CR.A/914/2005 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 914 of 2005 WITH CRIMINAL APPEAL No. 1344 of 2006 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 ? =============================================== DIPAKBHAI VALJIBHAI PARGHI & Another. Versus THE STATE OF GUJARAT. =============================================== Appearance : Criminal Appeal No.914 of 2005 Mr PRAVIN GONDALIA WITH Mr ASHISH D OZA for the Appellant. Mr UR BHATT, APP, for the Respondent. Criminal Appeal No.1344 of 2006. Ms REKHA H. KAPADIA for the Appellant. Mr UR BHATT, APP, for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA CR.A/914/2005 2/12 JUDGMENT Date : 04/12/2008 ORAL JUDGMENT :- ( Per : A. L. DAVE, J. ) 1. These two appears arise out of a judgment and order rendered by Fast Tract Court, Gondal, on 19th March, 2005, in Sessions Case No.73 of 2003, convicting both the appellants for the offences punishable under Sections 376 read with Section 114, 452 and 506(2) of the Indian Penal Code (“IPC”) and Section 135 of the Bombay Police Act. 1.1 Appellant, Dipakbhai Valjibhai Parghi, original accused No.1, was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 376 read with Section 114 of the IPC. For the offence punishable under Section 452 of the IPC, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for six months. He was further ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 506(2) of the IPC and, lastly, he was ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 135 of the Bombay Police Act. 1.2 So far as accused No.2, Aminbhai Alibhai Sirman, is concerned, he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under CR.A/914/2005 3/12 JUDGMENT Section 376 read with Section 114 of the IPC. For the offence punishable under Section 452 of the IPC, he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for six months. For the offence punishable under Section 506(2) of the IPC, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for six months and, lastly, for the offence punishable under Section 135 of the Bombay Police Act, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for six months. 1.3 All the sentences were ordered to run concurrently and both the accused were given benefit of set off. 1.4 Both the convicts were directed to pay an amount of Rs.25,000/- each, totalling to Rs.50,000/-, as compensation to the prosecutrix under Section 357 of the Code of Criminal Procedure. 2. Original accused No.1 has preferred Criminal Appeal No.914 of 2005 and original accused No.2 has preferred Criminal Appeal No.1344 of 2006. For the sake of convenience, these two appellants are addressed to as accused Nos.1 and 2 in this judgment. 3. As per the prosecution case, the incident occurred on 02.07.2003 at about 11.00 P.M. in the Harijanvas, near Niranga Dyeing House, at Navagadh, in the house of Rupaben, wife of Rasikbhai Patel. At the time of the incident, the prosecutrix was alone in the house. On hearing the sound of knocking of door, she CR.A/914/2005 4/12 JUDGMENT opened the door of the house and found two strangers at the doorstep inquiring about her husband. When she asked them about as to why they were inquiring about him, they told her that want to beat him. She informed that her husband was not available and then she tried to go into the house and close the door. However, accused No.2 pulled her and did not permit her to close the door and then they took her outside the house and made her to take bath in the rain water. The two accused persons also took bath in the rain water and then the lights went off suddenly. Taking advantage of the darkness, the prosecutrix went into the house to find that both the accused persons were inside the house. Thereupon accused No.1 asked accused No.2 to keep a watch while remaining outside the house and then closed the door of the house from inside, threw the prosecutrix on the cot and asked her to remove her clothes and then raped her. After the rape, the prosecutrix was forced to wash her clothes and take bath. The room was swept with the help of her Chunari. Thereafter both the accused went away. It is the case of the prosecutrix that the two persons were unknown to her, but she learnt their names as they were addressing each other by their respective names during the episode. The prosecutrix, on the next day, lodged an F.I.R. with Jetpur City Police Station, on the basis of which offence was registered and investigated. The police sent the prosecutrix to doctor for medical examination, where she gave a detailed history on the lines of the F.I.R. The police collected all available evidence and, having found sufficient material to prosecute the accused persons, filed charge sheet in the Court of Judicial Magistrate, First Class, at Jetpur. Since the offence was triable exclusively by a Court of Sessions, learned JMFC, Jetpur, committed the case to the Court of Sessions and Sessions Case No.73 of 2003 came to be registered. 