CR.A/179/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 179 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= GOGAJI DHULAJI THAKOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PK SHUKLA for Appellant(s) : 1, MR PD BBATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 03/04/2008 ORAL JUDGMENT 1. The appellant is the original accused. He was convicted for offences punishable under Sections 366 and 376 of the Indian Penal Code by learned CR.A/179/2005 2/10 JUDGMENT Additional Sessions Judge, Mehsana, by impugned judgement dated 31.8.2004 rendered in Sessions Case No. 88/2004. He was sentenced to two years of rigorous imprisonment for offence punishable under Section 366 and for seven years for offence punishable under Section 376 of the Indian Penal Code. He was also ordered to pay fine. 2. As per charge, exh.3 the allegations against the appellant were that on 16.1.2004 when the prosecutrix was collecting fodder from the border of a field at about 5 O' Clock in the evening, the accused went there with Dhariya and under threat and coercion had sexual intercourse with the victim girl. 3. Dr. Arunkumar Harilal Nayak-PW1(exh.15) was the Doctor who had examined the victim girl on 21.1.2004. As per his deposition, the girl was brought to him along with the police yadi. History was given about the appellant having intercourse with her in the evening of 16.1.2004. He found the girl was pregnant carrying fetus of 16 to 18 weeks. He had collected the samples of nail, hair and blood etc. of the victim girl and sent for analysis. 3.1 In the cross examination, he stated that history was given by father of the victim girl. CR.A/179/2005 3/10 JUDGMENT 4. Victim girl-PW3 was examined at exh.19. On the date of incident, her sister Kailash and Kailash's husband Mukeshji were at home. Her father had gone to some other village. At about 5 O' Clock in the evening, she had gone to collect fodder near the field of one Patel in the Sim of village Valasna. When she was collecting fodder, the accused came there with a Dhariya and forcibly took her inside his hut threw her on the cot, removed her clothes and had intercourse with her twice against her wish. She was also tied to the cot. Next day early morning at about 5 O' Clock, the appellant had started to leave her at which time Mukeshji and her uncle Bhikabhai came and thereupon the appellant ran away. She after reaching home narrated the incident to her aunt who conveyed the same to her mother. Next day, her father came back. Since she was married, they consulted her in-laws and thereafter, about four days after the incident lodged the police complaint. She identified the accused before the Court. She also identified the clothes she was wearing at the time of incident which was collected by the police. 4.1 In the cross examination, she admitted that her house and house of the appellant are opposite to each other. The hut of the accused was at the distance of about two fields from CR.A/179/2005 4/10 JUDGMENT where she was collecting the grass. She did not shout for help since the accused was carrying Dhariya. She denied the suggestion that she had an affair with the accused or that on account of such an affair, her father was angry with her. She denied that the appellant had intercourse with her consent. 5. Udaji Gobarji Thakore-PW4(exh.21) is the father of the victim girl. He stated that on the date of incident after his duty, he had gone to Aspa village and returned home next evening at which time his wife had narrated incident of 16th. Since his daughter was married, he first consulted her in-laws and, thereafter, decided to lodge the complaint. 5.1 In the cross examination, he agreed that in his police statement he had not stated that the complaint was lodged after consulting the in-laws since his daughter was married. He also denied the suggestion that the victim girl had an affair with the accused. 6. Joitiben Bhikaji Thakore-PW5(exh.22) is the aunt of the victim girl to whom victim girl had narrated the incident. 7. Mukeshji Amalji-PW7(exh.26) was the brother-in- law of the victim girl. He stated that on the date of incident, when she was at his in-laws CR.A/179/2005 5/10 JUDGMENT place, the victim girl had gone to collect fodder in the evening. When she did not return even after dark, he and the girl's uncle had set out to look for her but did not find her. Once again they went early in the morning at about 5 O' Clock and found the victim girl and the accused in the Sim of the village. 7.1 He also denied the suggestion that victim girl had an affair with the accused. 8. Dr. Rameshbhai Khemabhai Parmar-PW6(exh.23) was the medical officer at Vadnagar Government Hospital. He had examined the appellant and collected samples of his semen, blood, hair, etc. for analysis. 9. Pravinpuri Shankarpuri Goswami-PW8(exh.27) was the PSI of the Vadnagar police station who had carried out the investigation. He stated that on 21.1.2004 the accused was arrested and weapon Dhariya was recovered. 