Cr.Appeal No. 509/1995 .HE 1 CRIMINAL APPEAL No. 509 of 1995 DATE OF DECISION : 29-11-1995 For Approval and Signature : THE HON'BLE MR. JUSTICE K.J VAIDYA AND THE HON'BLE MR. JUSTICE M.H KADRI MOHANLAL AMARJI MARWADI V/s. THE STATE OF GUJARAT 1. Whether Reporters of Local Papers may be allowed to s 2. To be referred to the Reporter or not ? YES 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? NO 5. Whether it is to be circulated to the Civil Judge ? YES, to all Criminal Courts. ...T.......T.......T.......J.......T.......T.......T.......J.......T.....Mr. S urin Shah, Advocate {Appointed} for the Appellant Mr. J.A Shelat, APP for the Respondent-State CORAM : K.J VAIDYA & M.H KADRI, JJ. 29-11-1995 ORAL JUDGEMENT Mohanlal Amarji Marvadi, by this appeal from jail has brought under challenge the impugned judgment and order dated 21st April, 1995, rendered in Atrocity Criminal Case No. 28 of 1994, passed by the learned City Sessions Judge, Ahmedabad, wherein he on his coming to be tried alongwith other three co-accused persons for the alleged offences punishable under Sections 376, 342 and 34 of the Indian Penal Code, and under Section 3 (1)(iii) and 3 (1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was convicted for the same (alongwith other co-accused) and sentenced to suffer (i) RI. for 10 years and to pay a fine of Rs. 3,000/= and in default to undergo further R.I for six months; and (ii) R.I. for one year and to pay a fine of Rs. 500/= and in default, to undergo further S.I for 1 months for the said two offences respectively. 2. To state the earliest and afresh prosecution case as it gets unfolded through the FIR (Exh. 52) lodged by PW-4 Manjula, the incident in question wherein she came to be allegedly raped by Mohanlal Amraji (appellant-accused) and thereafter her modesty outraged by Natubhai Gulabbhai Gadhvi (not before this Court) took place on 17-7-1994 at 6.00 p.m in shed No. 13, Dhaval Estate, situated near Chakudia Mahadev, Rakhial, Ahmedabad. It is the case of the prosecutrix that she belong to the Scheduled Caste. Further, according to her, on the aforesaid date and time, Nathubhai Karandan Gadhvi and Dilip Gulabsinh Gadhvi, who happen to be original accused Nos. 3 and 4 respectively serving as Watchmen came to her and under the pretext of calling her for fetching water took her to their office situated at Dhaval estate. Thereafter, the said accused persons after rolling down the shutters confining her in the room went away, and though she raised shouts protesting about, none came to her rescue. Thereafter, Mohanlal Amraji and Natu Gulabdan Gadhvi, who were staying in the nearby hutments, entered the office by opening-up the shutter, fell her down and in the process, the original accused No. 2 caught her hands and gagged her mouth. First, it was accused No. 1 who committed sexual intercourse with her. Thereafter, the accused No. 1 caught hold of her hands, and the accused No. 2 molested / outraged her modesty and thereafter, both went away. Thereafter, she also came out. At that time, accused No. 2 Natu slapped her and asked her to go away. To this Nathu and Dilip accused Nos. 3 and 4 respectively present there exclaimed 'do not beat her more, otherwise there will be a police case' !! Thereafter, she informed this incident to Lilaben - who happens to be wife of Natubhai, saying that her husband has outraged her modesty. It further appears from the record that on her way to the police station, she met PW-3, SRP constable-Gabdulal Ramdayal Sagwal and inquired from him as to where was the police station as she was raped. Thereafter, on reaching Rakhial Police Station, she gave a complaint (Exh-52) before PW-10 PSI J.A Patel at about 8-00 p.m. Thereafter, PW-4 Manjula was taken to PW-1 Dr. R.J Mankadia for her medical examination. On the basis of this information, all the four accused were arrested. They were also in turn got examined by the PW-1 and after the investigation was over, all of them came to be chargesheeted to stand trial for the alleged offences punishable under Sections 376, 342 and 34 of IPC and Sections 3 (1) (iii) & 3(1)(xi) of the Atrocities Act before the City Sessions Court at Ahmedabad. 