3.1 Charge was framed against the accused persons at Exhibit 1 for the offences punishable under Sections 452, 376 read CR.A/914/2005 5/12 JUDGMENT with Section 114 and 506 of the IPC and Section 135 of the Bombay Police Act. Both the accused persons pleaded not guilty to the charge and claimed to be tried. 3.2 The Trial Court, upon considering the evidence led by the prosecution, found that the prosecution was successful in establishing the charges and, therefore, recorded conviction of the accused persons – appellants, as stated hereinabove. It is against the said judgment dated 19th March, 2005 that the present appeals are preferred by both the convicts. 4. Learned Advocate, Mr. Gondalia, submitted that the prosecution case suffers from various defects. The version of the prosecutrix about the incident, if viewed dispassionately, would go to show that it is a pre-planned F.I.R. with a view to explaining absence of corroborative evidence in the form of presence of semen or injuries. The whole story about the prosecutrix - being forced to taking bath prior to the incident and subsequent to the incident washing out the clothes, cleaning the place, etc. - is so unnatural and is so vocal about the pre-planned false complaint. He submitted that it could not have been relied upon by the Trial Court. Mr. Gondalia submitted that the Chunari, with which the room was cleaned, was allegedly washed after the cleaning. The said Chunari was found from the cot and recovered by the police by drawing a Panchnama. Against that, the doctor's evidence would indicate that the said Chunari was given to the police by the doctor. Similarly, though the Chunari was washed, the FSL report speaks of presence of semen. How this has happened is not explained by the prosecution. It is also contended by learned Advocate, Mr. Gondalia, that, admittedly, the prosecutrix is a married woman and there is no evidence worth a name to show what was semen group of her husband or the accused and find of semen can be attributed to her CR.A/914/2005 6/12 JUDGMENT relationship with husband also and that possibility cannot be ruled out. This aspect has not been considered by the Trial Court while recording conviction. Mr. Gondalia submitted that the opinion of the doctor that possibility of recent forced intercourse cannot be ruled out is founded on find of an abrasion on elbow of the prosecutrix. Barring this, there is no other evidence to show the possibility of recent forced intercourse. 4.1 Mr. Gondalia submitted that, if the medical evidence is seen, the medical case paper contains the history given by the prosecutrix, which runs in about three pages and which is almost at par with the F.I.R. This is an unusual phenomenon and conduct both on the part of the prosecutrix and on the part of the doctor. These aspects have also not been considered by the trial Court. Mr Gondalia, therefore, submitted that the whole story of the prosecutrix cannot be considered as beyond reasonable doubt and, therefore, the conviction is not well founded and the appeal may be allowed and the accused persons be acquitted of the charges. 5. Ms. Rekha Kapadia, learned Advocate appearing for accused No.2, has accepted the arguments of learned Advocate, Mr. Gondalia. 6. Learned Additional Public Prosecutor, Mr. Bhatt, has opposed this appeal. According to him, the Trial Court has taken into consideration all relevant aspects and has appreciated the evidence in its proper perspective and, therefore, the appeal may be dismissed. 7. The record and proceedings is examined by us in the context of the submissions made before us by rival sides. The CR.A/914/2005 7/12 JUDGMENT evidence of the prosecutrix is at Exhibit 24. She says that she is aged about 30 years and is married to Rasikbhai Karamshibhai Trada and has two sons, namely, Prakash and Nitin. She says that the incident occurred on 2nd July, 2003 while she was alone at home. Her husband had gone out. The incident occurred at about 11.00 P.M. Suddenly, the lights went off and she heard a sound of knocking of door. She opened the door hoping that her husband might have returned. She found two persons standing at the doorsteps when she opened the door. They inquired as to where is her husband and she replied that he had gone out but why were they inquiring and they told her that they want to beat him. She inquired as to why they wanted to beat him, then they told her not to be over wise and while she tried to close the door, they pulled her out of the house and then accused No.1 took her to a drain pipe wherefrom rain water was falling from the roof. At that time, the electricity supply was restored suddenly. She, therefore, ran into the house. At that time, the duo also entered the house