CR.A/632/2003 1/73 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 632 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================== 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 ? ============================================================== SAYBABHAI SAGRAMBHAI GAMAR Versus STATE OF GUJARAT ============================================================== Appearance : MR HR PRAJAPATI for Appellant MR SP HASURKER APP for Respondent ================================================================== CORAM : HON'BLE MR.JUSTICE J.R.VORA Date : 22/07/2005 ORAL JUDGMENT 1 This appeal is preferred under Section 374(2) of the Code of Criminal Procedure against a judgment and order dated 18th of July, 2001, delivered by learned Additional Sessions Judge, Surendranagar, in Sessions CR.A/632/2003 2/73 JUDGMENT Case No. 60 of 1996, convicting the present appellant for the offenses punishable under Sections 363, 366 and 376 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment of three years and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment of six months for the offence proved against him under Section 363 of the Indian Penal Code, he was sentenced to undergo rigorous imprisonment of five years and to pay fine of Rs. 7,000/-, in default to undergo simple imprisonment of one year for the offence punishable under Section 366 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment of 7 years and to pay fine of Rs. 7,000/- in default to undergo simple imprisonment of one year for the offence punishable under Section 376 of the Indian Penal Code. It is also directed by learned Trial Judge that all the sentences shall run concurrently and that under trial period would be given in set off to the appellant. It is further directed by the learned Trial Judge that Rs. 10,000/- be paid to the victim from the amount of fine if recovered from the appellant. The appellant is in judicial custody during this criminal Appeal, and was not released on bail during trial. He preferred Criminal Misc. Application No. 6704 of 2005 for releasing him on CR.A/632/2003 3/73 JUDGMENT bail after suspending the sentence, but on inquiry it was found that the paper book is ready, so the Appeal is finally heard. The appellant has undergone including period of set off imprisonment of about three years and 11 months. 2 As observed by the Apex Court in the matter of STATE OF PUNJAB vs. RAMDEV SINGH, as reported in AIR 2003 SCW, 6947, the name of the victim is not published in the judgment, but she is referred as victim. 3 Prosecution case discloses that victim along with her family i.e. parents and three other brother and sisters resided at village Reshmiya of Chotila Taluka, District Surenderanagar. The victim is third children of her parents. The incident in question occurred at about April 1996. The accused appellant was a school teacher in a primary school of village Reshmiya, where victim was studying as his student. The victim studied upto Std. VII and thereafter she left study as the parents suspected relationship of the victim with the appellant. The houses of the appellant and the victim were situated nearby and leaving after 4 to 5 houses of the victim, the houses of appellant was situated. The CR.A/632/2003 4/73 JUDGMENT appellant was married, but it appears that his wife was not constantly staying at village Reshmiya. As per the prosecution case, in absence of his wife, appellant used to call the victim and was committing rape upon her. On account of this, the victim was pregnant for about four months when she was found with the accused around 24th of April, 1996. The prosecution story discloses that the appellant threatened the victim that if victim did not go with the appellant, she would be killed. Threats were also administered to kill brother of the victim. On 13th of April, 1996, the victim appears to have left her house along with the appellant. The prosecution case is that the appellant threatened the victim to go to his house early in the morning at 5.00 am and therefore he directed victim to go along with the appellant. Thus, on 13th of April, 1996, both of them left village Reshmiya and went to village Meldi on foot. From Meldi, they went to Chotila and from Chotila they boarded one truck and went to village Vankaner. They reached at Vankaner at noon and stayed overnight in one guest house at Vankaner. In the said guest house also the accused administered threats to the victim that if victim discloses anything, she would be done to death. The appellant – accused also used to administer threats to the victim not to disclose CR.A/632/2003 5/73 JUDGMENT the fact that the victim was pregnant. In the said guest house, again the appellant committed forcibly intercourse with the victim. Thereafter, it appears that for some days they moved around the villages and towns of relatives of the appellant and during this period also appellant committed rape on victim wherever they stayed overnights. They stayed together in this manner for about 10 days and ultimately both were found from village Belwada of Sabarkantha District on 24th of April, 1996 by the then Investigating Officer Jaswantsinh Bhikhubha Jadeja. Both of them was found near one temple of Lord Shiva. On 13th of April, 1996, the victim left the house and on 14th of April, 1996 at about 10.00 a.m. Father of the victim gave a complaint before Chotila Police Station to the effect that he himself was serving as Conductor in Gujarat State Road Transport Service at Chotila Depot. After giving the details of his family, he stated that on 12th of April, 1996 he had been to his job and returned on 13th of April, 1996 at noon. He was told by his wife that on earlier night all of them