CR.A/1990/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1990 of 2004 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 ? ===================================================== GOVINDBHAI GIRISHBHAI ZALA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR PK SHUKLA for Appellant(s) : 1, MR BHATE, APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI CR.A/1990/2004 2/8 JUDGMENT Date : 03/04/2008 ORAL JUDGMENT 1. The appellant-original accused, by Judgment and order dated 29th October, 2004 passed by learned Additional Sessions Judge, Nadiad, in Sessions Case No.270 of 2003, was convicted for offences punishable under Sections 366 and 376 of the Indian Penal Code. He was sentenced to R.I. for 5 years and 7 years respectively and also to pay fine. It may be noted that though, he was charged also under Section 366 of IPC, he was acquitted of the said charge. 2. As per charge Exh.6, it was alleged against the appellant that, on 16.06.2003, he had gone to the house of the complainant and introduced himself as a relative of the father-in-law of the victim girl. He was accompanied by a lady whom he described as his wife. Next day, on the pretext, that he wants to take out photographs of the girl, he had taken her with him and thereafter, had intercourse with her against her wish. CR.A/1990/2004 3/8 JUDGMENT 3. PW-1, Rajesh, complainant is brother of the victim girl. He was examined at Exh.9. He stated that his sister was engaged to one Suresh, son of Shivabhai. On 16th, one gentleman came with a lady and introduced themselves as maternal uncle and aunt of Suresh. He welcomed them. They stayed at his house at night. Next day, they took his sister with them saying that they would visit Kapadvanj and come back. Till 3 O'Clock in the afternoon, since they did not return, he started searching for them and called up the family of Suresh. The accused had left some of the clothes at the house of the witness from where, he could find his photograph. Since his sister was not found, he lodged complaint with the Police. A month and six days later, his sister was found, which he came to know when police had called him. 3.1 In the cross-examination, he stated that Suresh's father Shivabhai had said that he had no such relation with the accused, upon which he had filed the complaint with the Police. CR.A/1990/2004 4/8 JUDGMENT 4. The victim girl PW-2, Exh.11 stated in her deposition that the accused had come to her house as an uncle of Suresh and stayed at her house at night. Next day, to take out her photographs, he had taken her to Kapadvanj on a scooter. Thereafter, she was taken to Dakor where they reached in the afternoon. She had told them to drop her at home but the accused told her not to worry. At Dakor, three of them had stayed in a hut. The accused had, against her wish, committed intercourse. He repeatedly raped her at night against her wish. Next day, she was taken to Pavagadh. The accused was telling her to get married to him. He was never leaving her alone. He used to threaten and terrorize her. He used to have intercourse with her against her wish. Out of fear, she could not complain. He did not heed to her request for being returned to her house. Once they were going in a Chhakado Rickshaw, to get away from him, she jumped from the moving vehicle and got hurt on the head and on the forehead and had started bleeding. Ultimately, the Police had caught three of them from Dabneshwar village. She stated that at the time of incident, she was aged 17 years. CR.A/1990/2004 5/8 JUDGMENT 4.1 In the cross-examination, she was asked questions suggesting that at various places she remained with the accused at public places which were frequented by other people but she had not complained to anyone. 5. Dr.Dhumil Praikh, PW-3, Exh.12 had examined the victim girl on 22nd July, 2003. He had noted the history of sexual intercourse on the girl without her consent. He had found that on the forehead there were two stitches. The girl had also got injured on the thigh. Her hymen was ruptured. She was complaining of acute pain on the Vagina and her cervix had got swollen. He had got the samples of nail, blood, saliva, vaginal swab sent for chemical analysis. 6. Prosecution also examined one Kusumben Patel, PW-6, Exh.21 who was the Principal of the Primary School where the victim girl had studied. She produced the school certificate at Exh.30, according to which, the victim girl was born on 12.4.1986. CR.A/1990/2004 6/8 JUDGMENT 7. It is on the basis of this evidence that prosecution sought to have prove the charges. 8. Having heard the learned advocates appearing for the parties and having perused the evidence on record, I find that the prosecution had led reliable cogent evidence to prove that the accused had committed offences punishable under Sections 366, and 376 of IPC. 9. PW-1, Rajesh, had described that the accused had come to the house introducing to be an uncle of his sister's fiance. He had come with a lady who he claimed to be his wife. They had taken the victim girl with them under the pretext of taking her photographs. However, upon being contacted, Shivabhai, father of Suresh, denied having any such relatives. The girl did not return home on that day and long time thereafter, she was brought back by the Police more than a month after the incident. The victim girl in her deposition narrated the events which took place after 17th June, 2003. She was taken CR.A/1990/2004 7/8 JUDGMENT by the accused at various places and he had intercourse with her against her wish. He used to threaten her and terrorize her. 10. None of the witnesses have any previous enmity against the accused. The victim girl had no reason to falsely implicate him. She has clearly stated that she was being forced and the appellant would repeatedly have intercourse with her without consent. The Doctor's opinion also corroborates with the version of the victim girl. The Doctor stated that victim girl was complaining of acute pain on the Vagina and her cervix had got swollen. Victim girl had stated that to escape from the accused, she had jumped from the moving Chhakdo Rickshaw and in the process had got hurt. The Doctor noticed two stitches on forehead and injury on her thigh. 11. I find that there was sufficient evidence to prove the charges under Sections 366 and 376 of IPC. It is true that the victim girl was with the accused for a long time and she was taken from one CR.A/1990/2004 8/8 JUDGMENT place to another often passing through public places. However, one may recall that girl was aged only about 17 years. She was threatened and terrorized and subjugated by the appellant. Therefore, if she had not shouted for help or she became mute due to assault on her and violation of her privacy, the same cannot be the factors to believe that she was a willing partner in the acts of sexual intercourse. 12. In the result, I find that learned Judge committed no error in convicting the appellant for the aforesaid offences. Conviction and sentence are therefore upheld. Appeal dismissed. (AKIL KURESHI, J.) ashish//