CR.A/976/2002 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 976 of 2002 WITH CRIMINAL MISC.APPLICATION No. 1714 of 2004 IN CRIMINAL APPEAL No. 976 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA 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 ? =================================== CR.A/976/2002 2/42 JUDGMENT ILIYAS VARISBHAI SHAIKH - Appellant Versus STATE OF GUJARAT & 1 - Opponents =================================== Appearance : MS AMEE YAJNIK for Appellant. MR KT DAVE, APP for Opponents. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 21/02/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. Challenge in this Appeal filed under Section 374 of the Code of Criminal Procedure (“the Code” for short) is to the correctness of the judgment and order dated 09.10.2002 rendered in Sessions Case No.224 of 2001 by the learned Additional Sessions Judge, Ahmedabad by which the appellant – Iliyas Varisbhai Shaikh (“the accused” for short) has been convicted for commission of the offence punishable under Section 363, 366 & 376 of the Indian Penal Code (“IPC” for short) and sentenced to suffer RI for 10 years and fine of Rs.5,000/- and in default thereof, CR.A/976/2002 3/42 JUDGMENT RI for 6 months for the offence punishable under Section 376 of IPC and RI for 5 years and fine of Rs.2,000/- and in default thereof, RI of 3 months for the offence punishable under Section 366 of the IPC & R.I. for one year and fine of Rs.1,000/- and in default thereof, to undergo R.I. of one month for an offence punishable under Section 363 of the IPC. All the three substantive sentences were ordered to run concurrently. 2. Criminal Misc. Application No. 1714 of 2004 is filed on 20.02.2004 under Section 391 of the Code for the examination of additional witnesses pending this Appeal. The Court issued rule in this application on 08.03.2004 and it was ordered to be heard with appeal. 3. Since the facts of the case have been detailed in the judgment of the learned Additional Sessions Judge, Ahmedabad, it is not necessary for us to repeat the same all over again in verbatim and in detail in this CR.A/976/2002 4/42 JUDGMENT judgment. However, the basic facts which are necessary to be discussed in this appeal are as under:- 4. The allegation levelled against the accused is that on 05.06.2001, the prosecutrix P.W. 1 had filed complaint under Section 352, 452 & 506 of IPC at Gayakvad Haveli Police Station, Ahmedabad which is produced at Exh. 7 (page 49 of the paper book). Thereafter on 07.06.2001, the prosecutrix made a further statement stating inter alia that on 05.06.2001, she was afraid of her reputation, breaking of her engagement and of her parents and that as she was not feeling well, she could not give the full particulars in the complaint filed on 05.06.2001. She has stated in her further statement that before two months from 07.06.2001 i.e. on 07.04.2001, Zarina, the first wife of the accused had gone to hospital as her father was sick and she was asked to clean utensils and dress the children. She was alone in the house of the accused attending to CR.A/976/2002 5/42 JUDGMENT the work entrusted by the wife of the accused. The son aged about five years was sent to the house of his maternal grandfather to bring something. The accused closed door of the house and while the prosecutrix raised an alarm, the accused put handkerchief across her month by inhaling some smell into the nose of the prosecutrix which rendered her unconscious. It is alleged that she regained consciousness after half an hour and she found that her trousers and nicker were not there on her body and that she was raped. She found that her private organs were bleeding and that the body was paining. She was crying and then she redressed again. She told the accused that she would tell all that about to her parents. The accused threatened her to show her necked photographs if she would tell all that about to her parents. She did not tell about the above incident to her parents out of fear. 5. She has further stated that on 04.06.2001 at about 06.00 p.m., an incident took place in which the CR.A/976/2002 6/42 JUDGMENT accused met her near municipal quarters. She was asked to sit in the Maruti Car driven by the accused. From there, she was taken to Govardhan Hotel where he forcibly committed rape on her. She was then dropped near AMTS Quarters where she was seen by little daughter Reshma of the accused. The accused then dropped the prosecutrix at her house in PWD Quarters. That the first wife Zarina and brother-in-law Shabbir met her and called her parents there. When they asked