after watching TV slept in the open space i.e. front yard of their house. His wife further stated to him that when she awakened at 5.00 am, she found that victim was not in her bed. Therefore, she searched for the victim in the village. According to CR.A/632/2003 6/73 JUDGMENT complainant, the victim was aged 17 years and was studying in 7th Std. In Primary school where the appellant accused was her class teacher. He suspected of having illicit relation between the two and her study was discontinued. Complainant also searched the victim in their own village and at possible places where he found that appellant was also missing. Therefore a complaint came to be filed for the offenses punishable under Sections 363, 366 of the Indian Penal Code. During investigation, first Investigating Officer Jaswantsinh Bhikhubha Jadeja found both of them, as above said, on 24th of April 1996. Both of them thereafter were sent to medical examination where it was found that the victim was pregnant by four months and her clothes, blood, etc. were seized. Thereafter, the investigation was handed over to PSI Chotila Police Station Surajibhai Khavraji Kharadi, who after investigation, submitted charge sheet against the appellant for the above said offenses. 4 The case being committed to the Court of Sessions, a charge for the above said three offenses came to be framed against the present appellant on 26th July, 2000 at Exh. 25 where he pleaded not guilty and hence the prosecution produced following witness in support and CR.A/632/2003 7/73 JUDGMENT to prove its case. PW-1 Radheshyam Mohandas : Exh. 10 PW-2 Jagrutiben Radheshyam : Exh. 12 PW-3 Jaswantsinh Bhikhubha Jadeja : Exh. 19 PW-4 Mahendrakumar Jayantilal Upadhyay Exh. 23 PW-5 Dr. Pankajkuar Chhotalal Doshi : Exh. 26 PW-6 Surajibhai Khavraji Kharadi : Exh. 29 The prosecution also tendered following documentary evidence. 1. Medical certificate of the accused : Exh.14 2.Forwarding letter of Sample of accused : Exh.15 3.Arrest panchnama of accused – Exh. 15 4.Panchnama of Seizure of samples of victim- Exh. 17 5. Panchnama of seizure of clothes of victim– Exh. 18 6.True copy of page NO.9 of Birth register – Exh.24 7.Birth certificate of Jagrutiben Radheshyam- Exh.25 8.Police Yadi – Exh.27 9.Medical certificate of victim – Exh. 28 10.Original complaint – Exh.30 11.Copy of station diary Entry No.9 – Exh.31 12.Forwarding letter of mudammal to FSL – Exh.32 13.Receipt regarding mudammal recd by FSL – Exh.33 CR.A/632/2003 8/73 JUDGMENT 14.Report of FSL – Exh.34 15.Serological report Exh. 35 5 Thereafter as per Section 313 of the Code of Criminal Procedure, further statement of appellant was recorded. Though he denied that he had seduced the victim and committed rape, but he admitted that the victim study was discontinued on account of suspicion that there was illicit relation between them. He also admitted that on 24th of April, 1996, the victim was found with him by the Police at village Belwada. He also admitted that he was a class teacher of the victim and was staying nearby of the house of the victim. He denied that the victim was seduced by him and on account of rape committed by him, the victim became pregnant. He denied all other circumstances appeared against him in the evidence which was put in his examination under Section 313 of the Code of Criminal Procedure. He denied to tender any defence witnesses and stated that a false case is filed against him and a false compliant is lodged against him. 6 The learned Trial Judge thereafter heard learned APP and the defence counsel and came to the CR.A/632/2003 9/73 JUDGMENT conclusion that from the evidence on record it was amply established that the appellant committed rape upon the victim and on account of that, victim was got pregnant. Relying upon the provisions of Section 114 of the Indian Evidence Act, learned Trial Judge observed that a case of rape is established against the appellant and it was for the appellant to rebut the presumption arose against him that the act was with the consent of the victim as she was aged about 17 years. Learned Trial Judge after appreciating the evidence on record, came to the conclusion that the appellant failed to plead and prove his case of consent and therefore after appreciating the evidence on record, the learned Trial Judge concluded that the appellant was guilty for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and appellant was sentenced as aforesaid. 7 As being appellate court, it becomes the duty of the Court to undertake threadbare scrutiny of the evidence adduced on record independently. After appreciating the evidence on record thoroughly, an independent conclusion may be reached as to whether the appellant is guilty of the offence charged against the appellant. Thereafter it is to be concluded whether the CR.A/632/2003 10/73 JUDGMENT Trial Court has reached to just conclusion. To undertake this exercise, it is necessary to appreciate the evidence adduced on record. 8 As above said, the prosecution has attempted to prove its case through testimonial conclusions of six witnesses and by above mentioned documentary evidence. It is necessary to go through the said evidence to appreciate the same properly. 