CR.A/993/2002 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 993 of 2002 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 ? ========================================================= SHANKAR @ SHAKABHAI MAGANBHAI RAVAL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS NITA C BANKER, 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 : 14/02/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/993/2002 2/39 JUDGMENT 1. A five years old female child was kidnapped from the lawful guardian and thereafter was subjected to sexual abuse by the appellant, Shankar alias Shakabhai Maganbhai Raval, ('the accused' for short). The accused was, therefore, charged and tried by the learned Additional Sessions Judge, 3rd Fast Track Court, Surat, in Sessions Case No. 100 of 2001 for commission of the offences punishable under Sections 363, 366, 376 and 323 of the Indian Penal Code ('IPC' for short). 2. At the end of the trial, the accused was found guilty of the offences with which he was charged and resultantly he was convicted vide judgment and order dated 24.10.2002 and sentenced to suffer R.I. for 12 years and fine of Rs.5,000/- and in default of payment of fine, S.I. for further period of one year for commission of the offence punishable under Section 376 (2) (f) IPC, R.I. for seven years and fine of Rs.5,000/- and in default of payment of fine, S.I. for further period of one year for CR.A/993/2002 3/39 JUDGMENT commission of offence punishable under Section 363 IPC and S.I. for six months and fine of Rs.500/- and in default of payment of fine, S.I. for further period of one month for commission of the offence punishable under Section 323 IPC whereas no separate sentence is imposed on the accused for commission of the offence punishable under Section 366 IPC. It is also ordered that all the substantive sentences shall run concurrently. It is also clarified that if the amount of fine is not paid by the accused, the sentence of simple imprisonment imposed on the accused shall start running after the main sentence is over. 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 is that: 4.1. On 20.12.2000, P.W.1, Gagabhai Sedhabhai CR.A/993/2002 4/39 JUDGMENT Raval, the complainant, Ex.9, lodged a complaint with Rander Police Station, Surat City, inter alia, alleging that he is staying with his family and is doing the occupation of animal husbandry. The prosecutrix-victim is his second daughter who was aged about five years at the relevant time. The said minor girl, prosecutrix, is hereinafter referred to as 'X' in this judgment. The complainant has given details about his family members in the complaint but to see that the purpose for which we refer the prosecutrix as 'X' in this judgment, for the very same purpose, we are not discussing about the details with regard to the family members of the complainant. His cousin brother, the accused, was residing with him for the last seven months and was doing the animal husbandry at his residence. He was engaged for the said work for a fixed salary of Rs.10,000/- per year. He stayed with the complainant and also took food at the place of the complainant. 4.2. On 19.12.2000, on completion of the work CR.A/993/2002 5/39 JUDGMENT of animal husbandry, the complainant was sitting in his house at about 8 P.M., after taking dinner. At about 9.30 P.M. the accused brought a cycle and took the five years old daughter of the complainant - X on cycle saying that they will come back after buying cassette. Thereafter the complainant waited for the accused and X till late night but they did not come back. Upon searching them everywhere they were not seen. Thereafter the complainant and his friend Ganeshbhai went to search them in the night with Mansukhbhai. During that period at about 11.15 in the night, the accused was found coming with X on the road between Hidayatnagar and Deepmala society. Upon seeing them, the accused kept X on the ground and threw the cycle and ran away. At that time X was unconscious and they found bite marks on both of her cheeks and neck. He immediately brought X to his house. X started crying in the late night. He and his wife asked her as to why she was crying and at that time she replied to be suffering from pain on the under part and thereby shown urinal part by sign. CR.A/993/2002 6/39 JUDGMENT Upon removing her clothes when he and his wife saw her private part, it was fully blooded and neck and cheeks were injured. Therefore, when he asked X as to what had happened she stated in her words that the accused took her on cycle forcefully saying that they were going to buy cassette though she did not want to go and he took her to the canal on the cycle and dropped her there from the cycle and made her sit on the ground and removed her underwear and gave her bites on cheeks. He pressed her mouth and slept upon her. Showing urinal part she stated to be suffering from pain. His daughter had gone unconscious. Upon searching the accused he was not found. As it was late night, he could not lodge the complaint on 19.12.2000 and he lodged the complaint the next day i.e., 20.12.2000 and he had also taken his daughter with him to the police station. Therefore, it is alleged in the complaint that the accused has by taking his five year old daughter to the Palanpur Canal on cycle from his house saying that they were going to buy cassette, committed rape on X forcefully in the CR.A/993/2002 7/39 JUDGMENT darkness and thereby caused her private part fully blooded and gave bites on both cheeks and neck and then ran away. 4.3. The complaint for the aforesaid incident was lodged by the complainant before P.W.14, Dinubhai Viriyabhai Gamit, Ex.43, who, at the relevant time, was working as Police Sub Inspector at Rander Police Station, reduced it into writing and also read over to the complainant and thereafter beneath the complaint, thumb impression of the complainant was obtained. The complaint is produced at Ex.10. 