CR.A/113/2005 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 113 of 2005 with CRIMINAL APPEAL No. 1323 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= SHANTIBHAI DHANAJI BHAGORA - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : MR HR PRAJAPATI for Appellant. MR KC SHAH, ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 22/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/113/2005 2/16 JUDGMENT The present appeals arise out of the judgment and order rendered by the Sessions Court, Sabarkantha at Himatnagar, in Sessions Case No. 154/2004, on 31.12.2004, whereby the appellant in Criminal Appeal No.113/2005 was convicted for an offence punishable under Section 376 of the Indian Penal Code and was ordered to undergo R.I for three years and to pay a fine of Rs.1000/-, in default, to undergo imprisonment for a period of two months. Criminal Appeal No. 113/2005 is preferred by the original accused challenging his conviction. Criminal Appeal No. 1323/2006 is preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure, praying for enhancement of sentence awarded by the trial Court. Since these two appeals arise from the same judgment and order, they are heard together and are decided by this common judgment. 2. The facts of the case, in brief, are that Jumiben, wife of Shakaraji Lalaji lodged an FIR before Vijaynagar Police Station on 26.5.2003, CR.A/113/2005 3/16 JUDGMENT alleging that while she and her husband were returning home after attending a marriage, present accused Shantibhai Dhanaji Bhagora intercepted them and asked her to go with him, which she denied. He, therefore, started pulling her by catching her hand and when her husband objected to it, the accused gave him a kick blow, as a result of which, her husband fell down. At that time, the accused asked her husband to go away, or he would be done to death. Her husband, therefore, went away. The accused thereafter dragged her to a narrow lane in the field and committed rape on her against her will. On the basis of that FIR, offence was registered and investigated, and ultimately, the charge sheet was filed in the Court of learned J.M.F.C. Khedbrahma, who, in turn, committed the case to the Court of Sessions and Sessions Case No.154/2004 came to be registered. 3. The charge was framed against the accused person at Exh.5, to which, he pleaded not guilty and claimed to be tried. The trial Court, after recording the evidence, came to the conclusion that considering the evidence led by the prosecution, the charge against CR.A/113/2005 4/16 JUDGMENT the appellant was proved and, therefore, recorded conviction and sentenced him, as stated hereinabove. 4. Aggrieved by the conviction and sentence, the accused has preferred Criminal Appeal No. 113/2005. The State has preferred Criminal Appeal No.1323/2006 for enhancement of sentence on the ground that the sentence awarded by the trial Court is less than the minimum prescribed by law. 5. We have heard learned advocate Mr.H.R.Prajapati for the appellant-accused, and learned A.P.P. Mr.K.C.Shah for the State. 6. Learned advocate Mr.Prajapati submitted that if the evidence of the prosecutrix is seen, it is not corroborated by the medical evidence and her version about the incident is highly improbable. Her version does not get any support to make it credible, though improbable. These aspects have been lost sight of by the trial Court. Mr. Prajapati submitted that according to the prosecutrix, the incident occurred when she was returning with her husband after attending a marriage. She gives different versions as CR.A/113/2005 5/16 JUDGMENT to how the incident occurred. At one stage, she says that they were chased by a crowd of about 15 to 20 persons armed with deadly weapons, like dharia. She then says that she was chased by the accused, whereas at another stage, she says that the accused intercepted them and drove away her husband after intimidating him and thereafter committed rape on her. She admits that house of her sister-in-law is nearby. Even her house is also nearby, but, she did not raise any shouts for help. She has admitted in her cross-examination that after the incident, she and the accused sat at the place for long time and thereafter she went home. At one stage, she says that she went to the house of her sister-in-law, whereas at another stage, she says that she went to her home straightaway. The medical evidence reveals that the prosecutrix is well-built and that there were no marks of injuries or violence on her person. Mr.Prajapati submitted, therefore, that it is highly improbable that a man would commit rape in the presence of about 15 persons armed with dharias. It is also highly improbable that a lady would not suffer any marks of injury if she was forced to enter CR.A/113/2005 6/16 JUDGMENT into intercourse on the ground in the field after removing her clothes, particularly when she is well- built. He submitted that it was claimed that the accused was sent for medical examination and there were no marks of injury and was not able to provide sample of semen. Mr. Prajapati submitted that when the case is dependent on the solitary evidence of the prosecutrix, the Court may look for some material to lend credence to the evidence of the prosecutrix, when her version is inconsistent and improbable, at least for providing a strong corroboration. Mr.Prajapati, therefore, submitted that the convict's appeal may be allowed and his conviction may be set aside, and the appeal preferred by the State for enhancement of sentence may be dismissed. 