9 The prosecution examined PW-1 Radheshyam Mohandas at Exh.10 being father of the victim. He deposed that he was serving as Conductor in State Transport Corporation. It is also to be noted that his deposition is recorded on 3rd of November, 2000. PW-1 Radheshyam Mohandas further stated that the victim was his number 3 children and his family was staying at village Reshmiya. He further stated that the incident took place before four years of recording of his evidence. When on 13th of April, 1996, his daughter left his house, he was on his duty. On next day, when he reached to his house at Reshmiya, he was informed by his wife that on earlier day his children and wife after watching TV slept in front yard of the house, but when CR.A/632/2003 11/73 JUDGMENT she awakened early in the morning found that the victim was not in her bed. So, after getting assistance from his brother Pravin Mohandas and other persons – Lakha Limba, Lavji Ram, Rasik Manjaram, etc. he searched for his daughter. He also searched in the village for the appellant. The appellant was not found and hence he lodged a complaint before Chotila Police Station. He stated that at the time of the incident, his daughter was about 16 years of age. Three months prior to the incident, her study in the school was discontinued because he suspected that there might be illicit relationship between victim girl and appellant. He identified appellant in the court and stated that the appellant was serving as a teacher in the school. Thereafter, he deposed that his complaint was recorded in the police station as per his say. The complaint was shown to him. He confirmed the contents of the complaint Exh.11. He further stated that 12 days after lodging of the complaint, his daughter was found by the police. He stated that the birth of the victim took place in government hospital at Chotila, and birth is registered in the records of gram panchayat of Chotila. In his examination in cross, he stated that he married in 1973- 74. After about 2 years of marriage, the first child was CR.A/632/2003 12/73 JUDGMENT born. He deposed that on the day of recording of the deposition, his youngest daughter would be about 20 years of age. He stated that after the birth of the victim, Chandrika was born after about two years. He stated that he could not remember when the victim started her schooling. He admitted that during her study, the victim had failed once in the examination. He stated that he could not remember whether the victim failed in fourth standard. He admitted that his house is besetted by compound wall having a door. The said compound wall is about 5 to 6 feet height. The door of that compound was having a bolt and could be closed from inside. Ordinarily, after bolting the main road, they slept. He admitted that there is a population of agriculturists, etc in village Reshmiya. He also denied that in their village ordinarily people rises at about 4.00 am to 5.00 am. He stated that people rises at about 5.30 to 6.00 a.m. In cross examination he further stated that the school of the village is situated about 250 meters from his house and his house is surrounded by other residential premises. His brother was staying in neighbourhood. The appellant was staying three houses away from his house. He stated that he did not witness who actually abducted his daughter. CR.A/632/2003 13/73 JUDGMENT 10 PW-2 at Exh. 12 victim is examined. In first part of her deposition, she stated about her family and family members. Thereafter she deposed that the incident took place before about four years. She was studying in school of village Reshmiya. She studied upto Std. 7th. Appellant was her class teacher. She identified appellant before the court. She further stated that the appellant was staying 4 to 5 houses away from her house. She further stated that in absence of wife of the appellant at village Reshmiya, the appellant was calling her frequently and was committing rape on her. On account of which she was pregnant by four months. She stated that thereafter appellant stated to her that if she did not go with him, she would be done to death. She was threatened. She deposed that threats were administered to kill her brother as well. Thereafter the appellant told to her that at about 4 to 5 at night she should go to the house of appellant and accordingly she reached at the house of appellant and from there on foot they went to village Meldi and from Meldi they went to town Chotila and from Chotila, according to the prosecutrix, they boarded one truck and went to Vankaner at noon and stayed overnight in one guest house. According to her, they stayed in the CR.A/632/2003 14/73 JUDGMENT said guest house for 2 to 3 days. Till the end of their stay at guest house, the appellant threatened her not to divulge or else, the appellant would kill her. She further deposed that the appellant also threatened not to disclose that she was pregnant. She further stated that in the said guest house, the appellant was forcibly committing intercourse with her. She stated that at what various places they went from Vankaner, she could not say, but she stated that after leaving Vankaner, they went to various places of the relatives of the appellant. Wherever they stayed night at the relatives of the appellant, the appellant was committing rape against her will. After leaving Reshmiya, she stayed for about 10 days with the appellant. Thereafter appellant and she was arrested by the police from village where sister of the appellant was staying near one temple. The police brought them to village Chotila. She was sent to Limbdi for the medical examination where she was examined by the Doctor. After bringing them to Chotila, police seized the clothes worn by her. Police recorded her statement. She again stated that the person who committed rape on her was the appellant. She stated that before about six months from leaving village Reshmiya, the appellant for the first time committed rape on her. In her examination-in-cross, CR.A/632/2003 15/73 JUDGMENT she stated that she was aged about 6 to 7 years when she started schooling. She admitted that she was poor at her studies. She stated that she studied up to 7th Std. She stated that couple of