CR.A/873/2003 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 873 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE 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 ? ========================================================= ASHOK HIRABHAI LIMBASIYA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JM BUDDHBHATTI for Appellant(s) : 1 - 2. MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 20/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) The appellants, who were original accused nos. 1 and 3, CR.A/873/2003 2/12 JUDGMENT challenged the legality and validity of the judgment and order delivered by the Ld. Addl. Sessions Judge, Fast Track Court, Morbi, [for short 'the Ld. Trial Judge'] on 3/6/2003 in Sessions Case No. 28/2001. The Ld. Trial Judge by impugned judgment and order convicted both the appellants for the offences punishable under sections 363, 366, 342, 354, 376(2), 506(2) read with section 114 of the Indian Penal Code [IPC] and each of them was sentenced to undergo rigorous imprisonment [RI] for 5 years and fine of Rs.2,000/-, RI for 5 years and fine of Rs.2,000/-, simple imprisonment [SI] for one year and fine of Rs.500/-, RI for 2 years and fine of Rs.1,000/-, RI for 10 years and fine of Rs.5,000/- and SI for 1 year and fine of Rs.1,500/- respectively for the above offences with usual default clause in case the fine was not paid. 2. The prosecution case, in brief, is as under :- 2.1. Parulben Mulajibhai, along with her parents, was residing in the area called Vijaynagar at Morbi. On 12/7/2001 when she was all alone at her house at about 14.30 hours, she went out of her house for some domestic purpose. It is the case of the prosecution that at that time both the appellants- accused persons along with original accused no. 2 Madhavji @ Madho Lavajibhai Koli came in a rickshaw and compelled her to accompany them in the rickshaw and she was forcibly taken CR.A/873/2003 3/12 JUDGMENT towards Sanala. It is the case of the prosecution that at Sanala, in one small room of a factory, both the appellants along with co-accused Madhavji @ Madho gang raped her. She was kept in the room over night and next day she was told by the accused that she should go to Ahmedabad and do not stay at Morbi or else she would be killed. That the appellant Ashok Hirabhai gave her Rs.120/-. That thereafter, she went to Ahmedabad. Her sister Vinaben was staying in Ahmedabad and she reached at the house of her sister Vinaben. Thereafter, she came to Morbi along with her sister Vinaben and her father's elder brother Chunibhai. It is the case of the prosecution on 15/7/2001 Parulben lodged FIR. However, in her FIR she did not allege about rape having been committed by all or any of the accused persons. As per the prosecution case, after lodgement of the FIR, police sent her to hospital and for the first time, before Medical Officer she alleged rape having been committed on her. During the course of police investigation, police recorded statements of relevant witnesses. Clothes of the prosecutrix were seized. Medical certificates of the prosecutrix and of the accused were recovered. After completion of the police investigation, the police filed charge-sheet against both the appellants along with accused no. 2 - Madhavji @ Madho Lavajibhai Koli in the Court of the Ld. Judicial Magistrate First Class, Morbi. As the offence was exclusively triable by the Court of Sessions, CR.A/873/2003 4/12 JUDGMENT the Ld. Magistrate committed the case to the Court of Sessions at Rajkot, which came to be transferred for trial in the Court of the Ld. Trial Judge. 2.2. The Ld. Trial Judge framed charge at exh. 1 against the appellants. The appellants did not plead guilty and claimed to be tried. Therefore, the prosecution adduced oral and documentary evidence. After the conclusion of the evidence, the Ld. Trial Judge recorded further statements of both the appellants accused. They generally denied all the allegations levelled against them by the prosecution and stated that they were wrongly implicated. 2.3. The Ld. Trial Judge, after appreciating the evidence on record and hearing arguments advanced on behalf of both the sides, delivered the impugned judgment and order wherein the Ld. Trial Judge was pleased to convict both the appellants - accused persons for the offences punishable under sections 363, 366, 342, 354, 376(2) and 506(2) read with section 114 of the IPC and awarded sentence as hereinabove stated in this judgment. 