7. Learned A.P.P. Mr. Shah, on the other hand, has opposed the appeal against conviction. According to him, there is no need for corroboration to the evidence of the prosecutrix. The prosecutrix has, in terms, implicated the convict-appellant. The conviction is, therefore, well-founded and the same may be upheld. CR.A/113/2005 7/16 JUDGMENT 7.1 Learned A.P.P. submitted that the trial Court has sentenced the accused-convict appellant to undergo R.I. for a period of three years, which is less than the minimum prescribed by Section 376 IPC, and no mitigating circumstances are indicated. Under the circumstances, the appeal filed by the State for enhancement of sentence may be allowed and appropriate punishment be awarded to the convict. 8. We have considered the record and proceedings in light of the submissions made before us by both the sides. The prosecutrix is examined at Exh.20. She is married to Shakarabhai and has three children out of their wedlock. Her father stays at village Adepur, whereas she stays at village Bhabhudi. She says that on the day of the incident, they had gone to attend the marriage of Lilaben, daughter of her uncle Kanaji. They had started back for home around 5.00 p.m. She says that in the sim of village Adepur, the accused ran after her. He ran after her husband with a view to beat him. Her husband, therefore, went away and the accused took her to a narrow lane in the field and committed rape on her after removing her CR.A/113/2005 8/16 JUDGMENT petticoat and underwear. This happened at about 8.00 p.m. She says that after the incident, she went to the house of her sister-in-law Shantiben. She went there crying and informed Shantiben about the incident as well as to her husband, but, none-else. She says that earlier also, Shantilal had threatened her of rape. She says that she went to Vijaynagar Police Station and lodged the FIR Exh.21. Thereafter she was taken to Vijaynagar Government Hospital and then to Bhiloda Government Hospital, where she was examined. She identified her petticoat and underwear, which she claimed to have been wearing at the time of the incident. During her cross-examination, she says that by the time they left for home after attending the marriage ceremony, it was dark. She denies the suggestion that it was so dark that other persons cannot be identified. She admits that while they were coming, a crowd of about 15 to 20 persons came there and they were all armed with weapons. She says that she is unable to say as to who were those 15 to 20 persons, because she could not identify them due to darkness. The persons were armed with dharias, sticks etc. They all came running and shouting. Therefore, CR.A/113/2005 9/16 JUDGMENT she and her husband both started running. She says that she fell down while running and had suffered injury. She says that her clothes were also torn and she had told about it to her husband. She admits that she and the accused sat together for about half an hour. She says that the incident lasted for about an hour. She also admits that there are houses near the narrow lane, where the incident occurred. The house of her sister-in-law is at a distance of about 2-3 minutes' walk and that if a shout is raised, the same can be heard at her sister-in-law's house. She says that when the mob came with weapons, she and her husband had raised shouts and both of them escaped in different directions. She states that after the incident, the accused dressed her with clothes and thereafter they sat together for about half an hour and thereafter she went to her home. She says that her husband came after about an hour after her reaching home. She admits that, earlier, son of Shantilal had lodged a complaint against her husband and her brother-in-law about beating and intimidation. CR.A/113/2005 10/16 JUDGMENT 9. The medical evidence is in the form of deposition of Dr.Dilipkumar Bachubhai Ninama, recorded at Exh.9, who had examined her on 27.5.2003 at the Community Health Centre, Vijaynagar, where he was working as Medical Officer. He says that the prosecutrix gave history to the effect that when she and her husband were coming home, a mob of about 15 persons ran after them, caught her, whereafter her husband went away and thereafter Shantilal Dhanaji Bhagora i.e., the accused raped her. She says that her hands were caught by another person at that time. The doctor says that the prosecutrix was well-built and healthy. There were no marks on her person or clothes. There were no injuries on any part of her person. The doctor says that he had also examined the accused on 18.6.2003 at about 4.30 p.m., and found no marks of any injury. He could not give sample of semen, as he was not competent to do so. However, the doctor opined that the appellant was capable of intercourse. The medical certificate of the prosecutrix is at Exh.11, which indicates the same thing. CR.A/113/2005 11/16 JUDGMENT 9.1 Dr.Gloriyaben Vikrambhai Pandor is examined at Exh.14. She was Medical Officer at Bhiloda Government Hospital. She says that she examined the prosecutrix on 28.5.2003 and she gave history that Shantilal Dhanji Bhagora committed intercourse with her against her will on 25.5.2003 at about 8.00 p.m. The doctor says that she was well-built and healthy and there were no marks of any external injury on her person. The medical certificate issued by her in respect of the prosecutrix is at Exh.16 and the case papers are at Exh.17, which also contain the history of rape by Shantilal Dhanji. 