CR.A/818/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 818 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 ? ========================================================= ISHVARBHAI MAGANBHAI TADVI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) :MR NN PRAJAPATI for Appellant(s) MR HANSA PUNANI, APP for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/01/2008 ORAL JUDGMENT This appeal is directed against the judgment and order dated 18.5.2004 passed by the learned Additional Sessions Judge, Fast Tract Court No.3, CR.A/818/2004 2/8 JUDGMENT Vadodara. By the impugned judgment, the appellant was convicted for offence under section 376 of the Indian Penal Code and sentenced him to 7 years of rigourous imprisonment and also ordered to pay fine. He was also convicted under section 323 of the Indian Penal Code and sentenced to simple imprisonment for two months. 2. Broadly stated the prosecution case was that when the prosecutrix had gone outside her house to urinate at about 9.30 night on 30th January 2000, the appellant who was residing in the neighbourhood caught hold of her, pushed her down and forcibly had intercourse with her. While he was doing so, husband of the prosecutrix came out of her house and took his wife inside the house. 3. The prosecutrix was examined at Ex.12. She stated that she had gone to urinate at night in the vada outside her house. The appellant, at that time, was sitting in his own vada. The appellant pushed her to the ground, removed her petticoat and tore her blouse and threw it away and started having intercourse with her. At that time, she started shouting. Upon hearing her shouts, her husband came out and pulled the appellant from top of her. The appellant thereupon ran away. In the cross-examination, the witness agreed that her sister-in-law and wife of the appellant had fought Panchayat elections against each other and her CR.A/818/2004 3/8 JUDGMENT sister-in-law had lost the election. She admitted that her own house was only 7 to 8 feet away from the spot where the incident took place. She had admitted that when the appellant stood up to remove his own cloth, she had started shouting very loudly. At that time, when the appellant pushed her legs also, she had shouted. First time when she was pushed to the ground, she had shouted. She, however, thereafter stated that between first time that the appellant caught her and she shouted, there was a time gap of half an hour. She admitted that at the time when the incident took place, her husband was inside the house. She admitted that when the appellant had committed rape on her, nobody from the neighbourhood had come there. She admitted that right next to her house, there are houses of Govind Kala and that of the appellant as also that of Javer Moti. She admitted that at the time when the incident had taken place, Govind Magan, Hira Magan, Narain Magan, etc. were residing in their houses. The houses were close to each other that if there is any commotion, everybody would hear the same. In the cross-examination, she further admitted that when her husband came to the spot, he had slapped her. After taking her inside the house also, she was beaten up by her husband. She in fact admitted that on account of such beating, she had received multiple injuries on her body. She stated that the appellant committed rape for about 10 to 15 minutes. 4. Husband of the prosecutrix, Rasikbhai, PW-3 CR.A/818/2004 4/8 JUDGMENT was examined at Ex.14. He stated that the incident took place at about 9.00 to 9.15 at night. He heard his wife shouting and came out of the house where he was sleeping. He saw that the appellant was lying on top of his wife. He had taken his wife inside the house. In the cross-examination, he admitted that on the night of the incident, he and his wife were sleeping in the same room. He knew that his wife had gone out to urinate. He admitted that the appellant and wife of the witness were near the house of the appellant when he was having intercourse with her. He admitted that even after hearing the shouts, no one else had come out. He denied that he had slapped his wife or beaten her up after they went inside the house. He agreed that normally his wife would return in a couple of minutes after easing herself. He stated that there was a gap of 2-3 minutes between his wife going out of the house and shouting. 5. Dr.Amarnath Gupta, PW-1 was examined at Ex.9. He had examined the prosecutrix on 2nd February 2000 when she was brought to him along with the police yadi. He had found multiple injuries on the body of the lady such as scratch marks on the left cheek, bruise on the right ear, scratch mark on the back, abrasion on the stomach, abrasion on the left hand, blood clotting on the right wrist and right hand and abrasion on the left knee. He however, had not spotted any injury on the private CR.A/818/2004 5/8 JUDGMENT parts of the lady. 6. Dr.Minesh Shah, PW-11, was examined at Ex.29. He had examined the appellant on 3rd February 2000. He was of the opinion that on the body of the appellant there was no signs of any resistance put up by the lady. He had not noticed any injury, however, superficial on the body of the appellant. 