CR.A/79/1996 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 79 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED sd/- ========================================= 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 ? ========================================= RATILAL MAGABHAI VASAVA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================= Appearance : MR US BRAHMBHATT, ADVOCATE APPOINTED BY LEGAL AID COMMITTEE for Appellant(s) : 1, MR MUKESH PATEL, APP, for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 15/07/2008 CR.A/79/1996 2/22 JUDGMENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present Appellant – original accused in Sessions Case No. 250 of 1994 was charged and tried by the learned Additional Sessions Judge, Vadodara, for the offences punishable under Sections 376, 323 and 341 of Indian Penal Code (for short “IPC”). 2. The facts of the prosecution case is that the complainant Maniben, wife of Budhabhai Bhailal Vasava was staying at her paternal house at village Mata Bhagod, Taluka Savli. She was married with Budhabhai Bhailalbhai, resident of Satnagar village, Taluka Savli, but, due to family dispute her husband went away to Madras and since last 12 months from the date of incident, she was staying with her parents. During the married life with her husband one son named Ravji, aged about 7 years and daughter Kamla @ Parul, aged about 4 years were born. It is the case of the prosecution that on 20.6.1994 paternal uncle of the complainant was CR.A/79/1996 3/22 JUDGMENT expired and for his funeral ceremony the complainant went to village Shikar Bhagol with her relatives and at that time her daughter Parul was also with her. When the complainant was busy in the said ceremony the prosecutrix was outside the house and at about 4.00 pm she came back and was crying. On being asked the minor girl narrated about the incident. Her clothes were also stained with blood. The prosecutrix explained to her mother – complainant that when she was playing near the house at that time she was tempted by the present appellant – accused. She was taken out by him at the field (place of incident) and committed the rape on her and then ran away. She also found some injuries on the cheeks. On inquiry the complainant found that the appellant – accused Ratilal Vasava has committed the rape on her minor daughter. Thereafter the complainant, with other persons and the accused, went to the police and filed complaint against the present appellant – accused at Savli Police Station. The Police has registered the offence punishable under Sections 376, 323 and 341 of IPC. CR.A/79/1996 4/22 JUDGMENT After registering the complaint the Panchnama was drawn. The prosecutrix and the appellant were sent for medical examination. The statement of witnesses were also recorded and thereafter on completion of investigation, the Police filed charge-sheet against the present appellant – accused. 3. When the offence of rape was registered against the present appellant – accused, at that time, the accused with an intention to commit suicide, has jumped into the well but he survived and the police has also registered the case against him for the offence under Section 309 I.P.C. and the chargesheet was also filed. However, in the said case he was acquitted. 4. After filing of the charge-sheet, in the present case, as the offence under Section 376 IPC is exclusively triable by the Court of Sessions, the learned JMFC, Savli, committed the said case to the Court of Sessions, Vadodara. CR.A/79/1996 5/22 JUDGMENT 5. The appellant – accused was not in a position to engage an Advocate to defend his case and hence, he was provided an Advocate by the Legal Aid Committee to defend his case. Thereafter the charge (Ex.1) was framed against the present – appellant accused. 6. In order to bring home the charge levelled against the accused, the prsecution has examined in all 10 witnesses and relied upon their oral testimonies. They are as under : P.W. 1 - Madhuben Lallubhai, Ex.5; P.W.2 - Panch Witness Dixitkumar Pravinchandra, Ex.6 P.W.3 - Panch Witness Kamlesh Jivanbhai Patel, Ex. 8 P.W.4 - Complainant Maniben Punjabhai at Ex.11; P.W.5 - Witness Manjulaben Naginbhai Vasava at Exh.14; P.W.6 - PSO Chhaganbhai Shankerbhai of Savli Police Station,Ex.15; CR.A/79/1996 6/22 JUDGMENT P.W.7 - Dr. Rajesh N. Desai, Ex.18; P.W.8 - Dr. Upen M. Mehta at Exh.20; P.W.9 - Ramjibhai Garbabhai Parmar, PSI – IO, Ex.24; P.W.10- Jivansinh Bhikhusinh Solanki, PSI at Ex.29 To prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under ; i. Panchnama of scene of offence, Exh. 7; ii. Panchnama of clothes of victim, Ex.9; iii.complaint at Exh.12; iv.Xerox copy of Death Certificate of Kamlaben Ex.13; v. Copy of Police station diary at Exh.16; vi.Yadi to Medical officer, Ex.21; vii.case papers, including medical certificates of the prosecutrix and the present appellant – accused at Ex.22; viii.Forwarding letter regarding receipt of Muddamal and the FSL Report at Exh.27 & 28; CR.A/79/1996 7/22 JUDGMENT ix.Yadi to Medical Officer at Exh.30; 7. Thereafter, after examining the witnesses the statement of accused under Section 313 Cr. P.C. was record in which the appellant – accused has replied all the questions in the negative, like “I do not know” or “it is a false contention”. 