9.2 Dr.Sumanbhai Parmar is examined at Exh.18. He was working as Medical Officer, Cottage Hospital, Bhiloda. He also says that he had examined the prosecutrix on 28.5.2003 at about 12.30 p.m., and he found no injury on any part of her person. 10. What emerges from the above evidence is that the prosecutrix comes with different stories at different times. She is consistent only on one aspect that she and her husband were returning after attending marriage. At one stage, she says that she was CR.A/113/2005 12/16 JUDGMENT intercepted by the accused. At another stage, she says that a mob ran after them and they escaped in different directions, whereafter the accused caught hold of her and committed rape on her. Still, at another stage, she says that the mob ran after her husband and then the accused caught her and committed rape on her. 10.1 According to the prosecutrix, rape was committed in a narrow lane in the field, where she was made to lie on the ground, her petticoat and underwear were removed and rape was committed on her. Against this, we do not find any mark of any injury, either because of the act or because of any resistance that she may have offered instinctively. We find that she is a well-built lady and if an attempt is made to rape, obviously, she would offer instinctive resistance as a reflex action and there are bound to be some imprints of such resistance, either on her person or on person of the accused or at the place of incident, but, we find none. 10.2 Apart from the above aspects, her version that there was a mob of about 15 to 20 persons when CR.A/113/2005 13/16 JUDGMENT the incident occurred, renders the incident quite improbable. Ordinarily, no such incident could have taken place in presence of 15 to 20 persons. More so, when we find that even in the hospital, when sample of semen of the accused was sought to be collected, the medical case papers indicate that he was unable to masturbate to produce it. 11. The lady is inconsistent about her actions after the alleged incident. At one stage she says that she went to the house of her sister-in-law and told about the incident. At the other stage, she says that she went to her home straightaway. Her sister- in-law is not examined. 11.1 It is also an admitted position that the place of incident is hardly at a distance of two minutes' walk from the house of her sister-in-law and that if shouts are raised, the same can be heard there. She says that she and her husband had raised shouts when the crowd came, but, nobody appears to have come. 11.2 Admittedly, the incident occurred in a dark CR.A/113/2005 14/16 JUDGMENT night at about 8.00 p.m. The prosecutrix admits that it was dark. She, however, denies that it was so dark that persons cannot be identified, but, soon after she admits that she could not identify any of the persons of the mob of 15 to 20 persons. 11.3 Last, but not the least, it may be noted that the conduct of the prosecutrix is very strange. She says that the incident lasted for about an hour. She says that her petticoat and underwear were removed by the accused. She then says that after the incident, she was dressed up by the accused and then she admits that they sat together for about half an hour at the very same place and then she went. Interestingly, though she claims to have been raped, she never states to have offered any resistance, nor does she give any reasons for the non-resistance. 12. All the above factors, in our view, render the evidence of the prosecutrix so vulnerable that it would be risky to confirm the conviction on the basis of the evidence of the prosecutrix alone, without looking for a material by way of corroboration to lend credence to the improbable and inconsistent CR.A/113/2005 15/16 JUDGMENT version given by the prosecutrix. We are, therefore, of the view that the conviction recorded by the trial Court cannot be confirmed. The appeal preferred by the convict deserves to be allowed. We may also record that the convict has already undergone the sentence and has been released from the prison on 21.5.2007, after serving the sentence. 13. For the foregoing reasons, Criminal Appeal No. 113/2005, preferred by the convict, is allowed. The conviction and sentence imposed by the learned Additional Sessions Judge, 3rd Fast Track Court, Himatnagar, District : Sabarkantha, in Sessions Case No.154/2004, on 31.12.2004 is hereby set aside. 13.1 In view of the fact that the appeal preferred by the convict is allowed and his conviction is set aside, Criminal Appeal No.1323/2006 filed by the State for enhancement of sentence, must fail and stands dismissed. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] CR.A/113/2005 16/16 JUDGMENT (patel)