3. On behalf of the appellants, learned advocate Mr. Budhdhbhatti submitted that the Ld. Trial Judge committed serious illegality and irregularity in convicting the appellants for the offences charged against them. It is submitted that considering the FIR lodged by the prosecutrix Parulben exh. 8, it clearly transpires that in her FIR, she CR.A/873/2003 5/12 JUDGMENT no-where alleged any rape having been committed on her by all or any of the accused persons. She alleged the offence of assault by the appellants with intent to outraged her modesty. It is further submitted that as admitted by the prosecutrix in her deposition exh. 7, she categorically admitted that all the 3 accused persons including appellants were totally unknown to her. Prior to the alleged incident, she had never seen them. In her deposition she no-where explained as to how the appellants – accused persons were referred in her FIR by their names. She further admitted that in her FIR she did not refer any incident about the rape. It is further submitted that the prosexutrix also admitted in her deposition that after the so called incident was over, she did not narrate the incident either to her sister Vinaben or to her parents. It is submitted that even considering the medical evidence on record, she narrate history of intercourse before the Medical Officer, but no names were given to the Medical Officer. That thus, this important aspect of the matter has not been properly dealt with by the Ld. Trial Judge in the impugned judgment and erred in coming to the conclusion that the involvement of the appellants in the crime is proved by the prosecution beyond reasonable doubt. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order recording the conviction be set aside. CR.A/873/2003 6/12 JUDGMENT 3.1. On behalf of the respondent – State, Ld. APP Mr. Bhatt vehemently submitted that the trial Court rightly arrived at the conclusion that both the appellants are involved in the offence. It is true that in the FIR initially the prosecutrix did not allege any offence of rape against the appellants, but she has explained that when she was asked by the Medical Officer to tell truth, then she stated that she was subjected to sexual intercourse. That it has come in evidence that at the time of incident, prosecutrix Parulben was aged about less than 16 years. Moreover, this being gang rape, the question of consent by the prosecutrix is immaterial. That considering the medical evidence, the question of rape is established. Prosecutrix identified both the appellants including the original accused no. 2 during the course of her deposition. Therefore, it is submitted that the appeal being meritless, deserves to be dismissed. 4. Appreciating the statements made on behalf of both the sides, it would be necessary first to consider the FIR exh. 8. The FIR was lodged by prosecutrix Parulben herself. In her FIR, both the appellants including the original accused no. 2 are referred by their names. In her FIR, briefly she stated that she was kidnapped by the 3 accused persons and she was kept in a small room in a factory amounting to wrongful confinement and she was assaulted by the 3 accused persons with intent CR.A/873/2003 7/12 JUDGMENT to outrage her modesty and she was threatened to be killed. In other words, perusing the entire FIR exh. 8, it is no-where stated that either of the 3 accused persons or any one of them committed forceful sexual intercourse with her. Thus, there was no narration regarding offence of rape punishable under section 376 of the IPC in her FIR. 4.1. In this background, considering the deposition of Parulben exh. 7, she stated that she was kidnapped by the 3 accused persons and she was threatened by them and she was confined in a small room in one factory. However, she stated that all the 3 accused persons caused sexual intercourse with her. In her examination-in-chief, she admitted that in her FIR she has not stated to the police that she was raped by the accused persons. However, she stated that she was threatened by the accused persons. She stated that after the lodgement of her FIR, she was referred to a hospital and Medical Officer asked her to tell the truth and thereupon she stated about the rape. However, in para. 6 of her deposition, she stated that police recorded her FIR next day after her medical examination was done. She further stated that police had also inquired to her as to whether she was knowing the 3 accused persons and thereupon she stated to the police that she did not know them nor she had ever seen them. However, she identified the accused persons during the course of her deposition, but it no-where transpires that any test identification parade was arranged by CR.A/873/2003 8/12 JUDGMENT the police of the accused persons in presence of the prosecutrix Parulben. 4.2. According to the deposition of prosecutrix Parulben, it further transpires that after the so called incident was over, she never stated about the incident either to her parents or even to her sister Vinaben. It further transpires that after the incident, she went to Ahmedabad. She stated that she was not knowing the exact address of her sister Vinaben in Ahmedabad, but one banana vendor took her to the house of her sister Vinaben. As stated above, neither she narrated the incident to her parents nor to her sister Vinaben. In para. 39 of her deposition she went to the extent of saying that she had correctly informed the police about the incident at the time of lodgement of the FIR. As stated above, the fact is otherwise. In para. 69 of her deposition, she stated that in police station, before her FIR was taken, she was told by her parents and by her sister Vinaben to tell correct facts to the police. However, in the said para., she admitted that except narrating the incident of rape, she narrated the other facts before the police. 