CR.A/1515/2003 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1515 of 2003 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 ? ========================================================= ISARAIL @ PAHELVAN MAMAD VAKILANSARI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS NITA C BANKER for Appellant(s) : 1, MR PD BHATE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/01/2008 ORAL JUDGMENT The appeal arises out of a judgment and order dated 18.1.2003 rendered by the learned Sessions Judge, Valsad in Sessions Case No.390 of 2002. CR.A/1515/2003 2/7 JUDGMENT 2. Appellant herein, original accused, was charged with offence punishable under sections 376 and 452 of the Indian Penal Code. Broadly stated, prosecution case was that on 25.10.2000 when the complainant was alone in her house, the appellant who was working in a tailor shop close-by knocked at the door, forced himself inside the house and committed sexual intercourse on the complainant against her wish. He was thus charged with offence of rape as well as trespass in the house of the complainant. The learned Sessions Judge convicted the appellant for both the offences. For offence under section 376, he was sentenced to seven years of rigorous imprisonment and for offence under section 452, he was sentenced to one year of rigorous imprisonment. Both the sentences were made to run concurrently. 3. The complainant who was examined as PW-1, Ex.7, stated that she along with her husband and daughter was residing in a rented house near Vrindavan studio since 15 years. Her husband was doing masonry job in the studio. On 22nd October 2000, her husband and daughter had gone to the native place. The incident took place on 25th October 2000. In the studio, there was a phone on which she received a call informing her that her husband and daughter reached safely. She thereafter came home. Since she was not well, she had lied down. At that time, she heard somebody shouting outside and kicking the door. She came out and opened the door and saw CR.A/1515/2003 3/7 JUDGMENT that the accused who was called as Pehelwan, whose real name she did not know, was standing outside. Accused was also working in the studio. He entered her house. When the complainant asked him why he had come, he caught her both the hands and dragged her inside the room. She struggled but could not free herself. There are only 4 houses in the neighbourhood which were not occupied. Accused lifted her saree and committed rape on her. He also inserted some object in her vagina, upon which she started bleeding and her saree had soaked with blood. She was then scared and went to the hospital. But there was no doctor there. While returning from the hospital, she had fallen down. She was therefore carried to Mamta hospital. She requested to call somebody from the studio. Sandipbhai came from there and went to call her relatives. She was thereafter shifted to Hariya hospital. When she reached there, she was not conscious. In the hospital she was operated. When she regained consciousness, police had come. The complainant had identified the accused before the Court. In the cross-examination, she denied the allegation that the intercourse had taken place with her consent. She denied that she used to borrow money from the accused. 4. PW-3, Vijay Kamli was examined at Ex.13. He was a rickshaw driver. In his rickshaw, the complainant was carried to Mamta hospital. After CR.A/1515/2003 4/7 JUDGMENT leaving her at Mamta hospital, he had left the place. 5. Dr.Rajendra Bhandari, PW-5 was examined at Ex.20. He had treated the complainant at Haria hospital on 25th October 2000. He stated that the patient was referred to him by Mamta hospital. When the complainant arrived at the hospital, she was bleeding profusely and she had become pale. Doctor had examined her. Internal examination revealed that about 2 c.m. inside the vagina, there was laceration and there was profuse bleeding from there. He had operated upon her. She was discharged from the hospital on 7.11.2000. He opined that the injuries could be caused by forcible intercourse. In the cross-examination, he denied the possibility of bleeding being attributed to other illness of the patient. He was firm that the bleeding was on account of the internal injury. He stated that such injury could be caused if an object was inserted inside the vagina. 6. One Mayur Jamnadas, PW-8 was examined at Ex.37. He was working as a Receptionist in Haria hospital at Vapi at the relevant time. He stated that when the complainant regained consciousness, he was present there. The patient informed that she was raped and that she wants to file a police complaint. He thereupon informed the police on telephone. 7. Primarily it was on the basis of the above CR.A/1515/2003 5/7 JUDGMENT evidence that the Trial Court recorded conviction of the appellant. 8. Having taken into account the evidence on record I find that there was sufficient and clear evidence against the appellant to hold him guilty of both offences punishable under sections 376 and 452 of the Indian Penal Code. 9. The complainant had in clear terms in her deposition before the Court described the manner in which the incident took place. She was alone home in the afternoon. Her husband and daughter had gone to native place. She was staying in house where there were a few blocks around. She stated that the other blocks were not occupied. Significantly, there was no cross-examination on this aspect of the matter by the defence. Therefore, even if the complainant had raised an alarm, it was possible that she would not have received any help. The accused was known to the complainant before hand as he was working in the studio closed to house where the complainant was residing. Husband of the complainant was also working in the same studio. Further,the averment of the complainant that her husband and daughter had gone to the native place when the incident took place was also not doubted by the defence. 10. Considering the above aspects of the matter and taking into account the details given by the complainant in her deposition regarding the manner in CR.A/1515/2003 6/7 JUDGMENT which the incident took place, I have no reason to doubt her clear and reliable testimony. In addition to her own account, there are several other circumstances which corroborate her testimony. As noted, the prosecution examined the rickshaw driver Vijay, PW-3 who had carried her to the hospital in his rickshaw. Receptionist at the Haria hospital, namely, Mayurbhai, Ex.8 was an important witness. When the complainant regained consciousness at the hospital, she immediately requested Mayurbhai who was present there to inform the police about the rape since she wanted to file complaint. 11. Dr.Rajendra, PW-5, who had treated the complainant also corroborated her testimony in his deposition. He had found internal injury leading to profuse bleeding in the vagina of the complainant. She had to be operated to stop the bleeding. She had to be admitted in the hospital from 25.10.2000 to 7.11.2000. He stated that due to excessive bleeding the complainant had became pale. He opined that the reason for bleeding was internal injury. He further stated that such injury could be caused either by forcible intercourse or by inserting some object in the vagina. Medical evidence thus is perfectly in consonance with the eye-witness account of the complainant who stated that accused not only had forcible intercourse with her but also inserted some object in her vagina. There is no reason to discard or disbelieve the evidence of the complainant herself which is corroborated on various aspects by CR.A/1515/2003 7/7 JUDGMENT independent reliable evidence. In my view, therefore, the Trial Court committed no error in convicting the appellant under section 376 as well as under section 452 of the Indian Penal Code. 12. In the result, appeal fails and is hereby dismissed. (Akil Kureshi, J.) (vjn)