and accused No.2 told accused No.1 to shut the grill. Thereafter, accused No.1 told accused No.2 to wait outside with a knife and, if somebody comes, he may even assault that person, including the husband of the prosecutrix. Thereafter, accused No.1 shut the door of the house from inside. He had a knife with him. He pushed her on to the cot and told her to remove her clothes. She, therefore, did so. Then she told her to put the clothes on the chair and, thereafter, he put the knife aside and raped her. According to the prosecutrix, however, accused No.1 did not remove his clothes. According to her, the incident lasted for about fifteen minutes. Thereafter, since accused No.1 continued with the act, she pushed him. Thereafter, he told her to clean the floor , which was spoiled by semen, with a Chunari. Subsequently, he told her to wash his clothes as well as the said Chunari and, thereafter, accused No.2 poured about four to five buckets of water on her. Thereafter, both the accused persons took bath in the Osari of the house. Before their taking bath, both of CR.A/914/2005 8/12 JUDGMENT them together bathed the prosecutrix. Then accused No.2 started the motorcycle and both of them went away on the motorcycle. While going, accused No.1 told her at the point of the knife that, if she discloses about the incident, she would be done to death and then went away. 7.1 After about an hour, her husband came and, as she was crying, he inquired as to what had happened and she told him about what had happened. Then, on being asked by her husband, she along with her husband went to Jetpur Police Station and lodged the F.I.R. She then identifies the muddamal including her clothes, Chunari, bed sheet, etc. as well as clothes of accused No.1. The prosecutrix is subjected to cross-examination. The outcome of the cross-examination is that her answers are based on imagination. There is a pinch of exaggeration on every aspect and in doing so, her original version about the incident gets distorted. It emerges from her deposition that the Odhani was given to her by the police. She also states that she had not told the police anything else on the question as to how the Odhani was stained with semen nor was it noticed by her when the police recovered the same. It emerges from her cross-examination that her husband had gone out for having a Pan. He left around 10.30 P.M. and came back by 1.30 A.M. on the next day, i.e. after midnight, during which time the incident occurred. She admits that she had not raised any shouts or alarm when she was forced to take bath in the rain water or even when she was forced into the house. It also emerges from the cross- examination that she knew the name of accused No.1 because he was being discussed by ladies sitting outside the house while he passed by them. It also transpires from her cross-examination that accused No.1 tried to continue the act. Thereafter, they were so positioned that she could have given a kick to him, which she did no do. She admits that she had resisted accused No.1 by pushing and scratching him. CR.A/914/2005 9/12 JUDGMENT 8. Dr. Kalpeshbhai Manvar is examined at Exhibit 14. He says that the prosecutrix was brought to him on 03.07.2003, at Jetpur Government Hospital. She gave history of rape. He had examined her and found no stains of blood or semen. There were no injuries on her person except one abrasion of 0.5 cm. located two inches above left wrist of the prosecutrix. There was an old tear of hymen. No other injuries were found on her person. She was used to intercourse. Samples of her pubic hair, saliva, etc. were taken for being sent to F.S.L. The doctor admits during cross-examination that he has given opinion about a forced intercourse with the prosecutrix only on the basis of the abrasion on the left wrist of the prosecutrix. He also admits that there were no other indications of forced intercourse on the prosecutrix. The medical certificate is at Exhibit 16 and the Medical Case Papers are at Exhibit 17, where the history given by the prosecutrix is recorded in detail and runs in about two pages. The case papers indicate no signs of any injury. 9. Dr. Mansukhbhai Chhaganbhai Gajera is examined at Exhibit 19. He had examined accused No.1 on 03.07.2003. His evidence also indicates absence of any marks of intercourse. It also comes in evidence that sample of semen could not be collected due to non-ejaculation even after prostatic massage . He has, however, opined that accused No.1 may have had intercourse in last 24 hours. This opinion he has given on the basis of presence of smegma on glands penis. The case history recorded in the medical case paper (Exhibit 23) relating to accused No.1 indicates that he was at the house of the prosecutrix around 11.00 P.M. on 02.07.2003 and left by midnight, but had no intercourse. 