CR.A/136/2003 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 136 of 2003 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 ? ================================================= ABU ISMAIL BALOCH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : CR.A/136/2003 2/38 JUDGMENT MR MM TIRMIZI for Appellant(s) : 1, MR KT DAVE, Additional Public Prosecutor for Opponent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 23/02/2007 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 4.12.2002 rendered in Sessions Case No.10 of 1993 by the learned Additional Sessions Judge, 6rd Fast Track Court Judge, Junagadh, by which the appellant – Abu Ismail Baloch (“the accused” for short) has been convicted for commission of the offence punishable under Section 376, 506 (2) and 342 of the Indian Penal Code (“IPC” for CR.A/136/2003 3/38 JUDGMENT short) and sentenced to suffer RI for 10 years and fine of Rs.2,000/- and in default thereof, to undergo SI for 1 year for the offence punishable under Section 376 of IPC and SI of 6 months and fine of Rs.500/- and in default thereof SI for 7 days for the offence punishable under Section 506 (2) of the IPC and fine of Rs.75/- and in default thereof to undergo the sentence of SI of 2 days for the offence punishable under Section-342 of the IPC. Both the substantive sentences were ordered to run concurrently. 2.Since the facts of the case have been detailed in the judgment of the learned Additional Sessions Judge, Junagadh, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are as under:- CR.A/136/2003 4/38 JUDGMENT 3. On 10.8.1992 at about 9:30 in the morning when the complainant, namely, Ameenaben Umerbhai Shaikh and prosecutrix were at their house, the accused had come in drunken condition. The prosecutrix was the daughter of the complainant from her previous husband. She got married to one Salim at Jamnagar. As he was harassing her, she has returned to her home after 5 to 6 months of marriage. On 10.8.1992 when both the complainant as well as prosecutrix were in the house, the husband of the complainant, namely, Abu Ismail Baloch -accused herein pushed the complainant out of the house and told her to kill if she would say any one about this incident. The prosecutrix was in the house. She was retained in the house and the house was locked from inside. The complainant shouted and went to the house of the neighbour – Saiyedbin, who was working in Railway and residing nearby. The complainant told him CR.A/136/2003 5/38 JUDGMENT about the incident and she was asked to state the said facts in the Police Station. The complainant thereafter went in the rickshaw to the Police Station. The two police men came to her house from the Police Station, at that time the prosecutrix had narrated the incident stating that her father Abu Ismail – accused herein pushed her and forcibly shut her mouth with plug and raped on her. There was bleeding from her vagina. She started crying. She became so frightened that she could not speak. She was immediately taken to the Government Dispensary and her treatment was going on. Thus, the complainant's husband has committed rape on her daughter, aged about 18 years, from the previous husband against her desire, by shutting her mouth with plug after pushing her out and shutting the door from inside in drunken condition at about 9:30 o'clock in the morning on 10.8.1992 in the Railway Quarter. CR.A/136/2003 6/38 JUDGMENT 4. An FIR with respect to the alleged incident was filed by the mother of the prosecutrix, namely, Ameenaben against the accused at Junagadh Police Station, where it was registered vide CR No.I-55 of 1992 for commission of the offence punishable under Sections-376, 504, 506(2) and 342 of the IPC. 5. After registration of the complaint, investigation was put into motion. Panchnama of the scene of offence was drawn. Statement of the witnesses were recorded. Clothes of the prosecutrix as well as accused were recovered and sent for FSL for chemical analysis. On receipt of the report from FSL, as sufficient incriminating evidence was found against the accused for commission of the offence of committing rape with the prosecutrix, a charge-sheet was filed against the accused for commission of offence punishable under Sections 376, 506 (2), 504 CR.A/136/2003 7/38 JUDGMENT and 342 of IPC in the Court of learned Judicial Magistrate First Class at Junagadh. 6. As the offence under Sections 376, 506 (2), 504 and 342 of IPC is exclusively triable by the Court of Sessions, the learned JMFC, Junagadh committed the case to the Sessions Court, Junagadh. 7. The learned Additional Sessions Judge, Junagadh to whom the case was made over for trial, framed charge against the accused for commission of the offence punishable under Sections 376, 506 (2), 504 and 342 of IPC. The charge was read over and explained to the accused. As the accused pleaded not guilty to the charge, he was put to trial and tried by the learned Additional Sessions Judge, Junagadh in Sessions Case No. 10 of 1993. 8. In order to bring home the charge levelled against the accused, the prosecution has, in CR.A/136/2003 8/38 JUDGMENT all, examined as many as 11 witnesses, the details of which have been given in paragraph 3 of the impugned judgment and order and the same are as under :- Sr.N o. Particulars Exh.N o. Page No. 1 P.W No.1 – Dr.Jadavbhai Jerambhai Adhera. 