her as to what happened, she could not reply them. The parents of the prosecutrix then brought her back home and gave 2-3 slaps and then she told the parents that the accused had committed rape on her. Thereafter, on 05.06.2001, her parents and uncle took her to Haveli Police Station at night and the prosecutrix gave complaint against the accused under Section 352, 452 & 506 of IPC. Thereafter, by her further statement on 07.06.2001 which is at Exh. 63, she made development in her complaint. CR.A/976/2002 7/42 JUDGMENT 6. Pursuant to the said complaint and further statement, the investigation was put into motion and in pursuance thereof, the accused was charge- sheeted for offence punishable under Sections 363, 366 & 376 of IPC. It was in pursuance of the said investigation of the offence, that the charge-sheet was submitted in the Court of learned Metropolitan Magistrate, Ahmedabad. 7. As the offence under Section 363, 366 & 376 of IPC is exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to the City Civil & Sessions Court, Ahmedabad. 8. The learned Additional Sessions Judge, Ahmedabad to whom the case was made over for trial, framed charge against the accused for commission of the offence punishable under Section 363, 366 & 376 of IPC. The charge was read over and explained to the accused. As the accused pleaded not guilty to the CR.A/976/2002 8/42 JUDGMENT charge, he was put to trial and tried by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 224 of 2001. 9. In order to bring home the charge levelled against the accused, the prosecution has, in all, examined as many as 10 witnesses, the details of which are as under :- Sr. No. Exh. No. Particulars Page Nos. 01. 06 P.W. 1 – Rizwana Haji Mohammed Abdul Rehman. 34-46 02. 09 P.W. 2 – Shamshadbegum Husenuddin Kadri 53-55 03. 22 P.W. 3 – Dr. Shilpaben Kanubhai Yadav. 81-83 04. 24 P.W. 4 – Haji Mohammed Abdul Rehman Chhipa. 85-95 05. 26 P.W. 5 – Abdul Aziz Ramzanbhai. 98-99 06. 29 P.W. 6 – Dhirajbhai Babulal Doshi. 100 07. 32 P.W. 7 – Satusing Kalusing Rathod. 105-118 08. 41 P.W. 8 – Dr. Bhavin Sainlal Shah 171-173 09. 45 P.W. 9 – Gangaram Goverdhan Prajapati. 179-181 10. 55 P.W. 10 – Prakash Mohanlal Bhaliya 190-196 10.To prove the culpability of the accused, the prosecution has also produced number of documents CR.A/976/2002 9/42 JUDGMENT and relied upon the contents of the same, details of which are as under :- Sr. No. Exh. No. Type of Evidence Page Nos. 01. 2 Charge. 18-19 02. 07 Complaint 49-51 03. 13 Receipt regarding Muddamal received by FSL. 63 04. 14 FSL letter to PSI, Gaikvad Haveli Police Station. 64 05. 15 FSL Report. 65-68 06. 16 Serological Report. 69 07. 17 Panchnama 70-72 08. 18 Panchnama 73-75 09. 19 Zerox copy of Nikah Register No. 22. 76 10. 34 Panchnama of place of incident. 122-123 11. 46 Zerox copy of relevant page of Register of Govardhan Hotel. 182 11.After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Ahmedabad explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement, as required under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution in its entirety and CR.A/976/2002 10/42 JUDGMENT submitted that he has been falsely implicated in the offence alleged against him. In his further statement, the accused has further stated that the prosecutrix has herself called him on Mobile Phone on 07.04.2001 to come at AMTS Quarter and that he has gone there with his Maruti Car and at that time, she told him that if he would not marry her, she would die by throwing herself under the Truck. He has further deposed that thereafter he has gone along with two witnesses to Moraiya village's mosque and there he got married with the prosecutrix in presence of Kazi and two witnesses. He has further stated that the prosecutrix has told him that she is of 18 years old and she has willingly married with him. In support of his further statement, the accused, however, did not lead any evidence nor did he examine any witness. 12.On appreciation, evaluation, analysis and scrutiny of the evidence, the learned Additional Sessions Judge, Ahmedabad came to the conclusion that the accused CR.A/976/2002 11/42 JUDGMENT has committed an offence punishable under Section 363, 366 & 376 of IPC. On the basis of the said finding, the learned Additional Sessions Judge, Ahmedabad has convicted the accused for commission of the offence punishable under Section 363, 366 & 376 of IPC and sentenced him for the said offences, a reference of which is already made in earlier part of this judgment. This order of the learned Additional Sessions Judge has given rise to the instant appeal at the instance of the accused. 