IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 279 of 1998 with CRIMINAL APPEAL No 215 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : -------------------------------------------------------------- GULABJI SALUJI BHAGORA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 279 of 1998 MR KB ANANDJIWALA for Appellant No. 1 MS NANDINI JOSHI, APP for Respondent No. 1 2. Criminal Appeal No. 215 of 1998 MR KB ANANDJIWALA for Appellant Nos. 1 to 3 MS NANDINI JOSHI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE J.R.VORA Date of decision: 07/02/2002 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE J.R.VORA) 1. Both these appeals have arisen from a common judgement and order passed by the learned Additional Sessions Judge, Sabarkantha at Himatnagar on 27th February, 1998 in Sessions Case No.67 of 1997. The appellants of both the appeals were the accused in the said sessions case. 2. The prosecution case was that on 06th December, 1995 the prosecutrix victim of the case, Manjula from her village along with her relatives i.e. cousin Rekhaben and her younger brother had gone to attend a public fair arranged at Aantarsuba Ashram at noon. All of them were returning in the afternoon from the fair boarding a tractor to their village. When they reached near village Kundala Kampa, all the four appellants had intercepted the tractor in which they were travelling back to their village. Appellant Gulabji Saluji, original accused No.1 had threatened the persons sitting in the tractor and the tractor driver, captured Manjula and thrown her out of the tractor in which she was travelling whereas the remaining three appellants had caught hold of Manjula, who was thrown out of the tractor by Gulabji and all the four appellants forcibly had taken away Manjula to the house of Gulabji, appellant-accused No.1, from there. The remaining three accused appellants except appellant No.1 - Gulabji Saluji had thereafter left house of accused No.1. Manjula was taken inside the house of accused No.1 and made to lie on a cot which was placed in the house of appellant - accused Gulabji Saluji and without her consent, according to the prosecution story, accused No.1 had committed rape on her. It is also the prosecution story that the appellant Gulabji Saluji had a pen-knief in his hand by which he had threatened Manjula. The relatives of Manjula who were travelling back, had gone to their village Kathroti in the same tractor and informed the parents of Manjula about the incident. At about 11:00, on that night Kamjibhai Karmaji Katara, uncle of Manjula and Prakash, elder brother of Manjula alongwith one Arjan Shakara Bhagora had gone to the house of the appellant Gulabji Saluji and asked him to hand over the custody of Manjula, but the appellant No.1 had refused to hand over Manjula to them. However, at last the appellant No.1 had taken to his heels and Manjula was handed over to her uncle and brother. Thereafter all of them had come to their village. Manjula was handed over to her mother who had informed her mother about rape committed by Gulabji Saluji. 3. On 8th December, 1995, a complaint was lodged by Manjula before Vijaynagar Police Station which was recorded by one PSO Jitendrasinh Dashrathsinh, PW-10. He had registered the offences against the accused and victim Manjula was sent for medical examination at Idar. Medical Officer, Dr. Purshottam Kalabhai Gohil had examined Manjula and opined after examination of X-ray etc. that Manjula was aged about 16-years and sexual intercourse was committed with her recently. 4. Investigation initially was entrusted to Head Constable, Mulabhai Dayabhai who had seized the clothes of Manjula which she was wearing at the time of offence under a panchnama. Thereafter investigation was handedover to Circle Police Inspector, Kantilal Laxmanbhai Chavda who after recording statements of witnesses had prepared panchnama of scene of the offence and forwarded the muddamal to the Forensic Science Laboratory. The appellant Gulabji Saluji after arrest on 12th December, 1995 was sent to Medical Officer, Idar who had opined that Gulabji was capable of sexual intercourse and the trouser which he was wearing at the time of offence was also seized. 5. A Charge-sheet for the offences under Sections 363, 366, 376, 506(2) and 114 of I.P.C., was submitted before the learned Judicial Magistrate (F.C.) at Khedbrahma who in turn had committed the case to the Court of Sessions because the Sessions Court is the only competent Court for conducting the trial of the charges levelled against the accused. 6. Vide Ex.6 in the said Sessions Case No.67 of 1997, all the appellants were charged with the offences under Sections 363 and 366 read with Sections 114 and 506(2) of I.P.C., while appellant No.1 - Gulabji Saluji was charged for the offence under Section 376 and 506(2) of I.P.C. All the appellants had denied the charges levelled against them. 7. The prosecution examined 12 witnesses to prove the case. The prosecution examined (1) Dr.Rameshbhai Khemabhai at Ex.12, as PW-1 who had examined Gulabji Saluji; (2) the prosecutrix - Manjula as PW-2 at Ex.16; (3) Lilaben Ratanji, mother of the victim as PW-3 at Ex.20; (4) Rekhaben Kamjibhai who had accompanied the prosecutrix at the fare when she was kidnaped, as PW-4 at Ex.21; (5) Dr.Purshottam Kalabhai Gohil who had examined prosecutrix-Manjula as PW-5 at Ex.22; (6) Kanaksinh Sardarsinh PW-6; (7) PW-7 and PW-8 i.e. Karansinh Dharmasinh and Babubhai Virmaji at Ex.33 and Ex.35 respectively; (8) Shantilal Hiraji as PW-9 at Ex.39; (9) Jitendrasinh Dashrathsinh, PW-10 who was a Head Constable of Vijaynagar Police Station and was PSO who recorded the complaint of victim - Manjula at Ex.40; (10) both the Investigating Officers, Mulabhai Dayabhai at Ex.43 and Kantilal Laxmanbhai Chavda, Ex.44 as PW-11 and PW-12 respectively. 