10. Witness, Arvindbhai Ramjibhai, is examined at Exhibit 46. He is the neighbour of the prosecutrix. He has not supported the CR.A/914/2005 10/12 JUDGMENT prosecution case and has been declared hostile. He is examined by the prosecution to show the presence of the accused persons at the house of the proscutrix around the time of the incident. 11. The husband of the prosecutrix is examined at Exhibit 43. He supports the prosecution case in toto on the basis of what was told to him by the prosecutrix. 12. Witness Tarlikaben Chaturbhai Patel (Exhibit 47) is the P.S.O., who recorded the F.I.R., as given by Rupaben. She accepts that the F.I.R. was recorded by her, as given by the proscutrix, which is at Exhibit 25. 13. Having regard to the aforesaid evidence, the first and foremost thing that requires to be noted is that the story of the prosecutrix sounds too unnatural and is too weak to be confided in. The confidence gets further shaken by the fact that she has improved upon her story to suit her requirement. Her version that emerges from her deposition is not supported by her F.I.R., which is the first version. If the F.I.R. is closely examined, it is found that it is silent on the allegation that she was asked by accused No.1 to remove her clothes, about washing of clothes of accused No.1 as well as Chunari after the incident and taking bath by both the accused as well as the prosecutrix after the incident. The whole story about taking bath before the incident outside under the rain water in public gaze and even after the incident by accused Nos.1 and 2 in the Osari does not inspire any confidence. The neighbour has not supported the prosecution case. The prosecutrix has not raised any shouts or alarm and, therefore, the story of the prosecutrix becomes doubtful. CR.A/914/2005 11/12 JUDGMENT 13.1 There is another reason for not fully relying on the evidence of the prosecutrix, the reason being that there are no marks of any injury on her person or on person of the accused. The only injury that is found on her person is an abrasion near her left wrist. Though she asserts that she resisted and scratched the body of accused No.1, there are no corresponding marks on his person. 13.2 According to the prosecutrix, she was made to remove her clothes before the act and accused No.1 did not remove his clothes. However, then she says that, after the incident was over, he removed his clothes and got it washed. 13.3 The prosecutrix on the one hand says that when she opened the door for the first time, she found two strangers, whom she did not know and she came to know about their names because they addressed each other in their respective names, but in cross- examination, she admits that she knew accused No.1 by his name because when he used to pass by her house, he was being discussed by ladies. She, therefore, does not come out with a frank and correct story about her knowing the accused persons. 13.4 The F.I.R. is silent about use of Chunari for cleaning the floor. The Chunari is claimed to have been washed after the incident under the insistence of the accused. When it is seized, there is no reference to any stains of blood or semen. However, F.S.L. Report (Exhibit 56) indicates presence of semen of group “B” and presence of semen of group “B” on the petticoat. There is no evidence worth a name introduced by the prosecution to explain how presence of semen is found on petticoat as well as Odhani of the prosecutrix when the same were washed after the incident. The presence of semen on petticoat and Odhani cannot be considered as CR.A/914/2005 12/12 JUDGMENT a conclusive proof of rape by accused No.1 because there is no evidence to show that the semen group of accused No.1 is “B” because sample could not be collected and there is no evidence that the group of semen of the husband of the prosecutrix is other than “B”. 13.5 The medical evidence opining that there was possibility of a forced intercourse with the prosecutrix in recent past is founded only on the basis of a solitary abrasion found near her left wrist. This also does not inspire any confidence particularly when the deposition of the prosecutrix itself is found to be not beyond the shadow of doubt. 14. In light of the above discussion, we are of the view that the conviction of accused Nos. 1 and 2 cannot be sustained. The appeals, therefore, merit acceptance and the same are accepted. 15. The appeals are allowed. The judgment and order of conviction and sentenced rendered by the Trial Court, which is impugned in the appeals, is hereby set aside. The direction to pay compensation would also stand set aside. Accused No.1 be released forthwith, if not required in any other case. Bail bond of accused No.2 shall stand cancelled. Fine, if paid by the accused persons, shall be refunded. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt