CR.A/867/2003 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 867 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= AJAY NAINSINGH DANTANIA - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR JM BUDDHBHATTI appointed by Legal Aid Committee for Appellant MR KT DAVE ADDL.PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 02/03/2007 CR.A/867/2003 2/40 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. A seven years old female child was kidnapped from the legal guardian and thereafter was subjected to sexual abuse as well as rape by the appellant, Ajay Nainsingh Dataniya ('the accused' for short). The accused was, therefore, charged and tried by the learned Additional Sessions Judge, Court No.9, City Sessions Court, Ahmedabad in Sessions Case No. 39 of 2003 for commission of the offences under Sections 363, 366 and 376 of the Indian Penal Code ('IPC' for short). 2. At the end of the trial, the accused was found guilty of the offences under Sections 363 and 376 IPC and resultantly he was convicted vide judgment and order dated 6.6.2003 and sentenced to suffer RI for two years and fine of Rs.3,000/- i.d., S.I. for further period of six months for commission of offence under section 363 IPC and RI for ten years and fine of Rs.5,000/- i.d., SI for further period of six CR.A/867/2003 3/40 JUDGMENT months for commission of the offence under section 376 IPC. It is also ordered that both the sentences shall run consecutively, that is, one after the other. So far as the charge for commission of offence under Section 366 IPC is concerned, the accused was given benefit of doubt and is acquitted of the said charge. 3. Aggrieved by the aforesaid judgment and order of conviction and sentence, the accused has filed this appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short). 4. Briefly stated, the prosecution case as disclosed from the FIR and unfolded during trial, is that: 4.1. P.W.1, Geetaben Jitendrakumar Sathwara, the complainant, is the sister of the mother of the prosecutrix – victim girl, aged about 7 years at the relevant time, who will be hereinafter CR.A/867/2003 4/40 JUDGMENT referred to as 'X' in this judgment, who is also her paternal aunt as both Geetaben and Sangeetaben are married to the real brothers and are residing in the same family under one roof. 4.2. As per the prosecution case, on 9.10.2002, in the evening, when Geetaben was going for purchasing vegetables in the nearby market, she found her niece 'X' returning home from school. She told her to reach home and when she returned after purchasing vegetables, her sister Sangeeta asked her the whereabouts of X and the complainant was surprised to find that X did not reach home. They made a frantic search around. At that time, the complainant suddenly found X coming out from a building which was in a dilapidated and incomplete state. She was found crying and a boy, aged 20 to 21 years, was found following her who also came out from the same building. On inquiry as to whether the boy had done anything to her, X replied in affirmative and it was realized that she was ravished. At that time, the boy started running away and with CR.A/867/2003 5/40 JUDGMENT the help of the passersby, he was caught and he was found to be Ajay alias Munno, a resident of “Saraniavas”, a slum area of “Vaghri” community. He was taken to Odhav police station and a complaint was lodged against the accused by P.W.1, Geetaben for commission of the offence under Sections 363, 366 and 376 IPC for kidnapping and ravishing X, which was registered by P.W.6, BJ Kansara, which is on record at Ex.21. 4.3. Thereafter P.W.6, BJ Kansara, started investigation. During the course of investigation, he drew the panchnama of recovery of clothes of X and thereafter X was sent with a police yadi and with a woman constable to civil hospital for medical check up. Panchnama of the person of the accused was drawn and panchnama of the recovery of the clothes of the accused was also drawn. Thereafter accused was also sent to hospital for medical check up. He recorded statement of witnesses. During the course of investigation, the accused also gave a complaint CR.A/867/2003 6/40 JUDGMENT that he was beaten by two unknown persons and therefore P.W.6, BJ Kansara, also recorded a NC complaint of the accused for commission of offences under sections 323 and 114 IPC against two unknown persons. Thereafter he drew panchnama of the scene of the offence as per the place shown by P.W.1, Geetaben. Thereafter he sent muddamal to FSL for analysis. After getting the injury certificates of X as well as the accused and after receipt of the report from FSL and as incriminating evidence was found against the accused, P.W.6, BJ Kansara, filed charge sheet against the accused for commission of the offences under Sections 363, 366 and 376 IPC in the Court of learned Metropolitan Magistrate, Ahmedabad for commission of the offences under sections 363, 366 and 376 IPC. 4.4. As the offences under sections 363, 366 and 376 IPC are exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad, committed the case to the City Sessions Court, Ahmedabad. CR.A/867/2003 7/40 JUDGMENT 4.5. The learned Additional City Sessions Judge, Court No.9, City Sessions Court, Ahmedabad to whom the case was made over for trial, framed charge against the accused for commission of the offences under sections 363, 366 and 376 IPC. The charge was read over and explained to the accused and as the accused pleaded not guilty to the charge and claimed to be tried, he was tried by the trial court, in Sessions Case No. 39 of 2003. 