4.4. On the basis of the complaint, P.W.14, Dinubhai Viriyabhai Gamit, Ex.44, registered the offence vide CR No.I-303/2000 at Rander Police Station for commission of the offences punishable under Sections 363, 366, 376 and 323 IPC against the accused and thereafter the investigation was handed over to S.A. Desai, PSI. 4.5. Pursuant to the registration of the CR.A/993/2002 8/39 JUDGMENT complaint, the investigation was put into motion by P.W.13, S.A. Desai, P.I. Ex.32. He recorded the statement of prosecutrix 'X' and thereafter sent her to Civil Hospital, for medical check up. He also recorded the statements of the witnesses. He prepared the panchnama of the person of the accused on being found and made arrest panchnama also of the accused. The accused also produced the muddamal cycle which was used for commission of the offence and it was recovered in presence of the panchas by drawing a panchnama. Clothes of victim X were also recovered in presence of panchas after drawing a panchnama and the panchnama of the scene of offence was drawn and the blood stained mud as well as control mud was collected under panchnama. The accused was also sent for medical check up to Civil Hospital, Surat. Thereafter all the muddamal recovered during the course of investigation were sent to FSL for chemical analysis and serological report. On receipt of the medical report of the accused and also of X and also the report from FSL, sufficient incriminating evidence was found CR.A/993/2002 9/39 JUDGMENT against the accused. He, therefore, filed charges-sheet against the accused in the Court of the learned Chief Judicial Magistrate, Surat for commission of the offences punishable under sections 363, 366, 376 and 323 IPC. 4.6. As the offence under section 376 IPC is exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, Surat committed the case to the Sessions Court, Surat. 4.7. The learned Additional Sessions Judge, 3rd Fast Track Court, Surat to whom the case was made over for trial, framed charge against the accused for commission of the offences punishable under Sections 363, 366, 376 and 323 IPC. The charge was read over and explained to the accused. As the accused pleaded not guilty to the charge and claimed to be tried, he was put to trial and tried by the learned Additional Sessions Judge, 3rd Fast Track Court, Surat in Sessions case No. 100 of 2001. CR.A/993/2002 10/39 JUDGMENT 4.8. In order to bring home the charge levelled against the accused, the prosecution has examined in all 15 witnesses and relied upon their oral testimonies, details of which have been given in paragraph 3 of the impugned judgment and order. They are as under: P.W. No. Name Ex. No. Page No. 1 Gagabhai Sedhabhai Raval, complainant 9 33 2 X, the prosecutrix 11 40 3 Jerambhai Karansinhbhai Rabari, Panch 12 43 4 Babubhai Bhurabhai Desai, Panch 14 49 5 Madhuben Gagabhai Rabari, mother of the prosecutrix 15 51 6 Ganeshbhai Nathabhai Rabari 16 54 7 Amarbhai Vihabhai, Panch 17 56 8 Mansukhbhai Devjibhai 19 60 9 Panchabhai Haribhai Rabari, Panch 20 62 10 Babubhai Keelabhai 22 66 11 Jerambhai Karamsinhbhai Rabari, Panch 23 68 12 Dr. Shruti Jitendra Manchanda 27 73 13 Sundarbhai Ambalal Desai, P.I. Investigating Officer 32 86 14 Dinubhai Viriyabhai Gamit, Investigating Officer 43 106 CR.A/993/2002 11/39 JUDGMENT P.W. No. Name Ex. No. Page No. 15 Dr. Balubhai Ravjibhai Panchani 44 108 4.9. To prove the culpability of the accused, the prosecution has also produced and relied upon the contends of the following documents, as mentioned in para 4 of the impugned judgment and order: Sr. No. Particulars Ex. No. Page No. 1 Complaint 10 37 2 Panchnama of scene of offence 13 46 3 Panchnama of recovery of the clothes of the prosecutrix 18 58 4 Panchnama of the recovery of the cycle used by the accused 21 64 5 Panchnama in respect of the physical condition and arrest of the accused 24 70 6 Medical Certificate of prosecutrix 28 78 7 Medical case papers in respect of the prosecutrix 29 80 8 Forwarding letter to FSL 37 93 9 Acknowledgment issued by FSL 38 97 10 FSL report 39 98 11 Serological report 40 104 CR.A/993/2002 12/39 JUDGMENT Sr. No. Particulars Ex. No. Page No. 12 Medical certificate in respect of the accused 46 112 4.10. 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 as required under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution by saying that he is innocent and he has not committed any offence. He has further stated that in connection with the money transaction between the complainant and the accused, the complainant has falsely implicated him in the rape case. However, he has not led any evidence nor did he examine any witness in support of his defence. 4.11. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the CR.A/993/2002 13/39 JUDGMENT prosecution, the trial court came to the conclusion that the accused has kidnapped X who was aged about 5 years at the relevant time, from lawful custody of her father without his consent with an oblique motive to commit rape on her. It is also held that with a view to commit sexual intercourse with X, the accused had given biting on both the cheeks of X and also tried to throttle her and caused injuries to her and committed sexual intercourse with her. According to the trial court, the complicity of the accused for commission of the offence punishable under section 376 (2) (f) has been proved. The accused was also found guilty for commission of the offences punishable under sections 363, 366 and 323 IPC. On finding the accused guilty for commission of the said offences, the trial court sentenced the accused to suffer imprisonment to which reference is made in earlier paragraph of this judgment, giving rise to instant appeal at the instance of the accused. 5. Ms. Nita Banker, learned advocate appointed CR.A/993/2002 14/39 JUDGMENT by Legal Aid Committee for the accused, has contended that the defence of the accused was that he is quite innocent and he has been falsely implicated in the rape case in connection with the dispute of money transaction he had with the complainant, with whom he was serving. She has also contended that the accused and the complainant are cousin and accused was staying with the complainant and serving with him and, therefore, it cannot be believed that such a heinous act can be committed by the accused. The trial court has not considered the said defence. Therefore, according to her, the trial court has committed a serious error in not appreciating the evidence on record in its true perspective. It is also emphasized by her that so far as evidence of X, a minor girl aged about 5 years, is concerned, she has given totally contrary version in the examination-in-chief and in her cross- examination. In cross-examination she has in unequivocal terms stated that the accused has committed no offence nor the accused has committed successful intercourse with her and, CR.A/993/2002 15/39 JUDGMENT therefore, there is no reason to disbelieve the version of the victim herself. 5.1. Alternatively she has also submitted that if at all the story narrated by the complainant is believed in that case, at the most, the accused can be convicted for the offence of an attempt to commit rape because rape was not completed as there was no penetration at all and, therefore, in that case, the gravity of the offence would be very less and at the most the accused can be convicted for the offence under section 376 (2) (f) read with Section 511 IPC and in that case, the maximum sentence would be one- half of the longest term of imprisonment provided for that offence and for the offence under section 376 (2) (f) the maximums sentence provided is imprisonment for life or imprisonment for not less than 10 years. 'Life imprisonment', as per Section 433A of the Code, means, imprisonment not less than a period of 14 years. The trial court has awarded sentence of R.I. for 12 years and the accused has already CR.A/993/2002 16/39 JUDGMENT undergone imprisonment for more than six years as per the jail record produced by Mr. K.T. Dave, learned A.P.P. She, therefore, submitted that the impugned judgment and order may be suitably altered by convicting the accused under section 376 (2) (f) read with section 511 IPC and the period of imprisonment already undergone by the accused, which is more than six years, may be treated as substantive sentence and the accused may be set at liberty. It is also urged by her that so far as conviction recorded against the accused for commission of the offences under Sections 363 and 323 IPC is concerned, the same may be upheld. However, the sentence of RI for seven years for commission of the offence under Section 363 IPC may also be reduced to the period of imprisonment undergone by the accused. Therefore, she urged to allow the appeal to the aforesaid extent. 6. Per contra, Mr. KT Dave, learned Addl.P.P. for the respondent – State of Gujarat, has contended that there is reliable, clinching and CR.A/993/2002 17/39 JUDGMENT trustworthy evidence on record to prove that the accused has committed rape on X who was aged about 5 years at the relevant time. Considering the age of the prosecutrix, slight variation in her version in the examination-in-chief and in cross-examination is not of any significance. Moreover, before the medical officer who examined X and FSL report and also the extra judicial confession of the accused before the medical officer who examined him, are clinching evidence and they are sufficient enough to come to the conclusion that the accused has committed rape upon X and, therefore, the prosecution has proved the charge levelled against the accused beyond reasonable doubt. Looking to the relation between the accused and the complainant, no mercy can be shown towards the accused even by reducing the sentence imposed on the accused. According to him, the appeal is devoid of any merit and deserves to be dismissed. He, therefore, urged to dismiss the appeal. 7. This court has considered the submissions CR.A/993/2002 18/39 JUDGMENT 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. 