13.In the appeal memo filed before this Court, the accused has contended that the impugned judgment and order passed by the learned Additional Sessions Judge is illegal, improper and unjust and is contrary to the settled legal principles of criminal jurisprudence and is also contrary to the evidence on record and hence, is liable to be quashed and set aside. It is further contended that the learned Additional Sessions Judge has not properly appreciated the evidence, oral as well as CR.A/976/2002 12/42 JUDGMENT documentary, in their proper perspective and by misappreciation of the same, he has illegally convicted the accused for the offences for which he was charged and, therefore, the impugned judgment and order of conviction is liable to be quashed and set aside. The learned Additional Sessions Judge has committed gross illegality in considering the further statement of the prosecutrix recorded on 07.06.2001. He has completely ignored the fact of FIR having been registered at Exh. 7 on 05.06.2001 and the story narrated in the complaint. It is further contended that on 05.06.2001, when the complaint was filed by the prosecutrix, the same was filed by her in presence of her father, her uncle, her mother and the said complaint was sent by her which was registered for the offence punishable under Section 354 & 506 (2) of IPC. A copy of the said complaint was also given to the prosecutrix. But subsequently after two days by making a well-plan, the accused was implicated in serious offence when the father of the prosecutrix approached the higher Police Officer and the higher Police Officer directed the CR.A/976/2002 13/42 JUDGMENT Investigating Officer to record another statement of the prosecutrix wherein a very exaggerated story adding many more new facts was stated by the prosecutrix and the said statement was recorded at the instance of the higher Police Officer upon the insistence of the prosecutrix and her father. It is further contended that the second story narrated in further statement is a well-planned story narrating many more facts deliberately disclosing serious allegations which were not forming part of the complaint / FIR recorded at Exh. 7. Hence, the accused should not be convicted for the allegations levelled in the story subsequently got-up and created and which was not supported by reading the complaint at Exh. 7. It is further contended that the learned Additional Sessions Judge has committed a very serious error of law in relying upon the further statement of the prosecutrix and he has shown his clear inclination to give exhibit to the further statement which was recorded under Section 162 of the Code of Criminal Procedure. The observations made in this regard by the learned Additional CR.A/976/2002 14/42 JUDGMENT Sessions Judge in the impugned judgment are clearly contrary to the spirit of the provisions of law and the learned Additional Sessions Judge seems to have been carried away by the morals and sentiments rather than following the principles of law. It is, therefore, contended that the conviction based on such observations is illegal and deserves to be quashed and set aside. 14.The accused has further contended in the appeal memo that the learned Additional Sessions Judge has failed to appreciate that there was no medical evidence supporting the case of the prosecution and when the prosecutrix was examined only after recording of her further statement, the history given by her was bound to be inadmissible with the subsequent got-up story and, therefore, the history given before the Doctor ought not to have been given any importance. Despite this fact, the learned Additional Sessions Judge has given importance to the history given on 07.06.2001 and has taken the CR.A/976/2002 15/42 JUDGMENT corroboration from that to believe the story narrated in the further statement. Hence, the judgment and order of the learned Additional Sessions Judge is liable to be quashed and set aside. It is further contended that the defence raised by the accused has not been considered at all. The defence of the accused was that in presence of Maulavi, two witnesses and advocate, the Nikah ceremony was performed with the prosecutrix. When the said case was put forward, it was the duty of the Investigating Officer to whom the investigation was subsequently handed over to record the statements of those persons who are stated to be present in the said Nikah ceremony. Therefore, the impugned judgment and order of conviction was liable to be quashed and set aside. The learned Additional Sessions Judge has failed