CR.A/117/2000 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 117 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= PRABHATSINH KUVARSINH THAKOR - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MS SADHNA SAGAR , 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 : 24/07/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) CR.A/117/2000 2/23 JUDGMENT 1. The present Appellant – original accused in Sessions Case No. 87 of 1998 was charged and tried by the learned Additional Sessions Judge, Banas Kantha at Deesa, for the offences punishable under Sections 363, 366, 376, 506(2), 323, 201 of Indian Penal Code (for short “IPC”). 2. The facts of the prosecution case is that the complainant Sonaben is the mother of victim Kankuben. On 16.5.1998 there was a marriage of Babiben, daughter of Kehalsing at Samo Mota Gam and, therefore, in the evening the complainant along with her children had gone to take meal. After finishing the meal, the complainant and her elder daughter Chehaben stayed at the marriage place and about 2.00 O'clock in the night they went to their house. At that time victim Kankuben was not found in the house. The complainant thought that Kankuben might be there at the place of marriage. On 16.5.1998 the complainant wake up in the morning at about 7.00 am and at that time also the victim could not be found and was not there for CR.A/117/2000 3/23 JUDGMENT taking tea. The complainant had thereupon gone to search the victim. The complainant went to the place of Ubja Thakore where the Janaiyaas (the persons who came to attend the marriage) were given space for their stay. There near the place of Ubja Thakor the victim was found lying on earth. Her clothes (Ghaghari) was found with blood stain. There was abrasion on the neck. The victim was shivering. The complainant, thereupon, asked the victim as to what happened. At that time victim told to her mother - the complainant that “yesterday when she was playing at the house at that time in the evening Prabhatsinh Kunversingh Thakor came there and took her at Khadveda where baval trees are there. Thereafter he caught her neck and pushed and pulled down her on the earth and committed sexual intercourse. As she was suffering severe pain she tried to shout. The accused had pressed her neck and told that “if you raise shout I will kill you” and he continued to do intercourse with her. Thereafter the accused ran away. She told to her mother that due to severe pain she could not stand up and laid CR.A/117/2000 4/23 JUDGMENT down there and thereafter after some time, she came back to the place of marriage. The complainant has checked her vagina and found that there was profuse bleeding and swelling. Her cloth (Ghaghri) was also having profuse bleeding. Thereafter she came to her house and informed Kalpatsing Khengarji and Nensing Surarjji and thereafter they had gone to file complaint against Thakor Prabhatsing Kunvarsingh. Thereafter the complainant filed complaint against the accused at Deesa Rural Police Station, Deesa. The Police has registered the complaint vide CR No.94 of 1998 against the accused for the offences under Sections 363, 366, 376, 323, 506(2), 201 I.P. Code. After registering the complaint the investigation was handed over to P.S.I. Chauhan. Thereafter statement of the witnesses as well as the prosecutrix were recorded, panchnamas of physical condition of the victim as well as of the accused were drawn and the clothes of the prosecutrix were seized. The prosecutrix and the appellant were sent for medical examination. Thereafter on completion of investigation, the Police filed charge-sheet against CR.A/117/2000 5/23 JUDGMENT the present appellant – accused. 4. After filing of the charge-sheet, in the present case, as the offences charged against the accused were is exclusively triable by the Court of Sessions, the learned JMFC, Deesa, committed the said case to the Court of Sessions, Banas Kantha. Thereafter the charge (Ex.2) was framed against the present – appellant accused to which the accused pleaded not guilty to the charge. 5. In order to bring home the charge levelled against the accused, the prosecution has examined in all 10 witnesses and relied upon their oral testimonies. They are as under : P.W.1 – Sonaben Nathuji Thakor, complainant, Ex.11 P.W.2 – Dr. Dhirajbhai Devabhai Jaganiya, Medical Officer, Civil Hospital, Palanpur, Ex.13, who has examined the victim – prosecutrix; P.W.3 - Kankuba Nathuba, prosecutrix, Ex.19; P.W.4 – Ranjanben Parsottambhai Khatri, Ex.20, Panch witness; P.W.5 - Chandansinh Surajmal, Ex.24; Panch witness; CR.A/117/2000 6/23 JUDGMENT P.W.6 - Ishwarsingh Shankersingh, Ex.26, Panch witness; P.W.7 - Mohanbhai Gamanbhai, Ex.37; P.W.8 - P.S.I. Dhanesinh Ajitsinh Chauhan, I.O., Ex.33; To prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under ; i. Complaint Exh. 12; ii. Medical Certificate of victim, Ex.14; iii.Yadi sent to Medical Officer, Deesa – Exh.15; iv.Medical Certificate of injured - Ex.16; v. Yadi sent to Medical officer for medical check- up of accused at Exh.17; vi.Panchnama, Ex.23; vii.Panchnama of scene of offence, Ex.25; viii.Panchnama of accused – Exh. 30; ix.Yadi sent by P.S.O to PSI Exh. 32; x. Yadi to FSL, for sending muddamal for examination, Exh. 34 xi.Receipt from FSL, Exh.35 CR.A/117/2000 7/23 JUDGMENT 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. 