8. After considering the oral as well as documentary evidence the learned Additional Sessions Judge vide impugned Judgment dated 21.12.1995 in Sessions Case No.257 of 1994 held the accused guilty to the offences charged against him. The accused was convicted and sentenced to suffer rigorous imprisonment for life with fine of Rs.4000/- I/d to under-go further rigorous imprisonment for six months for the offence punishable under Section 376 I.P. Code, and was further convicted and sentenced to undergo rigorous imprisonment for six months with fine of Rs.500/- I/d to under go further imprisonment for one month for the offence punishable under section 323 I.P. Code and was also CR.A/79/1996 8/22 JUDGMENT convicted and sentenced for rigorous imprisonment for six months with fine of Rs.500/- I/d to under-go further rigorous imprisonment for one month for the offence punishable under Section 341 I.P. Code. The said sentence were ordered to run concurrently. The fine, if paid, was ordered to be paid to the prosecutrix on she attaining the majority and till then the said amount was directed to be invested in a Nationalized Bank. 9. Being aggrieved by and dissatisfied with the impugned Judgment and order of conviction and sentence passed by the learned trial Judge, the present appellant – original accused has filed this Appeal, through Jail. 10.Heard learned Advocate Mr. U.S. Brahmbhatt for the appellant and Mr. Mukesh Patel, learned APP for the respondent – State. 11.Learned Advocate Mr. Brahmbhatt has contended that the prosecution has not produced any sufficient CR.A/79/1996 9/22 JUDGMENT evidence to prove its case and only relied upon the oral evidence of the complainant and other relatives. It is also contended that there is no direct evidence to connect the accused with the guilt. The prosecution has also failed to establish the age of the prosecutrix and there is not a single iota of evidence to show that the prosecutrix baby was tempted by the present appellant – accused and she was taken by him at the field. There is also no direct evidence to show that the accused has committed any sexual intercourse with the prosecutrix. Mr. Brahmbhatt has further contended that the trial Court has not applied its mind and without considering the facts and circumstances of the case, convicted and awarded sentenced to the present appellant – accused, which is erroneous and against the provisions of law. Mr. Brahmbhatt has also read the deposition of the witnesses as well as the documentary evidence and contended that on account of some doubt, no person can be booked in such a serious offence. He has also contended that due to false involvement of the accused in the CR.A/79/1996 10/22 JUDGMENT offence he has tried to commit suicide for which an offence was registered and the accused was tried, but, he was acquitted. He has also prayed that sentence of imprisonment of life is also very harsh and, according to him, if the appellant - accused is held guilty the punishment awarded to him is required to be reduced. 12.On behalf of the State Mr. Mukesh Patel, learned APP has submitted that there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the appellant – accused had committed a rape on the minor prosecutrix. He further contended that from the evidence of the complainant and other witnesses as well as from the documentary evidence, the prosecution has proved that the appellant – accused has committed rape on a minor girl, aged about 4 years and the mother of the prosecutrix has boldly filed complaint against the accused without any fear. He has also contended that no mother would dare to file false complaint for such a serious offence of rape CR.A/79/1996 11/22 JUDGMENT involving her own daughter and that for a minor girl. He has also contended that from the documentary and medical evidence, produced before the trial Court, the age of the prosecutrix is also established. The medical Certificate shows that the hymen of the prosecutrix was ruptured and the injuries were also found on the private part as well as on the cheeks of the prosecutrix. The medical certificate in respect of the victim shows that there was profuse bleeding from the vagina of the prosecutrix. He has also contended that appellant – accused was also sent for medical examination and from the medical examination, it was also found that the appellant – accused was also having injury on the private part. He has also contended that after committing such a serious offence the appellant – accused has tried to commit suicide and due to that he has sustained fracture. He has contended that the conduct of the present appellant – accused is also required to be considered and further contended that in light of the ratio pronounced in land mark Judgment of the Hon'ble Apex Court as well as the Judgments of this CR.A/79/1996 12/22 JUDGMENT Court, the prosecution has established its case beyond reasonable doubt and prayed that the Judgment and order passed by the trial Court is required to be confirmed. 