4.6. In order to bring home the charge levelled against the accused, the prosecution has examined in all 9 witnesses and relied upon their oral testimonies. They are as under: P.W. No. Name Status Ex. No. Page No. 1 Geetaben J. Sathwara Compla- inant 5 45-54 2 Prosecutrix X victim 6 55-56 3 Khodidas Kashiram Patel Panch witness of the scene of offence 7 67-70 CR.A/867/2003 8/40 JUDGMENT P.W. No. Name Status Ex. No. Page No. 4 Renuka Mahesh Patel Panch of the recovery of the clothes of X 12 71-74 5 Babubharti Laxmanbharati Goswami Eye witness 17 75-82 6 Bhupendra Jayantilal Kansara Investiga ting officer – police officer 20 83-92 7 Suresh Ramkrupal Mishra Panch witness of recovery of clothes of accused 27 93-96 8 Dr. Krunal Dashrathbhai Patel Medical Officer who examined prosecutr ix X 30 97-104 9 Dr. Shilpa Kanubhai Yadav Medical officer who examined the accused 34 105-110 4.7. To prove the culpability of the accused, the prosecution has also produced and relied upon the documents like complaint, injury certificate of X as well as the accused, panchnama of the scene of offence, panchnama of recovery of CR.A/867/2003 9/40 JUDGMENT clothes of X as well as the accused and FSL report. 4.8. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against him in the evidence of the prosecution and recorded his further statement under section 313 of the Code. He denied the incriminating evidence produced by the prosecution and further stated that there was an eve-teasing of Geetaben by some people of 'Saraniavas' and, therefore, he has been falsely roped in this false rape case and false complaint was filed against him. He denied the case of the prosecution in toto but did not produce any evidence nor did he examine any witness in support of his defence. 4.9. On appreciation, evaluation, analysis and scrutiny of the evidence of the prosecution, the trial court came to the conclusion that charge against the accused for commission of offence CR.A/867/2003 10/40 JUDGMENT under section 366 IPC has not been proved and therefore he was given benefit of doubt in respect of the said charge. However, the prosecution has successfully proved that X who was aged about 7 years at the relevant time has been kidnapped by the accused from lawful custody of her father without consent and with an oblique motive to commit rape on her and he has taken her to a dilapidated house and ravished her and therefore complicity of accused for commission of offences under sections 363 and 376 IPC has been duly established and resultantly the trial court held him guilty for the said offences and convicted and sentenced him to suffer RI, to which reference is made in the earlier paragraphs of this judgment, which has given rise to this appeal at the instance of the original accused. 5. Mr. Buddhbhatti, learned advocate appointed by Legal Aid Committee for the accused, has contended that the accused is quite innocent and he has been falsely implicated. It is also highlighted by him that as per the medical CR.A/867/2003 11/40 JUDGMENT evidence, hymen of X was not ruptured and therefore there was no penetration of penis of accused into the vagina of X and unless penetration is completed, offence of rape cannot be held to be proved. He also contended that the judgment and order of the trial court is based on inferences and surmises. He has also submitted that there is only an attempt to commit rape and actual rape had not taken place. According to him, if we accept the medical evidence, the charge of rape is not proved as the accused has only attempted to commit rape and in that case gravity of the offence is very much less and, therefore, according to him the punishment is required to be reduced as the accused has committed the offence under section 376 read with Section 511 IPC. Therefore, he submitted that the appeal may be partly allowed. In the alternative, he has submitted that if this Court comes to the conclusion that the accused has committed the offence of rape, in that case, looking to the age of the accused, CR.A/867/2003 12/40 JUDGMENT which was 20 years at the time of the incident, leniency may be shown towards him so far as the sentence is concerned. It is, therefore, submitted by him that in view of the proviso to sub-section (2) of Section 376 IPC, the sentence of ten years may be reduced by awarding the sentence undergone by him. He, therefore, urged to pass appropriate order in this regard. 