8. After considering the oral as well as documentary evidence the learned Additional Sessions Judge vide impugned Judgment dated 13.1.2000 in Sessions Case No.87 of 1998 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.5000/- I/d to under-go further rigorous imprisonment for two months for the offence punishable under Section 376 I.P. Code, and was further convicted and sentenced to undergo rigorous imprisonment for 7 Years and to pay fine of Rs.2500/- I/d to under go further rigorous imprisonment for one month for the offence punishable under section 366 I.P. Code and was also convicted and sentenced for rigorous imprisonment for three months with fine of Rs.100/- I/d to under-go further rigorous imprisonment for seven days for the CR.A/117/2000 8/23 JUDGMENT offence punishable under Section 506(2) I.P. Code. The accused was not held guilty to the charge punishable under Section 363 of I.P.Code by the learned trial Judge. The said sentences were ordered to run concurrently. Muddamal was ordered to be disposed of. 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 Ms. Sadhna Sagar for the appellant and Mr. Mukesh Patel, learned APP for the respondent – State. 11.Learned Advocate Ms. Sadhna Sagar has contended that the prosecution has not produced any sufficient and cogent evidence to prove its case beyond reasonable doubt. No statement of any independent eye witness was taken. The accused is falsely CR.A/117/2000 9/23 JUDGMENT involved in commission of offence to take revenge and the complaint was filed late after the alleged incident occurred. She has also contended that there is sufficient lacuna in medical Report. From the oral evidence of complainant as well as of the prosecutrix the appellant was wrongly booked in commission of said offences. 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 to commit sexual intercourse. There is also no direct evidence to show that the accused has committed any sexual intercourse with the prosecutrix. Ms. Sadhna Sagar 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. Ms. Sadhna Sagar has also read the deposition of the CR.A/117/2000 10/23 JUDGMENT 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. She has also prayed that sentence of imprisonment of life is also very harsh and, according to her, 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 the prosecutrix as well as from the documentary evidence, the prosecution has proved that the appellant – accused has committed rape on a minor girl, 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 involving her own CR.A/117/2000 11/23 JUDGMENT daughter and that too 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 neck of the prosecutrix. The medical certificate in respect of the victim shows that there was 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 some abrasions on the legs. He has also opined that if a person doing intercourse on the earth such type of injuries are possible. 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 Court, the prosecution has established its case beyond CR.A/117/2000 12/23 JUDGMENT 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 Sonaben Nathuji Thakor, P.W. 1, Ex.11, in her deposition has fairly deposed that on CR.A/117/2000 13/23 JUDGMENT being asked prosecutrix Kankuben told her that accused had taken her to the Khadvedi Bavalia and there he committed rape on her. She has denied that due to personal enmity they wrongly involved the accused in such offences. Prosecutrix Kankuba, P.W. 3, Exh. 19, has deposed in her examination that at the time when she was playing out side her house accused Prabhat came there and took her to Khadvedi Pond. She tried to shout but the accused pressed her neck and gave threat to her that if she will shout, he (accused) will kill her. Thereafter accused pulled down her on the earth and committed sexual intercourse on her. Blood was coming out from her vagina and thereafter she was unconscious and the accused ran away. Her clothes were also stained with blood. She has clearly identified the accused in the Court. In cross examination also this witness has sticked to her evidence. The say of the prosecutrix is clearly supported by the medical evidence. Dr. Dhirajbhai Devabhai Jagania, P.W. 2, Exh.13, in his deposition has deposed that he has examined the prosecutrix as well as accused. On CR.A/117/2000 14/23 JUDGMENT examination, he found that prosecutrix was conscious but she was shivering; was having abrasions on neck; hymen was ruptured and there was clotting of blood. In the opinion of Medical Officer, sexual intercourse committed on the prosecutrix may be between 12.00 to 18.00 hours. On the same day, he also examined the accused. The abrasions on both the legs of accused were found. He deposed that the injuries received by the accused may be between 12.00 to 18.00 hours. The complainant in her deposition stated that she saw her daughter – prosecutrix in a bleeding condition. The complainant asked the prosecutrix as to what happened and the prosecutrix has explained before her that the said act was done by the present appellant – accused. 15.The prosecution has examined Ranjanben Parsottambhai Khatri, P.W. 4, Exh.20. This witness is a panch witness of Panchnama of physical condition of the prosecutrix. In her presence the police has taken the possession of cloth (Ghagri) put on by the CR.A/117/2000 15/23 JUDGMENT prosecutrix which she identified before the Court. This witness has also explained the injury on the neck of the prosecutrix. The prosecution has also examined Chandansingh Surajmal, P.W. 5, Exh.24, who was the panch of panchnama of scene of offence. This witness has deposed that prosecutrix has shown the place from where the accused took her. Thereafter they had gone to the place of incident. The prosecutrix had taken them to Khedevadi Pond on western side where the foot- marks of elder person and small person were there on the earth. This witness has clearly deposed that in the night nobody is passing through the said road. The prosecution has also examined Ishwarsing Shankersing, P.W. 6, Exh.26, who was the panch of discovery panchnama of the clothes of the accused. The possession of the clothes of the accused under Section 27 of the Evidence Act was taken and the panchnama was drawn. 