13.The Hon'ble Apex Court in a number of decisions held that “It is not the duty of the appellate Court when it agrees with the view of Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court.” The said law is laid down by the Hon'ble Court in the case of (1) GIRIJANANDINI DEVI & ORS. V/s. BIJENDRA NARAIN CHOUDHARY, reported in AIR 1967 SC 1124, and (2) in the case of STATE OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981 SC 1417. Yet, in the interest of justice and to observe said cause of Appeal in a legal way, we have discussed the evidence as well as the reasons assigned by the trial Court. 14.Complainant Maniben Punjabhai, PW 4, Exh.11 CR.A/79/1996 13/22 JUDGMENT narrated in her oral evidence that the date of birth and name of prosecutrix was entered into Birth Register, Ex.13, and according to the same the date of birth of the prosectrix was 15.2.1990 and as per date of birth of the prosecutrix, on the date of incident, she was 4 years old. The trial Court has explained the age of the prosecutrix with sound and proper reason and considered in a legal and proper manner. Therefore, the question of the age of the prosecutrix cannot be debatable at this juncture. The complainant in her deposition stated that she saw her daughter – prosecutrix in a bleeding condition. The complainant has asked the prosecutrix as to what happened, the prosecutrix has explained before her that the said act was done by the present appellant – complainant. The said version of the complainant was also supported by PW 1 – Madhuben Lallubhai, Ex.5. So, compared to the oral evidence of PW 1 and the complainant PW 4, the same was fully corroborated the version of FIR (complaint Ex.12). CR.A/79/1996 14/22 JUDGMENT 15.Panch witness Dixitkumar Pravinchandra, PW 2, Ex.6, was a Panch of scene of occurrence, has deposed in his examination that they have found foot marks of adult person as well as child. The said fact is also corroborated by the panchnama of scene of offence Ex.7. The complainant, P.W.1 Madhuben and the Panch witness P.W.2 were fully cross examined by the defence lawyer before the trial Court. From the evidence of these witnesses it appears that the present appellant – accused could not get out from the alleged illegal act of the accused and the accused has failed to establish his innocence. P.W.3 – Panch Kamlesh Jivanbhai Patel was also examined at Ex.8 in whose presence the Investigating Agency has seized the clothes of the prosecutrix and the appellant – accused after drawing the Panchnama Ex.9 and the clothes were sent to Forensic Science Laboratory for examination and Report. The said witness has also supported the version of the prosecution. 16.The prosecution has examined Dr. Rajesh N. Desai, CR.A/79/1996 15/22 JUDGMENT PW 7, Exh.18, who has examined the prosecutrix. He has explained the injuries on the prosecutrix. He has deposed that hymen was ruptured in a 2nd degree position of 2 cm deep and on both the cheeks of the prosecutrix brushes marks were found and there was bleeding from the private part of the prosecutrix. The case history was also noted by this witness (Medical Officer) from the complainant Maniben. The Medical Officer has deposed that hymen was ruptured and stitches were taken. The prosecutrix was made unconscious after giving anesthesia. As an medical expert he has clarified that presence of semen may not be available when there is continuous bleeding from the private part of the body. As per his opinion the age of the prosecutrix was about 4 to 5 years. Dr. Upen N. Mehta, Medical Officer, PW 8, was also examined at Exh.20. He is a Gynecologist. He has examined prosecutrix Parul as well as the appellant – accused. He has also deposed that abrasions on both the cheeks of the prosecutrix were found. Hymen was ruptured and bleeding was continued. He has also examined the appellant – CR.A/79/1996 16/22 JUDGMENT accused. The accused sustained fracture injury on left hand. The appellant – accused was also having abrasion on the private part of his body. He has taken a sample of blood, semen and pubic hair of the accused and sent for examination. In cross examination this witness has fairly admitted that he has a definite opinion that rape was committed on the prosecutrix. He has also issued Medical Certificate to that effect. 