6. Mr. KT Dave, learned APP for the respondent - State of Gujarat, in reply to the above contentions of Mr. Buddhbhatti, has submitted that there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the accused kidnapped X from the lawful guardian and taken her to a dilapidated house and committed rape on her. It is also asserted by him that now- a-days offence of sexual harassment and rape, more particularly on minor girls, are on increase. According to him, the evidence of P.W.1, the complainant, P.W.2, victim X, P.W.5, eye witness, P.W. 3, 4 and 7, who are the panch CR.A/867/2003 13/40 JUDGMENT witnesses and P.W. Nos. 8 and 9 medical officers who have examined the victim X and the accused respectively and the medical certificates and FSL report are so eloquent and so clinching that they corroborate each other and they leave no room for any doubt that the accused had kidnapped X and thereafter taking her to a dilapidated house ravished her. The medical certificates in respect of the victim X and the accused as well as FSL report establish that there was penetration of penis by the accused into the vagina of X as a result of which there was profuse bleeding from the vagina of the X. Therefore, according to him, the prosecution has established the charge levelled against the accused for commission of the offences of kidnapping and raping the victim X, beyond reasonable doubt, and more particularly looking to the age of the victim and the way and the manner in which the offence has been committed by the accused, no mercy can be shown to him by reducing the sentence imposed on him. He has also submitted that there is no merit in the appeal CR.A/867/2003 14/40 JUDGMENT and the appeal does not deserve any consideration of this Court. He, therefore, urged to dismiss the appeal. 7. 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. CR.A/867/2003 15/40 JUDGMENT 8. At the outset, be it stated that from the very beginning, the case of the prosecution has been that X, who was aged about 7 years at the relevant time, while she was returning home from her school, the incident in question took place. The maternal and the paternal aunt of X, who is the complainant in instant case, has been very specific that her younger sister has one daughter and one son. The daughter was studying in Nikita Primary School in standard 2. The complaint given by her also gives these details wherein she has not specified the birth date. When X was taken for the medical examination, her age has been reflected in the medical case appears which is of 7 years and the investigating officer had also collected a certificate from the principal of Nikita Primary School which is identified and proved during his deposition which shows the birth date of X to be 19.12.1995 and she is said to be studying in standard 2. Her original birth certificate has been brought on the record which shows her birth date to be 19.12.1995. Both these documents being public documents and are CR.A/867/2003 16/40 JUDGMENT admissible in evidence and, therefore, there is no reason to disbelieve the said two certificates showing the birth date of X as 19.12.1995. Therefore, on the day of the incident, she was 6 years and 10 months old. It is also the prosecution case that she has been kidnapped by the accused and taken to a dilapidated building and after removing her undergarments, committed rape on her. It is the case of the prosecution that victim X was found coming out of the dilapidated building and she was crying and the accused was found following her who also came out from the said building. On the complainant asking the victim X as to whether the accused had done anything wrong to her, victim X replied in affirmative and on the complainant raising shouts to catch hold the accused, he started running and the passersby who were within an earshot, chased him and caught him on the spot and took him to the police station. 9. In order to prove the case of the prosecution, the prosecution has firstly examined CR.A/867/2003 17/40 JUDGMENT and relied upon the evidence of P.W.1,Geetaben J. Sathwara, Ex.5, page 45 of the paper book. She has, inter alia, testified that she lives at Shivdham society with her family. Sangeetaben is her younger sister. Both the sisters are married to the real brothers. They live in a joint family. Sangeetaben has a daughter and one son and that daughter is X who studies in Nikita Primary School in Standard 2. Her school timings are from 12 noon to 5 P.M. She has further testified that on 9.10.2002, X had gone to her school at 12 noon. It takes about 25 minutes to walk to the school. There are other two/three children studying in Nikita Primary School and they all go together but on the day of the incident X went to school all by herself. This witness found X coming back from the school while she was going to purchase vegetables. But, X did not reach home. After she returned from the market, her sister had told her of the fact that X was missing. When they made a search, after a while, she was found coming out from a nearby building which was in an incomplete and CR.A/867/2003 18/40 JUDGMENT dilapidated stage and the accused was found to be coming out from the same building following the girl. This witness has also testified that she has filed complaint in this regard. 