8. The charge against the accused is that on 19.12.2000, at about 9.30 P.M. the accused brought a cycle and took the five years old daughter of the complainant - X on cycle saying that they will come back after buying cassettes. CR.A/993/2002 19/39 JUDGMENT Thereafter the accused took the victim X to the big canal and raped her. During the course of committing rape, he also inflicted injuries to the victim on her both cheeks by biting and in her neck by finger nails. 9. To prove the charge levelled against the accused, the prosecution has examined and relied upon the oral testimony of P.W.1, Gagabhai Sedhabhai Raval, the complainant, Ex.9, page 33 of the paper book. He has inter alia testified that on 19.12.2000, he was sitting at his house after taking dinner at about 8 P.M., on completion of work behind the animals. During that period at about 9.30 P.M. the accused brought a cycle and took his five years old daughter X on cycle saying that they will come back after buying cassettes. Thereafter he waited for the accused and X till late night but they did not come back. Upon searching them everywhere they were not seen. Thereafter he and his friend Ganeshbhai went to search them in the CR.A/993/2002 20/39 JUDGMENT night with Mansukhbhai. During that period at about 11.15 in the night, the accused was found coming with X on the road between Hidayatnagar and Deepmala society. Upon seeing them, the accused kept X on the ground and threw the cycle and ran away. At that time X was unconscious and they found bite marks on her both cheeks and neck. He immediately brought X to his house. X started crying in the late night. He and his wife asked her as to why she was crying and at that time she replied to be suffering from pain on the under part and thereby shown urinal part by sign. Upon removing her clothes when he and his wife saw her private part, it was fully blooded and neck and cheeks were injured. Therefore, when he asked X as to what had happened and she stated in her words that the accused took her on cycle forcefully saying that they were going to buy cassettes though she did not want to go and he took her to the canal on the cycle and dropped her there from the cycle and made her sit on the ground and removed her underwear and gave her bites on cheeks. He pressed her mouth and slept CR.A/993/2002 21/39 JUDGMENT upon her. Upon showing urinal part she stated to be suffering from pain. His daughter had gone unconscious. His daughter has stated that the accused had, after removing her undergarments, slept over her. 9.1. In cross-examination made by the learned advocate for the accused, he has admitted that the accused is his maternal cousin and he was staying in his house for the last seven months and was doing labour work. He repelled the suggestion that the accused was not knowing cycling and at the time of the incident he was learning cycling. He also repelled the suggestion that he has not paid salary of Rs.10,000/- for the last one year to the accused and also repelled the suggestion that he was not ready to pay the said amount and the accused has been roped in a false case by him. In sum and substance, he withstood the test of cross- examination. 9.2. On reappraisal of the evidence of P.W.1, CR.A/993/2002 22/39 JUDGMENT Gagabhai Sedhabhai Raval, according to us, so far as the alleged incident is concerned, there cannot be any dispute. There is no dispute that X was kidnapped by the accused on bicycle, from the lawful guardian of her father. 10. The prosecution thereafter has examined and relied upon the evidence of P.W.2, the prosecutrix X, Ex.11, page 40 of the paper book. It may be noted that she was aged about 6 years at the time of recording her oral testimony and, therefore, the trial court ascertained whether she understands the sanctity of oath and after satisfying that she understands the sanctity of oath, she was given oath and recorded her oral testimony. She has inter alia testified that the accused is her uncle and the accused had taken her on his cycle near the big canal by saying that they are going to take cassette. She refused to accompany him but the accused took her on his cycle. Thereafter he removed her undergarments and gave biting on both her cheeks and also tried to throttle her. She has also CR.A/993/2002 23/39 JUDGMENT stated that after removing the undergarments, the accused slept on her. Thereafter her father came to take her home. From the big canal to tolnaka she came on the cycle of the accused. She also stated that she has pain on vaginal part. She has also informed the said incident to her father and mother. She has also stated that police has recorded her statement. In her cross-examination by the learned advocate for the accused, she has repelled the suggestion with regard to the dispute regarding the salary between the accused and her father. It is pertinent to note that she has admitted that she was deposing as tutored by her father that her uncle slept on her. She has also admitted that the incident has not taken place. 10.1. At this stage, it may be mentioned that Ms. Banker, learned advocate for the accused, has tried to take advantage of the last two lines of the cross-examination of this witness X but it is not out of place to mention that the victim X was only 6 years old at the CR.A/993/2002 24/39 JUDGMENT time of recording her oral testimony and, therefore, during cross-examination she might have stated