4.3. Thus, giving overall consideration to the deposition of prosecutrix Parulben, it becomes clear that according to her, prior to the date of incident, she has never seen the accused persons, she was not CR.A/873/2003 9/12 JUDGMENT knowing them. They were totally unknown to her. Despite this, she does not state in her deposition that how she described the accused persons by their names in the FIR. After the lodgement of her FIR, admittedly no test identification parade was arranged by the police. In her deposition she does not state as to how she could identify the accused persons by their names in the Court. After the incident, she did not narrate it to her parents. She went to Ahmedabad all alone and went to the house of her sister Vinaben. According to her, from Ahmedabad she came to Morbi along with Vinaben and her father's elder brother Chunibhai. It is pertinent to note that the prosecution did not examine Vinaben, sister of the prosecutrix and Chunibhai, elder brother of father of the prosecutrix as witnesses in this case. According to the say of the prosecutrix, soon after the incident, she went to Ahmedabad at her sister Vinaben's house and from Ahmedabad she came back to Morbi along with her sister Vinabhai and Chunibhai. These two witnesses have not been examined by the prosecution in this case. It is pertinent to note that if the prosecution would have examined Vinaben and Chunibhai as witnesses in this case, the correct fact would have come on record as to what was the immediate version of the prosecutrix before these two witnesses. This was necessary because in the FIR she no-where alleged the offence of rape having been committed by the accused. CR.A/873/2003 10/12 JUDGMENT 5. Considering the deposition of Dr. Narendrakumar Patel, exh. 17 and medical certificate exh. 18, Dr. Patel stated that on 15/7/2001 he examined the prosecutrix. Dr. Patel further stated that the history given by the prosecutrix was “intercourse on 12/7/2001.” However, considering the deposition of Dr. Patel and the medical certificate exh. 18, hymen was torn and Dr. Patel opined that the findings arrived at by him were suggestive of sexual intercourse. Considering the deposition of Dr. Mahendra Sanghavi, exh. 24, it transpires that Dr. Sanghavi examined the 3 accused persons including the present appellants. Considering the medical certificates exhs. 26, 27 and 28, it is true that the accused were found able to do sexual intercourse. 5.1. Considering the history given by the prosecutrix to Dr. Patel, she narrated history of intercourse, but no names of any of the accused persons has been narrated to the Medical Officer by the prosecutrix. Usually this factor may not carry much importance, but in the present case, in the FIR she did not narrate the story of rape before the police and admittedly the accused persons were totally unknown to her, and she had never seen the accused persons before the incident, the reference of names of the accused persons would have carry more weight in the CR.A/873/2003 11/12 JUDGMENT instant case at the time of her medical examination. 6. In light of the entire above discussions, there may not be any dispute about the age factor of the prosecutrix. The only dispute is the very involvement of the appellants in this case. As discussed at length above, about the involvement aspect of the accused persons in the crime, the deposition of the prosecutrix cannot be said to be beyond any reasonable doubt. Considering the impugned judgment delivered by the Ld. Trial Judge, it transpires that the involvement of the appellants in this crime is believed by the Ld. Trial Judge solely on the ground that the medical evidence suggested sexual intercourse and that the prosecutrix identified the appellants during the course of her deposition. However, as stated above, when the prosecutrix clearly admitted that before the incident, she was not knowing the accused persons and she had never seen them before the incident and she did not explain in her deposition as to how she could refer the accused persons by their names in her FIR, the very involvement of the accused persons in the crime cannot be said to be beyond any reasonable doubt. 7. In view of the above discussions, we are of the considered opinion that the Ld. Trial Judge erred in holding that the prosecution proved its case beyond any reasonable doubt against the appellants – CR.A/873/2003 12/12 JUDGMENT accused persons. In the result, the appeal deserves to be allowed. 8. For the foregoing reasons, the appeal is hereby allowed and the impugned judgment and order delivered by the Ld. Trial Judge in Sessions Case No. 28 of 2001 recording the conviction of the appellants for the offences punishable under sections 363, 366, 342, 354, 376(2) and 506(2) read with section 114 of the IPC is hereby set aside and the appellants are ordered to be acquitted. The appellants be set at liberty from the jail forthwith, if they are no longer required in any other case. Fine, if paid, to be refunded to them. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.