13 29 to 30 2 P.W No.2 – Ameenaben Abu Ismail Baloch. 17 34-36 3 P.W No.3 – Saiyedbin Kaderbhai. 19 40-41 4 P.W No.4 – Vali Mahammedbhai. 20 42 5 P.W No.5 – Batukbhai Chanabhai. 22 46-47 6 P.W No.6 – Virjibhai Chhaganbhai. 23 48-49 7 P.W No.7 – Prosecutrix. 24 50-51 8 P.W No.8 – Sureshbhai Parsottambhai. 25 52-53 9 P.W No.9 – Nagarsinh Virsinh. 26 54-55 10 P.W. No.10 – Dr.Govindji Muljibhai Makwana. 33 66-67 11 P.W. No.11 – Siddiqmiya Hussenmiya. 47 89-91 9. To prove the culpability of the accused, the prosecution has also produced number of documents and relied upon the contents of the same, details of which, enumerated in CR.A/136/2003 9/38 JUDGMENT paragraph 3 of the impugned judgment and order, are as under :- Sr.N o. Type of Evidence Exh.N o. Page No. 1 Charge. 1 10-11 2 FIR. 28 57-60 3 Extract from the Station Diary. 29 61 4 Extract from the Entry No.9/92 from the Station Diary. 30 62 5 FSL Resport. 42 79-80 6 Serological Report. 43 81 7 FSL Report. 45 83-86 8 Serological Report. 46 87-88 9 Panchnama. 48 92-93 10. After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Junagadh, 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 CR.A/136/2003 10/38 JUDGMENT prosecution in its entirety and submitted that he has been falsely implicated in the offence alleged against him. However, he did not lead any evidence nor did he examine any witness in support of his defence. 11.On appreciation, evaluation, analysis and scrutiny of the evidence, the learned Additional Sessions Judge, Junagadh came to the conclusion that the accused has committed an offence punishable under Section 376, 506 (2) and 342 of IPC. He however has acquitted the accused from the charge of offence punishable under Section-504 of IPC. On the basis of the said finding, the learned Additional Sessions Judge, Junagadh has convicted the accused for commission of the offence punishable under Section 376 IPC and sentenced him to suffer RI of 10 years and fine of Rs.2,000/- and in default of payment of fine, SI for 1 year, and also awarded CR.A/136/2003 11/38 JUDGMENT sentence of S.I. Of 6 months with fine of Rs.500/- and in default thereof, S.I. of 7 days under Section 506 (2) of IPC and fine of Rs.75/- and in default thereof SI for 2 days, under Section-342 of IPC which has given rise to the instant appeal at the instance of the accused. 12.Mr. M.M.Tirmizi, learned advocate appearing for the accused has taken us through the oral as well as documentary evidence which are on record and also assailed the judgment and order of the learned Additional Sessions Judge, Junagadh. He has further submitted that the learned Additional Sessions Judge, Junagadh has erred in convicting the accused though there was no cogent or adequate evidence showing his guilt in the matter. He has further submitted that the learned Additional Sessions Judge, Junagadh has failed to appreciate that the appellant is CR.A/136/2003 12/38 JUDGMENT innocent and has not committed the alleged offence. He has further submitted that the evidence pressed into service by the prosecution is untrustworthy, unreliable and can never form basis of conviction. 13. At the out set, he has raised the first contention that the prosecution version is highly improbable and in the background of the facts of the present case, it is clearly indicated that there was false implication of the accused. He has further submitted that considering the contradictions in the evidence of the witnesses with their police statements, this is the case of false implication of the accused. As per the evidence of the prosecutrix (P.W.-7, Ex.24) she deposed in para-2 of the testimony that when the accused had come in the house the complainant, namely, Ameenaben was not present in the house. However, as per the evidence of the complainant (P.W.2, Ex.17) in CR.A/136/2003 13/38 JUDGMENT para-2 of her evidence she stated that she was pushed out by the accused when the accused came in drunken condition. Therefore, there is clear contradiction between the evidence of prosecutrix and that of the complainant regarding presence of complainant at the time of alleged offence. He has, therefore, urged that the prosecution has failed to establish its case to sustain the order of conviction beyond reasonable doubt and the evidence of above important witnesses are not reliable so as to hold that the accused is guilty. He has further submitted that the prosecutrix has stated in para-2 of her testimony that the accused had threatened her by showing knife. However, in her cross- examination in para-3 she admitted that this fact has not been recorded in her police statement and she further admitted there was no attack made by the accused. He has further submitted that the prosecutrix has deposed in para-2 of her evidence that the CR.A/136/2003 14/38 JUDGMENT accused had put his four fingers in her private part and had made attempt to have sexual intercourse with her. She further stated in her cross-examination that the accused had not done anything except putting his fingers in her private part. This fact is also corroborated by the evidence of medical officer, namely, Dr.Jadavbhai Jerambhai Adhera (P.W.1, Ex.13) who has examined the prosecutrix. The doctor has stated in para-3 of his evidence that the injury sustained by the prosecutrix on her private part may be possible by artificial instrument. Even if the evidence of complainant and prosecutrix are to be accepted to some extent, in view of the medical evidence, it does not constitute an offence under Section-376 of IPC. He has, therefore, submitted that in the facts and circumstances of the case it is not enough to implicate the accused in the alleged crime. All the circumstances show that the CR.A/136/2003 15/38 JUDGMENT investigating agency has falsely roped the accused in the alleged offence. He has, therefore, submitted that the impugned judgment and order passed by the learned Additional Sessions Judge, Junagadh is required to be quashed and set aside and the accused is required to be released forthwith. 14. The second point raised by Mr.Tirmizi is with regard to the evidence of the prosecutrix even if accepted does not prove the commission of rape and the medical evidence also supports such a view. At the most, it can be said that there was an attempt to commit rape but the act was not actually done. He has, therefore, submitted that the sine qua non of the offence of rape is penetration. Putting fingers in the private part of the prosecutrix without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section-376 of IPC CR.A/136/2003 16/38 JUDGMENT refers to “sexual intercourse” and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the present case that connection has not been established. The evidence of P.W.-7 only reveals that the accused had attempted to rape and put his fingers in her private part and there being no penetration the evidence of P.W.-2, namely, Ameenaben to the effect that she witnessed the alleged offence cannot be accepted. At the most the accused has made an attempt to commit an offence. In that view of the matter, he has submitted that the conviction and sentence to the accused for the offence punishable under Section-376 of IPC cannot be sustained. 15. The last and third point raised by Mr.Tirmizi is with regard to that the accused CR.A/136/2003 17/38 JUDGMENT was in drunken condition at the time of alleged offence and considering these circumstances it could not have been possible for the accused to commit alleged offence of rape. He has submitted that as per the evidence of P.W-2, namely, Ameenaben, P.W.-3 – Saiyedbin Kaderbhai, P.W.-6 Virjibhai Chhaganbhai, P.W.-7 prosecutrix, P.W.-10 – Dr.Govindji Muljibhai Makwana and evidence of P.W.-11 – Investigating Officer, Siddikmiya Hussainmiya Kadri, all the witnesses have stated in their evidence that the accused was in drunken condition at the time of alleged offence. The doctor, namely, Govindji Muljibhai Makwana has stated in his evidence that it is impossible to do physical intercourse in the drunken condition. In the present case, the learned Additional Sessions Judge, Junagadh has not considered this aspect while deciding the fate of trial. When the evidence of above witnesses are considered in the proper perspective, it is CR.A/136/2003 18/38 JUDGMENT clear that the commission of actual rape has not been established. 16. Mr.Tirmizi has further submitted that as per the case of the prosecution due to enmity for Rs.80,000/- the accused had attempted to commit rape. However, as per the settled law, enmity is double edged weapon. In fact, the possibility of the prosecutrix making the accused to consume liquor so that his clothes can be removed and a “scene” be created. Since the accused being a step father could not have raped, she inserted some artificial instrument to cause injury in the inner side of the vagina as per the evidence of the doctor – P.W.-1. It was thus, natural for the accused to be found naked as the prosecutrix was determined to implicate the accused. 17. On overall view of the matter and on proper appreciation of the evidence, CR.A/136/2003 19/38 JUDGMENT Mr.Tirmizi has submitted that there is gross infirmity and illegality in the reasons assigned by the learned Additional Sessions Judge, Junagadh for convicting the accused and, therefore, there is valid reason and justifiable ground to interfere with the impugned order convicting the accused for the offence for which he was charged. 18. In support of his submissions, Mr.Tirmizi has relied on the decisions of the Hon'ble Supreme Court in the case of Sakshi Vs. Union of India and others, reported in (2004) 5 Supreme Court Cases 518, wherein it is held that the dictionary meaning of the words “sexual intercourse” is heterosexual intercourse involving penetration of the vagina by the penis. If the hymen is ruptured by inserting a finger, it would not amount to rape. 19. Mr.Tirmizi has further relied on the CR.A/136/2003 20/38 JUDGMENT decision of the Hon'ble Supreme Court in the case of Aman Kumar and another Vs. State of Haryana, reported in AIR 2004 Supreme Court 1497, wherein it is held that it is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particular. She stands at a higher pedestal then an injured witness. In the latter case, there is injury on the physical form, while in the former, it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the versions of the prosecutirx on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice. CR.A/136/2003 21/38 JUDGMENT 20. Mr.Tirmizi has further relied on the decision of the Hon'ble Supreme Court in the case of Koppula Venkat Rao Vs. State of Andhra Pradesh, reported in AIR 2004 Supreme Court 1874, wherein it is held that an attempt to commit an offence is an act, or a series of