to appreciate the medical Certificate at Exh. 23, 43 & 58 and has erroneously come to the conclusion that the offence under Section 376 is proved against the accused. CR.A/976/2002 16/42 JUDGMENT 15.During the pendency of this appeal as well as application for examination of additional witnesses, an affidavit is filed by the first wife of the accused and the prosecutrix on 07.07.2005 placing on record the settlement vide agreement between the accused and the prosecutrix. It is stated in the said affidavit that the accused had married the prosecutrix on 07.04.2001 at village Moraiya according to Muslim Personal Law. The accused got married earlier and had a living spouse and in whose life time, this second marriage was valid and permissible under the Muslim Law as there was a consent from the first wife. The alleged incident of rape against the prosecutrix came to be registered after the consented marriage. The said marriage was denied by the prosecutrix in her evidence during the course of trial. The reason being that she had never seen the Nikahnama document all throughout the trial until 25.05.2005. Therefore, though she had been told by the accused that they were married, even for her persistent demand, the Nikahnama was never shown to her till 25.05.2005. Hence, she was CR.A/976/2002 17/42 JUDGMENT justified in denying any marriage before the Court of law. However, as she was of a very young age, she believed at the time of incident that her action permitting even under force and emotional pressure was a part and parcel of her valid marriage. As there being repeated sexual requests rather than living together, she started demanding the evidence of a valid marriage which the accused took it very casually. Thus feeling betrayed that under the guise of marital promise, she was being taken for a ride and hence, she filed a complaint and prosecuted the accused for which he was convicted. Thus on 25.05.2005, upon seeing the original document, she has a change of mind and she has consented for a divorce by Talak. This was by taking into account that the Nikahnama was undoubtedly the original one. 16.It is further stated in the said affidavit that the accused was released on parole on 30.05.2005 only for the purpose of giving talak to the prosecutrix. CR.A/976/2002 18/42 JUDGMENT The Talaknama was executed as a document in presence of two witnesses, namely, Idrishbhai and Zahiruddin and then the settlement was sorted out. As per the settlement, the prosecutrix was to be compensated for her innocence and also for being exploited under the circumstances of her adolescent age. Therefore, demand to pay a sum of Rs. 2 Lac was deemed to be fit and proper under the given circumstances of settlement. The said offer for the amount of settlement was also accepted by the prosecutrix taking into consideration her future financial securities. A prayer was made in the said affidavit that in the larger interest of justice, conviction order may be set aside in light of the new set of facts and the settlement of the prosecutrix may be recorded and that the document of settlement may be considered by the Court for setting aside the conviction order passed by the learned Additional Sessions Judge. 17.It appears that despite the aforesaid affidavit, the CR.A/976/2002 19/42 JUDGMENT said settlement was not worked out and neither the appeal nor the application was decided by the Court at that time. Thereafter, the appeal as well as application were listed for hearing before this Court on 15.02.2007. The Court has heard Ms. Amee Yagnik, learned advocate appearing for the accused and learned Additional Public Prosecutor Mr. K.T. Dave for respondent – State of Gujarat. While considering the prayer made in the application for examination of additional witnesses, the Court has observed in its order dated 15.02.2007 that instead of recording their evidence by this Court or by the Trial Court, it would be in the interest of justice to permit the accused to place the duly sworn affidavits of those persons which would be considered while deciding the said application. Accordingly, the accused was permitted to obtain the affidavits of the persons whose names are mentioned in the prayer clause 'O' of the said application and to place these affidavits along with the documents, if any, in support of their affidavits, on the record of this Court. The Court has further observed that the CR.A/976/2002 20/42 JUDGMENT persons whose affidavits are to be obtained and permitted to be placed on record, are also directed to remain present before the Court on the next date of hearing i.e. 20.02.2007. 