time she failed in her examinations. She denied that she failed twice in Std.3 and Std.4. She further stated that in her school, there were six teachers. The school was up to 7th Std. She admitted that in each standard, the class teacher was different, but in Std.6 and in Std.7, there was one class teacher. She stated that it was not true that she had learn t reading and writing properly till she reached up to the Std. VI and VII. She was copying her home work. She admitted that she did her home work at her house. She came in the class of appellant from Standard 6th and from Standard 6th the appellant was her class teacher. She denied that she had affair with the appellant from the time she was studying in Standard Sixth. She denied that till she reached to Standard Seventh, the said affair converted in deep love. She stated that she never loved appellant. She denied that she was writing love letters frequently to appellant. She denied that she wrote about 35 to 40 letters to appellant. She denied that she wrote letters and threatened in the letters to the appellant to run away with her. She denied that she was threatening CR.A/632/2003 16/73 JUDGMENT to the appellant that if appellant did not marry her, she would commit suicide. She admitted that from her house to the school, the house of appellant was not situated on way. She did not complete Standard Seventh and in between she discontinued study. She denied that her parents came to knew about love affairs between her and the appellant and, therefore her parents discontinued her study. She denied that even after leaving the school, she had love affairs with the appellant and she was frequently visiting his house. She denied that in the presence of wife of the appellant also she used to visit the house of appellant. She admitted that her house situated at Reshmiya was enclosed by compound wall. She also admitted that at night after bolting the main door they slept. She denied that the statement before the police she did not state that “the appellant told her that they should run away and if the victim did not accompany him, she would be done to death and was threatened like that, and that appellant also threatened to kill her brother.” She denied that she did not state before the police that appellant told to her to go to his house at about 4.00 to 5.00 pm and, therefore, she had been to the house of the appellant. She stated before the police that “they went to Chotila on foot from village Meldi”. She stated that CR.A/632/2003 17/73 JUDGMENT it was not true that in her statement before the police, she did not state that “in the said guest house we stayed for three days.” She denied that she did not state before the police that “till the end of the stay at the guest house the appellant was threatening her not to divulge anything or else, I shall kill you and threatened me not to disclose that I was pregnant.” She stated that from Reshmiya to Chotila no other persons met them. She stated that when they reached at Chotila, there were many persons and there were persons at guest house at Vankaner. She stated that out of those persons, she did not reveal to any of them that the appellant was kidnapping her. She stated that that was because the appellant had threatened her earlier. She further deposed that on the day of the incident at night she, her mother and her two brothers were sleeping. She did not reveal to any family member that appellant had threatened her. She denied that the appellant had not given any threats to her. She denied that, about relationship between her and the appellant, her parents were aware and that was the cause for her parents to discontinue her studies. She denied that even then she continued love affairs with the appellant. She denied that she was afraid that her parents would beat her. She denied that CR.A/632/2003 18/73 JUDGMENT after discontinuance of her study, her parents restricted her movements out of her house. She denied that she started love affairs with the appellant willingly and she ran away with the appellant willingly. She denied that she instigated the appellant to run away with her. She denied that no incident had happened as deposed by her. She denied that on account of fear of reputation, the appellant was falsely involved in the said case. 11 PW-3 Jaswantsinh Bhikhubha Jadeja is examined at 19 and he stated that on 14th of April, 1996, he was in- charge of Dahod Police Station as Police Sub-Inspector and complainant lodged the complaint of the case. After recording complaint he investigated the case and recorded the statement of witnesses. On 23rd of April, 1996, he went to village Salera, Dantrada and Ambasar, etc. of Khedbrahma Taluka to the relatives of the appellant and upon an information, the appellant and the victim were found by him on 24th of April, 1996 in the sim of village Belwad near on temple of lord shiva. He drew a panchnama of arrest of appellant and both of them were brought to Chotila. The clothes were seized worn by both of them and both of them were sent to medical examination. After the medical examination, the victim CR.A/632/2003 19/73 JUDGMENT expressed her wish to go with her father and, therefore, she was entrusted to her father. Statements of victim as well as the appellant were recorded and the further investigation was entrusted to PSI of Chotila police station. He identified the appellant being accused of the case before the court. In July, 1996, again he was in- charge of investigation of this case and he submitted charge sheet against the appellant. In this cross- examination, he stated that Khedbrahma is at a distance of 8 to 9 hours, from Chotila they reached at Chotila at about 11.00 p.m. He admitted that