CR.A/1154/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1154 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE AND HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================= 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 ? ========================================= TALASIBHAI RAMABHAI HARIJAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : MS BHARTI RANA for MR ANIL S DAVE for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 17/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1. The challenge in this appeal is to the judgment and CR.A/1154/2004 2/8 JUDGMENT order rendered by learned Additional Sessions Judge, Dhrangadhra in Sessions Case No.26 of 2003 recording conviction of the appellant – accused for the offence punishable under Section 376 of the Indian Penal Code ('IPC', for short) and awarded sentence of R.I for 10 years and fine of Rs.5000/-, in default of payment of fine R.I for 6 months. 2. The prosecution case in nutshell is as under:- 2.1 On dated 16.5.2003, when Bhavnaben was all alone in her mother's house, situated in the area called Indiranagar in Village Kherva, Tal.Patdi, and it is further the case of the prosecution that Bhavnaben was mentally retarded, it is alleged that at that time, the accused entered the house and committed sexual intercourse with Bhavnaben without her consent. It is further the case of the prosecution that at the time when the accused was committing rape, Bhavnaben's mother Ujiben abruptly came into the house and she saw the accused committing the rape. Seeing Ujiben entering the house, accused escaped from the house, pushing Ujiben. Ujiben lodged the first information report in Bajana Police Station. The police commenced the investigation, statements of material witnesses were recorded, Bhavnaben was sent for medical examination. After collecting required material for the purpose of filing chargesheet, police filed chargesheet against the accused in the Court of learned JMFC, Patdi. Since the offence was exclusively triable by the Court of sessions, the learned Magistrate committed the case to the Court of Sessions, Surendranagar, which came to be registered as Sessions Case No.26 of 2003. CR.A/1154/2004 3/8 JUDGMENT 3. The trial Judge framed charge against the accused at Exh.1, to which the accused did not plead guilty and claimed to be tried. Therefore, the prosecution adduced its oral and documentary evidence. After the completion of the oral evidence, the learned trial Judge recorded further statement of the accused under Section 313 of the Code of Criminal Procedure. The accused in his further statement generally denied all the allegations levelled against him by the prosecution and stated that for the purpose of extorting money, he was falsely implicated in this case. 3.1 After considering the evidence on record and the arguments advanced on behalf of both the sides, the learned trial Judge recorded the conviction of the accused for the offence punishable under Section 376 of the IPC and awarded sentence as hereinabove referred to in this judgment. 4. We have heard the submissions made on behalf of both the sides and we have considered the records and proceedings of this case in context with the submissions. 5. Learned advocate Ms.Bharti Rana appearing for learned advocate Mr.Anil S.Dave for the appellant submitted that the accused is falsely implicated in this case. That the prosecution failed to produce any evidence showing that prosecutrix Bhavnaben was mentally retarded. That no medical evidence to this effect is produced by the prosecution. It is further submitted that the FSL report cannot be relied upon for the simple reason that the forwarding letter numbers did not tally. It is further submitted that as per the prosecution case, so-called incident occurred in the house of the prosecutrix and in the neighborhood her relatives reside. CR.A/1154/2004 4/8 JUDGMENT There is no evidence that Bhavnaben ever shouted for help. Therefore, it is submitted that the appeal be allowed and the impugned order recording conviction be set-aside. Alternatively, it is submitted that lenient view may be taken in connection with the punishment awarded by the trial Court. 6. Learned APP Mr.Bhatt vehemently opposed this appeal and submitted that the prosecution successfully proved its case beyond any reasonable doubt, and that the sentence imposed by the trial Court is just and adequate, considering the circumstance in which the offence was committed. 