9.1. This witness has been cross-examined at length by the learned advocate for the accused. She has admitted that as the guardian, in the school of X, her parents have been named and they both are living and residing together. So many suggestions have been put to her in her cross- examination suggesting that no such incident had ever happened and the accused has been wrongly roped in the rape case but she has repelled all the suggestions and withstood the test of cross- examination and nothing substantial has been brought out in her cross-examination which would make her evidence impeachable. On the contrary, her evidence inspires confidence. Her evidence is trustworthy and there is no reason for her to tell lie. According to this court, the trial court has rightly relied upon the evidence of P.W.1,Geetaben J. Sathwara. CR.A/867/2003 19/40 JUDGMENT 10. The prosecution has thereafter examined and relied upon the evidence of P.W.2, prosecution X, Ex.6, page 55 of the paper book. She is a child witness and, therefore, prior to administering oath to her, certain questions were asked to her by the trial court to ascertain as to whether the witness understands the sanctity of oath and also about the incident and after ascertaining the said aspect and after satisfying that the witness understands the sanctity of oath and about the incident, she was given oath and her statement was recorded in question and answer form. 10.1. The prosecutrix X has testified that she goes to school at 12 noon and comes back at 5.30 P.M. and it is her mother who brings her back. On the day of the incident, she went to the school at 12 noon and had worn a chaniya choli of red colour. While she was returning home at 5.30 P.M. she met her aunt at the Shivdarshan society who was going to the market for purchasing CR.A/867/2003 20/40 JUDGMENT vegetables. When she was returning home, she met a boy behind her house who threatened her that she should go with him or he will hit her on the head with a stone and then she was taken in an old shop. 10.2. In her cross-examination, she had also replied that in the school her father's name is shown to be Rajnikant and her mother's name is Sangeetaben and she lives with her parents. On the date of incident, her mother had not gone to fetch her from the school and she was coming all by herself. She had identified the accused before the court as the boy who had taken her inside the old shop and she had been specific that before she saw him twice in the court i.e., on the first day when her deposition was not recorded and on the day on which her deposition was recorded before the court but she had seen him for the first time on the date of incident. The trial court found this child witness to be extremely young and innocent. Her entire deposition was required to be taken in the question and answer CR.A/867/2003 21/40 JUDGMENT form but she had been very clear and specific in answering all the questions that had been put to her. Her evidence needs to be read as a whole and not by reading one answer here and there. On appreciating the entire evidence, it has to be concluded that the prosecution has succeeded in proving the charge of kidnapping and raping the prosecutrix X by the accused. 11. Thereafter the prosecution has examined and relied upon the evidence of P.W.5, Babubharti Laxmanbharti Goswami, Ex.17, page 75 of the paper book. He has testified that he lives in house No.118 of Shivdham Society whereas the complainant and X live in House No.122. They are neighbours since last two years and he works as a driver in AMTS but due to financial crunch in AMTS he has started his business and does not go for job. On 9.10.2002 at around 6.30 P.M. he was going on the road in the society when he heard shouting “catch him, catch him” and, therefore, he ran after the accused and he also found that there were two persons with wooden sticks in hand CR.A/867/2003 22/40 JUDGMENT coming from the opposite side of the road who caught the accused and was inquired of the name and he said his name as “Munno”. As the mob gathered, those two persons with wooden sticks had gone away and, therefore, their names were not known. In the meantime, Sangeetaben came with X and told that the boy did a bad thing with her. He also inquired with X and she said that the accused had threatened her to hit her with a stone on the head and took her in the shop which was incomplete and in a dilapidated condition. This witness had stated that he first went to the police station and informed them and came with the police in about 15 to 20 minutes. As the police station is at a distance of about half a km. Geetaben went there walking. 11.1. This witness was cross-examined at length by the learned advocate for the accused. In the cross-examination, he has repelled all the suggestions put by the defence with regard to the incident in question has not taken place. He reiterated that the incident has taken place and CR.A/867/2003 23/40 JUDGMENT he has also gone to the police station along with P.W.1, Geetaben. He withstood the test of cross- examination and nothing substantial has been brought out from his cross-examination which would impeach his credibility. 12. On reappraisal of the evidence of the aforementioned three witnesses, it cannot be disputed that while X was returning from the school she was kidnapped by the accused and he took her into a dilapidated building and ravished her. 13. Now this takes us to examine the medical evidence. In this connection, the prosecution has examined and relied upon the evidence of P.W.8, Dr. Krunal Dashrathbhai Patel, Ex.30, page 97 of the paper book. He has testified that on 9.10.2002 when he was serving as a causality Medical Officer at the Civil Hospital, a woman police constable having buckle No. 6680 had brought X to the hospital. The history of the incident was given by her mother and as per the CR.A/867/2003 24/40 JUDGMENT history that when the victim X was returning home from the school, one unknown man had taken her to the shop which is still under construction at Shivdham society, Odhav, and he committed rape