facts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw or intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation CR.A/136/2003 22/38 JUDGMENT of the act attempted. The illustrations given in S.511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 21. Based on the aforesaid judgments of the Hon'ble Supreme Court and the evidence which has come on record Mr.Tirmizi has strongly urged that the accused has not committed any offence under Section-376 of the IPC and even if the prosecution version is accepted, it was merely an attempt and actual rape was not committed. The accused therefore at the most should have been convicted for the offence punishable under Section-376 read with Section-511 and in that case, the sentence should have been reduced to one half of the actual sentence awarded to the accused. Since the accused has already undergone the sentence of more than 5 years and 2 months, which is more than the sentence that can be awarded to the accused under Section-376 read CR.A/136/2003 23/38 JUDGMENT with Section-511 of the IPC, the accused should be ordered to be released forthwith. 22. Mr. K.T. Dave, learned Additional Public Prosecutor, on the other hand, has supported the order and judgment of the learned Additional Sessions Judge, Junagadh and submitted that the prosecution has established the charge levelled against the accused beyond any reasonable doubt. The documentary evidence on the record of the proceedings clearly establish the involvement, presence and role of the accused for the offences charged against him. He has further submitted that despite the fact that the prosecutrix's own version before the Court merely refers to insertion of fingers in her private part she has deposed about the actual penetration in her police statement. The prosecutrix has changed her version to that effect, as it is quite contrary to the statement which she has made before the CR.A/136/2003 24/38 JUDGMENT police. The learned Additional Sessions Judge, Junagadh has rightly not accepted this part of the deposition of the prosecutrix in view of the deposition of her mother, medical evidence and FSL Report. He has, therefore, submitted that the learned Additional Sessions Judge, Junagadh has discussed at length this aspect of the matter, which is based on correct appreciation of evidence and on sound reasoning, which should not be interfered with by this Court. 23.We have considered the submissions advanced by the learned advocates appearing for the parties at length 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 with reference to broad and reasonable probabilities of the case. We CR.A/136/2003 25/38 JUDGMENT have also gone through the entire testimonial collections. We have applied our mind to the judgment and order passed by the learned Additional Sessions Judge, Junagadh, convicting the accused for commission of the offence punishable under Sections 376, 506(2) ad 342 of IPC and sentence awarded to him for this offence, reference of which is already made in earlier part of this judgment. 24.In order to find out whether the prosecution has established the charge against the accused beyond reasonable doubt and whether the learned Additional Sessions Judge, Junagadh has recorded a just and correct conclusion holding the accused guilty, we may first advert to the oral testimony of the prosecution witnesses. 25. P.W.-7 - prosecutrix is examined at Ex.24. CR.A/136/2003 26/38 JUDGMENT She testified that she and her mother were in the house and at about 8 to 9 a.m when she was about to leave her house for work, the accused entered in the house in drunken condition. He pushed the prosecutrix and compelled her to sleep by showing knife. He used force on her and inserted his four fingers in the private part of the prosecutrix. Her mother has gone to the Police Station, as per the advise of the neighbour and when the police came the prosecutrix as well as the accused were in naked condition. She has further testified that the accused has thrown her on coat, and made an attempt to rape on her. In her cross-examination, she testified that her real father expired and amount of compensation received on the death of his father, was given to the accused by her mother. Her mother was fed up with the accused. She admitted in her cross- examination that the accused has not done CR.A/136/2003 27/38 JUDGMENT anything except inserting the four fingers in her private part. She has, however, denied that she has herself inflicted injuries in her private part. 26. It appears that the prosecutrix has changed her version and did not admit that the accused has committed rape on her, whereas she has stated this very fact in her police statement. She has also narrated the entire incident before the mother on the basis of which the complaint was filed. Not only that when she was admitted in the hospital, she has given her story before the Medical Officer, wherein also she has stated that the accused has committed rape on her. The Court normally accepts the evidence of the prosecutrix. However, when contradictions are found and the prosecutrix's version goes contrary to her own statement made before the police and other corroborative evidence, in that case the Court is little slow to accept CR.A/136/2003 28/38 JUDGMENT the evidence of the prosecutrix. Here in the present case, the accused is step father of the prosecutrix and when she gives her