18.On 20.02.2007, when this matter is called out, learned advocate Ms. Amee Yagnik placed on record affidavits of (1) Nazmuddin Sheikh Imam Sheikh, (2) Azizbhai Hasanbhai Khalifa, (3) Akbarbhai @ Kadarbhai Mohmmadraza Khalifa and (4) Mohmmad Khalil Mohmmad Halim Sheikh. All these persons are personally present in the Court and they have admitted the fact stated in the affidavit as well as the signatures put by them on the said affidavits. Learned Additional Public Prosecutor Mr. K. T. Dave was asked to cross-examine these persons if he so desires. However, he has thought it fit not to cross- examine these persons. The said affidavits are, therefore, taken on record and facts stated therein are considered for the purpose of deciding this appeal. CR.A/976/2002 21/42 JUDGMENT 19.Nazmuddin Sheikh Imam Sheikh in his affidavit dated 19.02.2007 stated that on 07.04.2001, when he was present in his house, Iliyas Varis had come to him and told him that Nikah was to be performed and he had to go as Kazi to the Dargah at Moraiya village near Sarkhej. He had gone there and as per Muslim Personal Law, he performed Nikah of the accused with the prosecutrix in the presence of two witnesses and one Vakil. He asked the prosecutrix thrice as to whether she accepted Nikah and her answer was in affirmative. He registered the said Nikah in his register and gave copy of Nikahnama to the accused as well as prosecutrix and one copy was retained by him. He admitted his signature on the Certificate of Nikah when it was shown to him. He further stated that he asked the prosecutrix about her age and she told that she was of 18 years old. She further told him that she got married with the accused willingly and with her free will. He, thereafter, came to know about complaint filed with CR.A/976/2002 22/42 JUDGMENT Gaekwad Haveli Police Station and police had recorded his statement. He further stated that this affidavit is to be produced before this Court as an evidence. 20.Mahmad Khalil Mahmad Halim Sheikh is the witness to the Nikahnama. He has admitted facts regarding Nikah of the prosecutrix with the accused performed on 07.04.2001. 21.Akabarbhai @ Kadarbhai Mahmadraza Khalifa is a witness to the Nikahnama. He admitted the fact regarding Nikah of the prosecutrix with the accused performed on 07.04.2001. 22.Azizbhai Hasanbhai Khalifa is the father of Mubarak who was present at the time of Nikah and signed Nikahnama at the time of its execution. Since his son is out of station at present, he filed this affidavit. He is aware about the fact that his son has signed CR.A/976/2002 23/42 JUDGMENT the Nikahnama and police has recorded the statement of his son. 23.While admitting this additional evidence and considering the contents thereof, the Court has applied its mind to the submissions made in this behalf by learned advocate Ms. Amee Yagnik and the learned Additional Public Prosecutor Mr. K.T. Dave. Mr. Dave has fairly submitted that since the prosecutrix has taken the stand before the Trial Court that she was forced to sign Nikahnama and since the defence has not examined these persons as their own witnesses, the learned Additional Sessions Judge has rightly convicted the accused for the offence punishable under Sections 363, 366 & 376 of the Code. However, in view of the affidavit of the prosecutrix dated 30.05.2005, settlement dated 07.07.2005, additional evidence brought on record now, happy and peaceful married life of the prosecutrix with her new husband and newly born child and deposit of Rs. 2 Lacs in her name jointly CR.A/976/2002 24/42 JUDGMENT with her husband and father, he has nothing to say in the matter. In this fact situation, the Court does not think it necessary to discuss about the evidence in great detail brought on record by the prosecution, during the course of trial. 24. The Court has also considered that the prosecutrix for the first time in her further statement pursuant to her complaint dated 05.06.2001 had come out with a version that implicated the accused for the offence punishable under Section 376 of the IPC. During the trial, it was brought on record that she got married to the accused and the Nikahnama showing the accused and prosecutrix as married was produced on record of the case at Mark B. The prosecutrix in her deposition at Exh. 6, page 34, has identified her signature in the Nikahnama, which is in Urdu language and has been translated in both, the Gujarati and English language and the same is produced along with the present application filed under Section 391 of the Code of Criminal CR.A/976/2002 25/42 JUDGMENT