8. The prosecution also tendered documentary evidence to prove the case. The medical certificate of Gulabji Saluji is produced at Ex.14; the medical certificate of victim - Manjula is produced at Ex.27; the panchnama of seizure of clothes of Manjula is produced at Ex.29, the panchnama of scene of offence is produced at Ex.34, the Police Station Diary of Vijaynagar Police Station in respect of entry No.4 is produced at Ex.41; F.I.R. which was recorded by PSO Jitendrasinh Dashrathsinh is produced at Ex.42; forwarding letter by which muddamal articles are sent is produced at Ex.46; opinion of Analyst alongwith Serological opinion after examining muddamal are produced at Ex.47 and Ex.48 respectively. 9. After recording all the evidence and hearing both the sides, the learned trial Judge found accused appellant - Gulabji Saluji guilty for the offences under Sections 363, 366, 506(2) and 376 of I.P.C. while remaining three appellants were found guilty for the offences under Sections 363, 366 read with Section 114 of I.P.C. All the appellants for the offence under Section 363 were sentenced to undergo rigorous imprisonment for five years and fine of Rs.1,000/= in default, simple imprisonment for one year. Each of the appellant was sentenced to undergo five years rigorous imprisonment for the offence punishable under Section 366 of I.P.C. and fine of Rs.2,000/= and in default, simple imprisonment for one year. Accused appellant - Gulabji Saluji was sentenced to undergo rigorous imprisonment for ten years for the offence of 376 of I.P.C. In addition to that, he was also fine of Rs.5,000/= and in default, to undergo simple imprisonment for one year. It was also directed that out of amount of fine of Rs.5,000/=, Rs.4,000/= be paid to prosecutrix - Manjula by way of compensation. Accused appellant Gulabji Saluji was also convicted for the offence under Section 506(2) of I.P.C. and was sentenced to undergo rigorous imprisonment for two years and directed to pay fine of Rs.1,000/= in default, simple imprisonment for three months. All the accused were given benefit of set-off. It was also directed by the learned trial Judge that all the punishment of imprisonment awarded to all of the accused shall run concurrently. 10. Being aggrieved by the above said judgement and order of conviction of the learned Additional Sessions Judge, Sabarkantha at Himatnagar, accused - Gulabji Saluji has filed Criminal Appeal No.279 of 1998 while the other remaining three accused filed Criminal Appeal No.215 of 1998. Since both the appeals have arisen from the common judgement as aforesaid they were heard together and are being decided by this common judgement. 11. Learned senior counsel Mr.K.B.Anandjiwala on behalf of the appellants of both the appeals submitted that the judgement of conviction and imposing the sentence on appellants is apparently erroneous. 12. The first and foremost submission which Mr.Anandjiwala advanced was regarding probability of the prosecution case. It was submitted that the story of the prosecutrix as narrated is highly improbable. In this respect learned counsel submitted that it is an admitted fact that there were 30-40 persons in the tractor from which it is alleged that prosecutrix Manjula was kidnaped and none of them had been examined as a witness in the case. It was submitted that, therefore, firstly the story of the prosecution case is improbable and that the prosecutrix is not corroborated by any independent evidence which was easily available to the investigation agency for which an adverse inference should be drawn against the prosecution. It was also submitted that in presence of 30-40 persons of the village of the prosecutrix, it was improbable for the accused to kidnap Manjula sitting in the tractor amongst 30-40 persons. It was submitted that if the story of kidnapping is improbable then the story of rape having been committed on her, as narrated by prosecutrix, becomes also improbable. It was also submitted that there are major contradictions and omissions in the evidence of prosecutrix - Manjula. It was submitted that the first contradiction is in respect of time factor. In the F.I.R., it is noted that the offence had taken place at about 3:00 p.m. while in the deposition of Manjula and the witnesses it was stated that they were returning from Aantarsuba Ashram fair at about 6:00 p.m. and at that time the incident had taken place. It was submitted that there is contradiction as to at what time the witnesses had gone to fair. Learned counsel for the appellants vehemently submitted that the offence had taken place on 6th December, 1995 and that the prosecution story reveals that on that night at about 11:00 Manjula was restored to her home but