3. At trial, the appellant as well as the other co-accused persons pleaded not guilty and claimed to be tried. It was their case that they were falsely implicated. According to Natubhai Gulabbhai Gadhvi (not before this Court) he was a Watchman in Dhaval Estate near where PW-4 complainant - Manjula and Champak were coming for secret meeting since last about a week and that he had warned them not to come. Not only that but for this purpose, he had also given a complaint to the police, but the police did not pay any attention to this. It is further his case that about 3-4 times he had warned both Manjula and Champak not to come there. According to him, Manjula getting enraged over this issue with a view to take revenge has filed a false complaint against him. While according to the accused No. 3 Nathubhai Karandan Gadhvi also (not before this Court), he did not know Manjula or Motibhai. He came to Ahmedabad for service just 20 days before the alleged incident from Kathiyavad. He was arrested from his house on 18th. He is innocent and that he is falsely implicated. According to accused No. 4 Dilip Gulabsinh Gadhvi (not before this Court) he was driving a ricksaw. At about 12.00 when he returned home, the police came and arrested him. On police making inquiry, he said that he was knowing nothing about the incident. He is innocent and falsely implicated. 4. The trial Court accepting and relying upon the evidence of PW-4 Manjula, convicted and sentenced the appellant and his other co-accused who are not before this Court as stated in detail in impugned order, giving rise to this appeal. Incidentally, as reported, other three accused persons viz., Natubhai Gulabsinh Gadhvi, Nathubhai Karandas Gadhvi and Dilip Gulabsinh Gadhvi have not filed any appeal before this Court. 5. At the time of admission, when this matter was called out on 14-11-1995, this Court prima facie in view of quite weak and vulnerable prosecution evidence while admitting the appeal though learned Advocate for the appellant had preseed hard for releasing the appellant on bail, we bearing in mind the grave and serious allegation of gang rape, instead of granting the said prayer directed the learned advocate Mr. Saurin Shah to prepare paper-book peremptorily fixing the Appeal for final hearing on 21-11-1995 with consent of the learned APP Mr. J.A Shelat. 6. Heard Mr. Saurin Shah, the learned advocate (appointed) for the appellant and Mr. J.A Shelat, the learned APP for the respondent State. According to Mr. Shah, the evidence of PW-4 is not dependable at all with its patent intrinsic infirmities and in that view of the matter, even in case she is corroborated by any other attending circumstances on the record, it would not be safe to convict the appellant as has been done by the learned trial Judge in the instant case. Mr. Shah further submitted that PW-4 has materially improved upon her case in the complaint and has given gloss suiting to her exigencies going even to the extent of falsely alleging rape to accused No. 2 which was not her case even in FIR Exh. 52 !! Not only that, but so far as the original accused No. 3 is concerned, there also appears to be a clear case of mistaken indentity. Mr. Shah further submitted that from tenor and nature of her evidence before the Court PW-4 appears to be a lady of easy virtue, and she appears to have been made scape-goat for claiming unjust ex-gratia compensation to the tune of Rs. 10,000/=. According to Mr. Shah such exgratia compensation may be a good policy in a given case but at the sametime it is indeed too dangerous as it may provide dishonest and malacious motivation for false accusation to earn cheap, easy money by some unfortunate hard pressed needy desperate persons !! According to Mr. Shah such ex gratia compensation policy is too tempting for any body to allege anything against anybody, much more when the concerned women or girl is suffering from extreme poverty making her desperate, helpless to survive at any cost, fair or foul !! This appears so from the cross-examination of her father PW-2 Motibhai Ranabhai and herself. According to Mr. Shah, the other corroborative pieces of evidence viz., the evidence of PW-2 Motibhai Ratnabhai and PW-3 SRP Constable Gubdulal, is also not dependable. According to Mr. Shah, despite the allegation of gang-rape, medical evidence on the point that of PW-1 Dr. Makadia is utterly silent so much so that victim Manjula even refused to get herself examined by the Gynecologist !! This circumstance of refusal to get herself examined by Gynecologist renders her evidence further vulnerable and doubtful to be accepted at its face value !! Making good all these submissions, Mr. Shah has carefully taken us through the evidence of all the prosecution witnesses examined before the Court and on the basis of the same he has utlimately vehemently urged that when the appellant has been alleged to have committed gang-rape, for which the minimum sentence provided is for 10 years, unless the prosecution evidence is proved to be of dependable nature and clinching enough entirely beyond any manner of doubt, no order of conviction and sentence ought to have been passed. Since, in the instant case, according to Mr. Shah, the evidence of victim PW-4 does not inspire that confidence, the appellant deserves to be given atleast the benefit of doubt and accordingly this appeal be allowed, acquitting the accused forthwith. 