16.We have compared the evidence of witnesses as well as the circumstantial evidence. It is also established CR.A/117/2000 16/23 JUDGMENT that on doing sexual intercourse with the prosecutrix the accused must have received injuries on both the knee which were found by the Medical Officer as well as in the physical condition panchnama of the accused. It can easily be presumed that if a man is committing a sexual intercourse on earth then such type of injuries found, can be possible. From the medical examination it was also found that the hymen of the prosecutrix was ruptured. The Medical Officer has examined both, the prosecutrix as well as accused. The Medical officer is an independent witness and he has no personal enmity with the appellant to falsely involve him. 17.The prosecution has examined P.S.I. Dhanesinh Ajitsinh Chauhan, P.W. 8, Exh.33. He deposed in his evidence that he has made investigation in the case. He has taken the statement of prosecutrix. He has drawn the panchnama of physical condition of the prosecutrix and taken possession of the clothes of the prosecutrix in presence of Panch witnesses. He has sent the prosecutrix for medical examination. He CR.A/117/2000 17/23 JUDGMENT has also taken the statements of witnesses Jamuben, Nathuji Kalji, Dalpatsing and Nensingh. Thereafter the accused was arrested the the panchnama of physical condition of the accused was drawn. Thereafter, after receipt of the Report from the Forensic Science Laboratory and after completing the investigatin he produced accused before the Court. From the Serologist Report Ex.36 Blood Group “A” & “B” was found. From the Report it is found that the accused was having Blood Group “A” and the prosecutrix was having Blood Group “B”. 18.At Exh.2 the trial Court has framed charge under Sections 363, 366, 376, 506(2), 201 and 323 I.P. Code, but the prosecution has failed to prove the allegation regarding offence under Section 323, 201 I.P. Code. First of all looking to the ingredients of Section 363 I.P. Code, the question of “TAKING” consent of parent is required when the victim is minor. From the oral evidence of complainant – P.W. 1, it transpires that she is legal guardian of the prosecutrix. It is not the defence of the appellant CR.A/117/2000 18/23 JUDGMENT that consent was obtained from the legal guardian of the prosecutrix. The expression “takes or entices any minor” out of the keeping of the lawful guardian of such minor connotation - “The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words “takes or entices any minor .. out of the keeping of the lawful guardian of such minor” in Section 361, are significant. The use of the word “keeping in the context connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control appears to be compatible with the independency of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises.” CR.A/117/2000 19/23 JUDGMENT 19.We have also gone through the ingredients of Sections 366 and 376 I.P. Code. It is highly improbable that for making false implication a child of hardly 7 years would be used as a pawn, unmindful of the disrepute. She would have to live in public with a stigma for the rest of her life. The medical evidence is found has corroborated the testimony of prosecutrix. Vaginal swab of the prosecutrix was taken recently and bleeding was present. Injuries were there on her private part, as noticed by the Medical Officer, which shows the rape committed on her and the testimony of minor prosecutrix was not found to be suffering from any material inconsistency or infirmity. The statement of the prosecutrix was corroborated by medical evidence as also from the circumstantial evidence. The word used “force was seduced to illicit intercourse” in the provision of Section 376 I.P. Code means there must be forcing or seducing for the purpose of illicit intercourse in order that the offence under this part of section is committed. The word CR.A/117/2000 20/23 JUDGMENT “force” is used in its ordinary discretionary sense and imputes force by stress of circumstances. From the evidence of prosecutrix and complainant, P.W.1, Exh.11 and the complaint Ex.12 it is on record without any doubt the ingredients of Sections Sections 366, 376 I.P.Code have been proved. From the oral as well as documentary evidence the prosecution has proved its case beyond reasonable doubt. As per the prosecution case ingredients of provision of Section 506(2) I.P. Code criminal intimidation threats to cause death is also established. 20.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 CR.A/117/2000 21/23 JUDGMENT influences or is influenced by any fact in issue or relevant fact.” 21.This Court has considered the submissions 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. 22.As observed and discussed at length, in our opinion, CR.A/117/2000 22/23 JUDGMENT in light of the documentary evidence i.e. Medical Certificate, it is established by the prosecution that injuries on a private part of the body of the prosecutrix as well as on the present 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. 23.We find ourselves in complete agreement with the said finding, ultimate conclusion and resultant order CR.A/117/2000 23/23 JUDGMENT 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 13.1.2000 recorded by the trial Court against the appellant – accused in Sessions Case No.87 of 1998 is hereby confirmed and maintained. Muddamal be disposed of in terms of directions contained in the impugned Judgment and order passed by the trial Court. This Appeal is accordingly dismissed. Sd/- (A.M.KAPADIA,J.) Sd/- (Z.K. SAIYED, J.) sas