even then the complaint was filed only on 8th December, 1995 i.e. on the 3rd day and, therefore, case is doubtful character. Learned counsel for the appellants submitted that this delay in filing the complaint is not explained and, therefore, the prosecution story is suspicious. It was also submitted that while lodging the complaint alongwith the prosecutrix, her father, Sarpanch of the village and other 8-9 persons were present which shows that false complaint was lodged against the accused after premeditation. It was also submitted that in her cross-examination the prosecutrix - Manjula has admitted that the complaint was dictated by her father and the Sarpanch and she was sitting outside the police station and had only subscribed her thumb impression to the complaint which makes prosecution story doubtful. It was, therefore, submitted that the F.I.R. which is exhibited by the trial Court is required to be de-exhibited. In respect of the medical evidence, it was submitted that there were no injuries on private part of the prosecutrix. It was submitted that the medical expert opined that there was old tear of hymen. It was submitted that vagina allowed one finger with pain upto 1 c.m. Relying on these factors, learned counsel submitted that the story of the prosecutrix that she was raped for four times is highly and inherently improbable. It was submitted that injury marks on private part of the victim as well as the accused are bound to be noticed which are absent in this case and hence, the story of rape having been committed by accused No.1 cannot wholly be disbelieved. It was also submitted that according to the Serological as well as Forensic Science Laboratory opinions, no seminal stains were found on any of the muddamal articles which also suggests that the story which Manjula narrated was not probable. Lastly, it was submitted that there was enmity between the family of the prosecutrix and the family of the accused. It was submitted that uncle of Manjula, one Amraji and Baba Bhagirathdas had fired shot against Vexi Vechat, who was Caste President and due to this fire shot Vexi Vechat was injured. Following this incident, there was a caste meeting in which it was proposed by the accused side that the family of the prosecutrix should be excommunicated and, therefore, the family of the prosecutrix wanted to see that the accused go to jail and for this enmity, this false case is concocted against the accused. It was submitted that this contention is supported by a fact that though the complaint was recorded on 8th December, 1995, immediately a report was required to be made to the competent Magistrate under Section 157 of the Cr.P.C. but the report was made after 4 days i.e. to say that the complaint which was registered on 8th December, 1995 was sent to the Magistrate only on 12th December, 1995. It was, therefore, urged that the prosecution story is highly improbable. The prosecutrix is not corroborated by any independent evidence. There is delay in lodging F.I.R. as well as Major contradictions in the evidence of the witnesses and in the evidence of the prosecutrix and, therefore, the appellants atleast be given benefit of reasonable doubt. 13. On the other hand, learned A.P.P. Ms.Nandini Joshi on behalf of the State submitted that the evidence of the prosecutrix is unblemished and trustworthy. It was submitted that it is wrong to say that the prosecutrix is not corroborated. It was submitted that the prosecutrix Manjula is fully corroborated by the medical evidence as well as the evidence of Lilaben and Rekhaben, PW-3 and PW-4 who support the version of prosecutrix - Manjula. It was submitted that as per the medical opinion, it is revealed that the prosecutrix was subjected to recent sexual intercourse. It was also opined by the medical expert that she was not habituated to sexual intercourse. Forensic Science Laboratory also found blood stains on the clothes of the prosecutrix which is supportive evidence. It was submitted that ordinarily in rape cases prosecutrix need not be corroborated, if her evidence inspires confidence, while in this case, the prosecutrix not only inspires confidence but is also supported by corroborative evidence as said above. It was, therefore, submitted that the learned trial Judge rightly convicted accused Gulabji Saluji under Section 376 and 506(2) and conviction of all the four accused by the trial Court under Sections 363 and 366 read with Section 114 of the I.P.C. is also proper and requires no interference. 14. Having considered the contentions raised at the Bar as aforesaid, we have re-appreciated the evidence on record. Learned senior counsel Mr.Anandjiwala has taken us to each line of the evidence of the witnesses. We have also scrutinized the documentary evidence as well on the record of the case. What is required to be borne in mind is that, this is a rape case. Since last so many years, the Apex Court as well as other Courts of the country have observed as to how to appreciate the evidence in rape case, more particularly, the evidence of the prosecutrix. Needless to say that it is an established law that the prosecutrix in rape cases is not an accomplice. She is not a part-taker of the offence and her evidence must be appreciated at par with the evidence of any other injured witness and if evidence of the prosecutrix inspires confidence, there is no rule of law that she requires any corroboration. 