7. As against the above, Mr. J.A Shelat, the learned APP with equal vehemance has supported the impugned judgment and order of conviction and sentence passed by the trial Court. According to the learned APP, there was indeed no reason for PW-4 Manjula to falsely allege against the appellant and three others, if indeed no such incident of gang-rape as alleged had taken place. In this view of the matter, no exception be taken as regards the order of conviction and sentence passed against the accused persons and the same accordingly deserves to be confirmed. 8. Now, before we enter into the arena of the appreciation of evidence brought on the record, more particularly in the instant case wherein there is extremely grave and serious allegation of gang-rape against four accused persons, we indeed need to be extra careful and sound caution to ourselves bearing in mind two very important aspects involved in the case viz., on the one hand the overall sensitivity of the alleged gravity and seriousness of the offence, and that too gang-rape on Harijan girl and on the other hand any hasty, over-zealous, emotional, faulty, erroneous appreciation of prosecution evidence, the resultant outfall of which can be either denial of justice to the victim girl or foisting altogether patent injustice on an innocent accused !! Further, bearing in mind, on the one side as vehemently submitted by the learned APP if we are to decide this matter on the idealistic paddle swept with a passion for justice for women, more particularly obsessed with she being Harijan women, who are undoubtedly these days, day-in and day-out, are reported to be subjected to all kind of atrocities, cruelties including the rape, gang-rape, molestation, bride-burning and all sorts of insults and assault, etc., and at the sametime on the otherside becoming altogether quite oblivious to equally baseless, false, frivolous and fabricated not uncommon accusations these days levelled at the slightest pretext playing with the character, image of the innocent, sending him to the extreme penalty of life and atleast not less than 10 years, we are likely to wander away from the path of truth and justice, if the extreme idealism elbows out dispassionate objective approach while appreciating evidence !! These are the cases where the court has to swim safe, undisturbed admist the cross-currents flowing either in favour of the victim or of the accused. We cannot permit ourselves to be swept like straws and dead-fishes by the prejudice of repeated cases of rape, killing and other sorts of violence on women without closely scrutinising as to whether there is any dependable, sufficient, cogent and convincing evidence to record the ultimate order of conviction and sending the accused to jail to suffer the maximum punishment. At the sametime, while appreciating the evidence of the prosecutrix, we are also equally not supposed to scrutinise her evidence with a microscopic exactitude finding errors of dotting the "i" and crossing the 't' ie., some trivial inconsistencies, hair splitting here or there not cutting at the root of the prosecution case. We can not also permit ourselves to be oblivious to the hard fact of life that ordinarily no girl, and for that purpose not even her parents with whatever little sense she/they have would ever dare to falsely allege a rape having been committed on her !! The reason is by making such wild accusation against any person (which prima facie indeed quite easy to make) before the said accused person is actually tried and punished to suffer imprisonment which is indeed a matter for future and as uncertain for one does not know what way it would ultimately turn depending upon the credibility of the overall prosecution evidence may command, but the fact remains that by filing complaint of rape against the concern person she atones of her own unquestionably put herself in dock inviting all ugly gazes of the society towards her exposing herself to the whole world as a pitiable character, with broken seal, virginity sullied if she is unmarried and virgin and if married over and above the same to stay rest of her life with the husband and family members in the most