7. It may be noted that most of the panch witnesses had turned hostile and not supported the prosecution. However, what is significant is the deposition of the prosecutrix, PW-2 and her husband, PW-3. 8. I find that there are large number of contradictions between the two versions and such contradictions are significant. The prosecutrix had stated that the incident had taken place inside the vada of her house and the spot was only 7 to 8 feet away from her house. On the other hand, her husband stated that the prosecutrix and the appellant were found near the house of the appellant where the incident had taken place. The prosecutrix had also stated that she started shouting immediately upon being pushed to the ground. She had intimidated given somewhat a different version that between the time first the appellant catching her and she starting to shout, there was a time gap of about half-an-hour. On the other hand, her husband stated that under normal circumstances, she would return within a CR.A/818/2004 6/8 JUDGMENT couple of minutes after urinating and he heard her shouts within minutes of leaving the house. This is in stark contrast to the version of the prosecutrix. 9. Both the witnesses agreed that there were large number of other houses in the neighbourhood and the prosecutrix agreed that any shouts could be heard by other neighbours also. Though this was not agreed to by the husband of the prosecutrix, they both agreed that at the time of the incident, none of the neighbours had come out to see what was happening. The prosecutrix had stated that she was slapped by her husband outside the house and after going inside the house also she was severely beaten up which resulted into several injuries on her body. Her husband, however, denied this version of his wife. 10. It may also be noted that though PW-1 Dr.Amarnath had spotted several injuries all over the body of the prosecutrix, there were no injuries whatsoever on her private parts nor Dr.Shah PW-11, noticed any injuries on the entire body of the appellant. The question is, whether the appellant had used force to subdue the prosecutrix and whether the entire story as was being narrated by the prosecutrix and her husband is believable. I find large number of improbabilities in the version put forth by the two witnesses. As noted, the incident as per the prosecutrix CR.A/818/2004 7/8 JUDGMENT took place barely 7 to 8 feet away from her house. Her husband admitted that they were sleeping inside the same room before the incident. He was aware that his wife had gone out to answer the call of nature. She would normally return within a couple of minutes. The prosecutrix stated that immediately upon being pushed to the ground, she had started shouting. She thereafter, shouted about half-an-hour later. In between, as per the version of the prosecutrix, the appellant removed his own clothes, her clothes and also forcibly had intercourse with her for about 15 minutes. All this while, husband of the prosecutrix apparently never came out of the house. When he came out of the house, as per prosecutrix, he slapped her and took her inside the house and again beaten her up severely resulting into multiple injuries on her body. He in fact, stated that he found the appellant as well as prosecutrix near the house of the appellant. This is the most significant of the entire matter. As per the prosecutrix, the incident took place in her own vada barely 7 to 8 feet away from her house. As per her husband, he found the prosecutrix and the appellant near the house of the appellant. This coupled with the fact that the wife had complained that she was beaten up by her husband which the husband flatly denied as also coupled with the fact that neither of the two doctors who examined the prosecutrix and the appellant found any injuries on the private parts of both the persons and no CR.A/818/2004 8/8 JUDGMENT injuries whatsoever, however, superficial were noticed on the body of the appellant, convinces me that the conviction of the appellant was wholly unjustified. 11. I find that there are significant and material contradictions in the version put forth by the prosecutrix and her husband. This is coupled with the election rivalry between the two families would raise serious doubt about the version of the prosecution and implication of the appellant cannot be ruled out. I have no hesitation in holding that the appellant cannot be convicted under such circumstances and on the basis of the evidence led by the prosecution. 12. In the result, the appeal is allowed. The conviction and sentence of the appellant is set aside. The appellant be released forthwith if not required in any other criminal case. Fine if paid may be refunded. (Akil Kureshi, J.) (vjn)