10.The FSL report suggested presence of semen on the petticoat worn by the victim girl. Presence of semen is also spotted from cervical swab and vaginal swab of the victim girl. 11.In the nutshell, this was the evidence led by the prosecution before the Sessions Court. CR.A/179/2005 6/10 JUDGMENT 12.Learned advocate Shri Shukla for the appellant submitted that the prosecution did not recover the instrument for cutting grass which the victim girl would be carrying. He submitted that FIR was lodged nearly four days after the incident, raising doubt about the truthfulness of the allegations. He further submitted that the victim girl had an affair with the appellant and that therefore, had spend the night with him voluntarily. He submitted that the girl was stated to be of 19 years of age and if the appellant had intercourse with her consent, he cannot be punished for offence punishable under Section 376 of the Indian Penal Code. It was also contended that the Doctor in the cross examination admitted that history was given by the father of the victim girl and not by the girl herself. 13.On the other hand, learned APP Shri Bhatte supported the judgement under challenge and submitted that the prosecution had led cogent evidence to establish the charge. 14.From the evidence of record, it can be easily seen that the fact that the appellant had intercourse with the victim girl is not seriously in doubt. Apart from the oral evidence of the victim girl herself- PW3(exh.19),there is also other reliable corroborative evidence in the form of FSL CR.A/179/2005 7/10 JUDGMENT report. The petticoat of the girl as well as vaginal swab and cervical swab of the victim girl contained traces of semen. In-fact, the defence also in the cross examination focused entirely on willingness and consent of the victim girl rather than seriously challenging the factum of intercourse having taken place between the two. 15.The question therefore, is whether the appellant original accused had committed such intercourse on the victim girl against her wish or whether the defence theory that the victim girl herself was a willing partner was probablised from the evidence on record. 16.In this regard, if one relates back to the deposition of the victim girl, she has in clear terms stated that on the date of incident at about 5 O' Clock when she had gone out to the Sim of the village to collect fodder, the appellant had approached her with a Dhariya in his hand, threatened her and dragged her on the cot nearby the hut where after pushing her on the cot, he had forcible intercourse with her twice. She was kept there night long. Early in the morning when the girl's brother-in-law and uncle came, the accused ran away. 17.Though the defence tried to project the theory of an affair between the victim girl and the CR.A/179/2005 8/10 JUDGMENT appellant, every witness consistently denied such a suggestion. Besides such a suggestion of the defence, there is no material on record to establish the allegations of the affair between the victim girl and the appellant. There is no suggestion of any enmity between the family of the victim girl and the appellant. There is therefore, no reason to discard the oral evidence of the victim girl in which in clear terms she has stated about forcible intercourse with the appellant on her twice on 16.1.2004. In the cross examination of the victim girl, no major contradictions have been brought on record. The evidence of victim girl gets supported from the evidence of Mukeshbhai-PW7 who stated that at the time of incident, he was at his in-laws place. The victim girl had in the evening gone out to collect fodder but did not return till night. He and girl's uncle had gone out to look for her. Not finding her, they returned home and set out again early in next morning where they found her and the accused. Upon seeing them accused ran away. 18.The incident was narrated by the victim girl to her aunt who was also examined before the Court as PW-5 exh.22. Father of the victim girl also stated that he had gone out and returned home only next day when he was informed about the incident. Since the girl was married, he consulted her in-laws before lodging the CR.A/179/2005 9/10 JUDGMENT complaint. It is true that there is some delay in filing the complaint. In the present case, however, in my opinion such a delay would not be sufficient to disbelieve the entire prosecution version. Delay was explained before the Court by pointing out that father of the victim girl was not at home and came back only next day. After coming home and being informed about the incident, he found it appropriate to consult in- laws of the victim girl before lodging the complaint. If the victim girl did not shout for help or did not put up physical resistance leading to marks of injuries either on her body or on the body of the accused, same can be easily appreciated since appellant was carrying a Dhariya and had threatened the girl before dragging her to an isolated hut situated in the field. No material contradictions come-forth in the version of different witnesses also. 19.There is minor variation regarding the exact time when the victim girl had gone out to collect fodder. Though time recorded was 5 O' Clock, however, in the cross examination she stated that she had reached the field at 6 O' Clock. She actually stated that she started at 5 O' Clock from her house but reached the spot at about 6 o' Clock. Such minor variations however, would not demolish the prosecution version, when I find that the testimony of the victim girl is cogent, reliable, believable and CR.A/179/2005 10/10 JUDGMENT otherwise corroborated by attendant circumstances and other evidence. 20.In the result, I find that learned Sessions Judge committed no error in convicting the appellant for offences punishable under Section 366 and 376 of the Indian Penal Code. 21.In the result, appeal fails. Same is hereby dismissed. (Akil Kureshi,J.) (raghu)