7. The first informant Ujiben Motibhai is examined at Exh.26. According to her version, she is mother of Bhavnaben. She stated that Bhavnaben was married, but, since she was mentally retarded, she was driven away by her husband after 2 – 3 days of her marriage. That since then, Bhavnaben was residing with her. About the incident, she stated that she had gone to hospital and from hospital, she returned to her house, at about 10.30 a.m., and she stated that as soon as she opened the door of her house, which was not locked from within, she saw her daughter Bhavnaben and the accused. She categorically stated that she had seen the accused committing rape on her daughter Bhavnaben. As soon as the accused saw her, the accused tried to escape by pushing her and the accused left the house. She further stated that thereafter, she narrated the incident to her husband and went to the police station for lodgment of the FIR. Considering her cross- examination made on behalf of the defence, she reiterated her say that Bhavnaben was mentally retarded. It was alleged that she was in need of money and that the accused was money- CR.A/1154/2004 5/8 JUDGMENT lender, and therefore, with a view to extort money, accused was falsely implicated and she outright denied such suggestion. Nothing substantial is brought from her cross- examination on behalf of the defence, which would make her testimony a doubtful one. 7.1 Prosecution examined Bhavnaben at Exh.28. However, she only stated the names of her mother, brother and sister. The learned trial Judge made endorsement in her deposition that she was not understanding the question and replying properly, and it appeared to him that her mental condition was not good. It is further endorsed that she stated her age to be 45 years, but, she appeared to be aged about 19 to 20 years. 7.2 The prosecution examined Hetal Motibhai at Exh.27. She is child witness and younger sister of Bhavnaben. She is aged about 9 years at the time of her deposition. She stated that she was given Rs.10/- by the accused and the accused stated her to buy biscuit. That she went to buy biscuit and remaining amount of Rs.5/- was given back to the accused. That thereafter she went for her meal, her father had gone for labour-work and her mother and her elder brother had gone to hospital. She stated that she herself, her sister Bhavnaben and accused were in the house. She stated in her cross-examination that after she returned Rs.5/- to the accused, the accused had left the house. The witness is aged about 9 years. Under such circumstances, no adverse inference can be raised on the basis of her testimony that she did not narrate the incident of rape. However, as stated above, the first informant Ujiben is the eye-witness to the incident. CR.A/1154/2004 6/8 JUDGMENT The deposition of Hetal is important only to establish the fact that after her mother, father and brother left the house, the accused had come to the house. 7.3 Considering the testimony of Dr.Deepakbhai, Exh.16 and the certificate, Exh.20, it transpires that he had taken samples of blood, saliva, pubic hair and vaginal swab of Bhavnaben. The medical certificate showing the result of medical examination of Bhavnaben is produced at Exh.42. However, in the certificate itself, on behalf of the defence, clear endorsement is made that the defence has no objection if the certificate is exhibited. Therefore, the medical certificate, Exh.42 can be read in evidence and rightly considered by the trial Court in this case. The certificate reveals that there was no injury seen on external and internal genitals, hymen has all tears. 7.4 Exh.40 is the serological examination report, which reveals that the group of the semen of accused is “A”. Semen stain on chorni, nicker of Bhavnaben and on pant of the accused contains the semen of the accused of group “A”. Learned advocate Ms.Rana submitted that the panchas did not support the recovery of clothes in their testimonies. However, considering the serological report, it is stated that the vaginal swab of the prosecutrix contains semen of group “A” of the accused. 7.5. In the result, the FSL report duly corroborates the case of the prosecution. First informant Ujiben clearly deposed in her deposition that Bhavnaben had married. After 2 - 3 days, she was driven out by her husband, and since then Bhavnaben was residing with her. Thus, though Bhavnaben CR.A/1154/2004 7/8 JUDGMENT was married, she was not residing with her husband at the time of the incident. 7.7 On behalf of the appellant it was submitted that the prosecution should have produced some medical evidence showing that Bhavnaben was mentally retarded. It is true that the prosecution did not produce any medical evidence showing that Bhavnaben was mentally retarded, but, considering the deposition of her mother Ujiben, it clearly transpires that Bhavnaben was mentally retarded and it was this reason that after her marriage, Bhavnaben was driven out by her husband. The fact regarding the mental state of affair stated by Ujiben is not seriously challenged in cross- examination by the defence and even when Bhavnaben was examined as witness, as endorsed by the learned trial Judge, she was not able to reply properly and stated that her mental condition was not good. 8. Thus, re-appreciating the evidence on record, we are of the considered opinion that the learned trial Judge rightly convicted the accused for the offence punishable under Section 376 of the IPC. The learned trial Judge awarded sentence of R.I for 10 years and fine of Rs.5000/-. In the impugned judgment, the learned trial Judge assigned reasons while fixing the quantum of punishment. Considering the facts and circumstances of the case and particularly the fact that the victim was mentally retarded lady, we do not find any justification in reducing the quantum of punishment. CR.A/1154/2004 8/8 JUDGMENT 9. In the result, the appeal deserves to be dismissed. The appeal stands dismissed. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)