mr. S.D. Pandya, the then, Dy. Superintendent of Police, Ahmedabad filed chargesheet against the accused in the Court of learned Additional Chief Judicial Magistrate (Rural) at Narol on August 21, 1987 for the offences punishable under Section 376 (2)(a)(g), 354, 341, 342, 323 read with Section 34 of the Indian Penal Code. As the offence punishable under Section 376 of the I.P.C. is exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, Narol vide his order dated May 21, 1988 committed the case to the Sessions Court at Bharuch for trial, where, it was numbered as Sessions Case No. 55/88. 18. Thereafter, Bai Gunta filed Misc. Criminal Application No. 2694/88 before the High Court and prayed that the Sessions Case No. 55/88 pending before the court of Sessions Court at Bharuch be transferred to the Ahmedabad City Sessions Court for the reasons stated in the said application. The High Court (Coram : R.A.Mehta,J.as he then was) vide order dated March 2, 1989 directed that the Sessions Case No. 55/88 pending in Sessions Court at Bharuch be transferred to the Sessions Court at Ahmedabad, before which, Special Case No. 7/89 was also pending regarding bribe and corruption by policemen of Sagbara police station. Accordingly, the case