embarrassed, depressed, self-pitied, humiliated way with her eyes always down cast floor-struck ! This by itself in a sense and way self invited, inflicted punishment perhaps worst than suicide, sadly affecting future, in the first instance, the marriage prospects if the victim girl is unmarried and in the second instance, rest of the married life if the victim woman is married one !! To allege and by filing complaint for rape, the whole episode would flood light exposing her to the society at her own hands, cost with an eye of pity that here is a poor girl/woman raped ! Accordingly, before alleging / accusing / admitting any person of having committed rape on her, she is indeed in such a breath-taking traumatic mental condition, difficult to imagine even for the male-world, and therefore, it is not that easy to so allege that somebody has committed rape on her ! This is the ordinary way of looking at the things, under ordinary circumstances, and ordinarily the same is found to be quite true. But this is not the only yardstick in all the cases for all the times to come in the criminal trial to appreciate the evidence of victim girl irrespective of other attending facts and circumstances of the case !! The most obvious and the first distinguishing reason is that till the time ultimately the court scrutinizes the evidence, reaches a definite conclusion beyond any manner of doubt that the accused is guilty, the accused is also presumed to be innocent. So when the trial commences, before the Court, there are two simultaneous balancing pictures, first one that no girl would ordinarily falsely accuse any person of the rape, and secondly, the accused is presumed to be innocent till proved guilty. Precisely, it is from this stand point, base that justice montaineering, justice expedition begins and we have to climb up and reach the pinnacle of justice unruffled by stormy weather ! Further the gravest the charge and equally stringent the punishment provided for it, it is the foremost guarded duty of the Court to see that in undue hurry, haste or sometimes even inadvertently swayed by class, caste prejudices, it does not reach the wrong conclusion on the basis of some street, press-trials which certainly in some given cases may not be that false, without the grain of truth, but at the sametime in a given case the same as well can also be, may be false, doubtful and we indeed do not know whether the case we are trying is one such case where appearance given to it may not have any substance precisely because based on engineered rumour ! With a view to see that some concerned trial Judge in a given case may not fall prey to the irresistible fear that if it decided the case in favour of the accused against the overwhelming public opinion, how indeed he would be viewed and characterized, in the eye of people, he is required to be made of the sterner stuff !! What we mean is with all dust and din raised by the prosecution, accused, street and press-trials alround the trial court has to be ultimately true to its own conscience, hear its dispassionate voice and deliver the justice as per its dictates without fear of brick-bats and greed for boquet !! The consideration neither of cheap recognition and appreciation of judgment nor its condemnation should be given any weightage when the Court is called upon to do justice !! While discharging the call of duty, judge has to transcend the consideration of greed of boquet and fear of brick bats, faithfully keeping in mind the only concern for justice !! Court always appreciates the value of public opinion and press trials, in fact it should be thankful to it in a given case for championing, crusading the cause of public justice but this awe and reverence of the public opinion and press-trial has to be respected within the permissible bounds only, may be it is sometimes based on some interested baseless rumours !! Every court when called upon to appreciate the evidence of complainant can never afford to be oblivious to the basic human make ups where even endowed with the best the of virtues, still some persons, in their unguarded weak moments of life sometimes are not that free of their frailties where he/she is still not that fully rational where ulterior motives in him/her occasionally peeping out over powers their virtues and make them act quite sadly and madly as wild animals pouncing upon the innocents making even palpably false accusations against them !! This natural, changing phenomenon, behavioural pattern of human being was continues to be as it was and what ought we not know may further continue