15. The Apex Court in State of Punjab Vs. Gurmit Singh and others as reported in AIR 1996 SC 1393 in respect as to whether the testimony of prosecutrix requires any corroboration and in respect of evidentiary value of the testimony of the prosecutrix has observed as under : " The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formual and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. " 16. Appreciating the evidence of prosecutrix Manjula as per the test laid down by the Apex Court in aforesaid decision, we find that prosecutrix - Manjula has stated in her deposition that on the day of the incident with her younger sister Phuliben and Rekhaben and with her younger brother Popat they all were going to attend Aantarsuba Ashram fair, in a tractor owned by one Dalpatsinh. As per the say at about 12:00 p.m. in the noon, all of them had gone to attend the fair. According to Manjula, while at about 6:00 p.m., they were returning home in the said tractor in which other persons were also sitting and the present four appellants had intercepted the tractor near Village Kundala Kampa. She has stated that all the four appellants belong to Kundala Kampa village and that appellant - Gulabji Saluji had brandished a pen-knief at the tractor driver and threatened him to kill so the tractor driver stopped the tractor. As per her claim, the appellant No.1 had thereafter climbed up on the tractor whereas the remaining three appellants were standing on the road. She has stated that the appellant No.1 had captured her and, therefore, she had started weeping and in the meantime, the appellant No.1 had thrown her out of the tractor and she was caught hold by remaining three appellants. According to her, all the four appellants had thereafter taken her to village Kundala Kampa at the residence of appellant No.1. Her evidence shows that the tractor had proceeded ahead towards the village of Manjula and all these persons had kept Manjula at the residence of appellant No.1 Gulabji Saluji and three appellants except appellant No.1 Gulabji Saluji had left the residence of Gulabji Saluji. According to her, Gulabji Saluji had closed the door of the house from inside and forcibly laid her on a cot which was kept in his residence and thereafter committed sexual act for four times with her against her wish. It is stated that she had tried to resist and stand up but Gulabji Saluji had overpowered her and threatened with a pen-knief in hand her to kill. Gulabji Saluji according to Manjula had injured her by his nails on her neck. At about 11:00 p.m., Kamjibhai Karmaji Katara, uncle of Manjula, Prakash, her elder brother and one Arjan Shakara Bhagora, according to Manjula had come to rescue her at the residence of Gulabji Saluji and uncle had asked Gulabji Saluji to hand over Manjula to them to which initially he had replied that Manjula would be given to them only in the morning but, however, on that night she was handed over to her uncle and brother who had taken her to her house. Manjula has further stated that she had narrated the story to her mother. On the next day, according to Manjula, she had been to Vijaynagar Police Station where she had lodged a complaint in respect of the incident before Vijaynagar Police Station. She stated that she had dictated the complaint and subscribed her thumb impression. 17. Appreciating this evidence of Manjula, we find that there is no major contradiction found in the cross-examination conducted by the defence so as to disbelieve her. An attempt has been made by the defence in the cross of Manjula to show that the complaint was in fact dictated by her father, her uncle Kamjibhai Karmaji Katara and Sarpanch of her village and she was sitting outside the police station. In confusing cross-examination, illiterate, rustic, tribal prosecutrix has half-heartedly admitted that the complaint was dictated by her father and her uncle. It clearly appears that without fully understanding the question in cross-examination she replied that the complaint was dictated by her father etc. and this was half-heartedly because in answer to very subsequent question asked by the cross-examiner, she said that the complaint was dictated by herself only. Considering the evidence of the prosecutrix in this respect as a whole, we find that she categorically stated in-chief that the complaint was lodged by her and was recorded as per her say. In cross-examination also, she emphatically said that the complaint was lodged by herself only. This clearly denotes that the complaint was lodged by the prosecutrix only. This is more supported by an independent witness i.e. PW-10 Jitendrasinh Dashrathsinh at Ex.40. The witness deposed that on 8th December, 1995 he was in-charge of Vijaynagar Police Station right from 5:00 a.m. to 8:00 p.m. At about 12:35 p.m. the prosecutrix came to the police station and she declared the facts of the complaint. This witness categorically stated that he inquired and asked question to the prosecutrix and according to her say thereafter the complaint was recorded as was dictated by prosecutrix - Manjula. This witness Jitendrasinh Dashrathsinh further said that