17.P.W. 5 Manjulaben Naginbhai Vasava, Ex.14, has fully supported the version of complainant as well as the version of PW 1 Madhuben Lallubhai. She deposed that there was profuse bleeding from the vagina of the prosecutrix and the clothes of Parul – prosecutrix were stained with blood. On being asked she said that she was taken by the accused to the field. The blood stains were there on private part. She, along with the complainant and P.W. 1 Madhuben went to the field where the appellant – accused was sleeping. Thereafter the accused was taken away by them to the Police Station. While CR.A/79/1996 17/22 JUDGMENT taking him to police station the accused jumped into the well, which shows the guilty mind of the appellant – accused. The said conduct of the accused is required to be considered. 18.The Hon'ble Supreme Court in the case of A.N.Venkatesh & ANR v/s. STATE OF KARNATAKA, reported in 2005 (3) CRIME 231 (SC) has held that by virtue of Section 8 of Evidence Act, the conduct of the accused person is relevant. The Hon'ble Apex Court has held that “by virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact.” The evidence of circumstances simplicitor that the present accused pointed out before all witnesses as well as at the time of filing of FIR before Police is that while taking him to police station,he jumped into the well to avoid legal action and due that fear he jumped into the well. The said conduct of the accused is relevant in eye of law in CR.A/79/1996 18/22 JUDGMENT the context of Section 8 of Evidence Act. 19.P.W. 9 – Ramjibhai Garbabhai Parmar, Investigating Officer, Ex.24, has carried out the investigation in a proper and legal manner. We have scrutinized the entire evidence, oral as well as documentary. From the deposition of this witness, the defence – present appellant has failed to establish that there was any negligence on the part of Investigating Officer in carrying out the investigation. In our opinion, the Investigating Officer has carried out the investigation in a fair and legal manner. 20.This is a complaint of rape on a 4 year old female baby child. In our orthodox society unless complaint is genuine no parents would dare to lodge false complaint of rape involving his/her own daughter in such a heinous incident, knowing fully well that the same would damage the honour of the family in the society. 21.This Court has considered the submissions CR.A/79/1996 19/22 JUDGMENT advanced by the learned Advocates appearing for the parties and perused the impugned Judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with criminal appeals, this Court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 21.As observed and discussed at length, in our opinion, in light of the documentary evidence i.e. Medical Certificate Exh. 12, it is established by the prosecution that injuries on a private part of the body of the prosecutrix as well as on the present CR.A/79/1996 20/22 JUDGMENT appellant – accused has proved that the present appellant – accused has committed a rape on the prosecutrix. There is no reason for the complainant to falsely involve the appellant – accused. The appellant – accused could have explained during recording of his further statement u/s. 313 Cr.P.C. the injuries received by him on his private part of the body, but, he has not explained anything. From the oral as well as documentary evidence adduced by the prosecution, in our opinion, the learned trial Judge has rightly convicted and sentenced the appellant – accused. Therefore, the conviction and sentence awarded by the trial Court against the appellant – accused does not call for any interference of this Court in exercise of appellate powers. 22.The learned Advocate, appearing for the appellant – accused, has lastly prayed that if this Court is of the opinion that the trial Court has rightly convicted and sentenced the accused then the leniency may be shown and prayed to reduce the quantum of sentence. We have gone through the Judgment and CR.A/79/1996 21/22 JUDGMENT order of the trial Court. We have also perused the record. In our opinion, the accused has committed a rape on a female child hardly of the age of 4 years. No leniency should be shown towards an offender like the present accused who has committed a rape on a girl – a baby child who is hardly 4 years old. 23.We find ourselves in complete agreement with the said finding, ultimate conclusion and resultant order of conviction passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned Judgment and order of conviction and sentence. 24.For the forgoing reasons the Appeal fails and is hereby dismissed. The Judgment and Order of conviction and sentence dated 21.12.1995 recorded by the trial Court against the appellant – accused in Sessions Case No.257 of 1994 is hereby confirmed CR.A/79/1996 22/22 JUDGMENT and maintained. Muddamal be disposed of in terms of directions contained in the impugned Judgment and order passed by the trial Court. 25.This Appeal is accordingly dismissed. Sd/- (A.M.KAPADIA,J.) sd/- (Z.K. SAIYED, J.) sas