even in future till the time of course the improved quality of human race descends on earth to bless us !! It is indeed too difficult to fathom the minds and the inner-most recesses of the heart of a person as to why he/she is out to falsely implicate or support wild, baseless allegations against anybody !! It is anybody's guess sometimes right sometimes wrong. A victim or a witness may be right or wrong, but that shall have to be ultimately judged and decided on the basis of the intrinsic credibility of his/her evidence before the Court !! The reason is one cannot rule out the possibility these days where any sort of allegation can be flunged against any person at any point of time putting the ball in the cot of the court taxing, testing its wisdom, pragmatism to do justice. Under such circumstances, if by chance the court fails or is swept by the ordinary approach, it is very likely that in a given case it may become the instrument of miscarriage of justice. Accordingly, it is here that the court has to become quite conscious ! It is here that the court has got to be extra alert !! It is further here that the court should always be on constant unwinking guard with a view to see that its craving, passion, zeal and zest for justice to weak and down-trodden at any time to curb the social evil, that its over zealous enthusiasm does not cross the limits and become handy instrument in the hands of character assasin and ultimately turn out to be injustice !! For this, it is here that the scales of justice, in order, it is not disturbed slightly even by the wafting breezes, like fast moving fan distrubing the golden-scale, the court also like a goldsmith always and invariably must put its golden scale of justice in tightly safe and secured place where it is not tilted or lose the balance by wafting thoughts, cross-breezes of over-enthusiasm passing across the mind while deciding the case !! 9. With the aforesaid background, we now proceed to appreciate the evidence of PW-4 Manjulaben and thereby the ultimate turn out of the fate of appellant in the instant case. According to PW-4, in her examination-in-chief at para-1, she has asserted that she knew all accused persons, who were present in the court room. At the sametime, in examination-in-chief itself quite strangely adds for the first time that she also knew accused No. 3 Nathubhai as Mathurbhai !! In para-23 of cross-examination she has clearly admitted that she was knowing accused No. 3 Mathurbhai from the date of the incident only and before that she was not knowing him not only that but she had not even talked with him !! According to PW-4, on the aforesaid date, time and place, when she was sitting on Otta of Chakudia Mahadev, Natu and Dilip original accused Nos. 3 & 4 respectively came to her and told her that since they want to wash the clothes, accompany them to fetch water. Accordingly, she alongwith the said accused persons went to the office, where she was taken to the first floor. There both the said accused persons placed two buckets and thereafter stepped down closing the shutter. At that time, Mohanbhai Marvadi (present appellant) was sleeping in the office. Thereafter, Natu opening the shutter entered in and while gagging her mouth, tide her hands and feet with rope. Thereafter, she was made to lie down on the table and in process her bangles were broken, and after lifting her clothes, the accused No. 1 mounted over her. After he came down, that was accused No. 2 who fell over her and he also did the same thing. While Natu was doing this, the accused No. 1 was sitting nearby. Thereafter, both the accused persons while leaving, threatened PW-4 saying that if she ventured to report to the police, she will be beaten more. Thereafter the accused Nos. 1 and 2 went out of the said premises. During the relevant period, the accused Nos. 3 and 4 were sitting outside on the Otta. PW-4 also thereafter came out and on her way back called one SRP constable who was sitting near Chakudia Mahadev. The said SRP constable PW-3 asked her to go to the Police Chowky. Thereafter, she went to Rakhial Police Chowky and gave a complaint (Exh-52), which came to be recorded, as stated above in para-2 of this judgment. It is further the case of PW-4 that she has studied upto Std. X and she knew how to put signature in Gujarati. Lilaben is wife of the accused No. 2. After the police recorded the complaint, she was taken in police car to the house of the accused No. 2, where all the four accused persons were present who were arrested and taken to the police station. Thereafter, PW-4 was taken to