CR.A/252/2001 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 252 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 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 ? ========================================= DHANANJAY UMESHBHAI SHARMA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MP SHAH for Appellant(s) : 1, MR KP RAVAL, LD.APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 30/08/2006 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. By way of filing present appeal, the appellant-orig.accused Dhananjay Umeshbhai CR.A/252/2001 2/45 JUDGMENT Sharma (hereinafter referred to as 'the accused') has challenged the judgment and order of conviction and sentence dated 12th December, 2000, passed by the learned Additional Sessions Judge, Surat in Sessions Case No.269 of 1999. At present the accused is undergoing sentence of imprisonment imposed by the learned trial Judge for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The accused is ordered to undergo rigorous imprisonment for three years for the offence punishable under Section 363 of the Indian Penal Code and a fine of Rs.500/-; and in default of payment of fine, he is ordered to undergo imprisonment for one more month; for the offence punishable under Section 366 of the Indian Penal Code, he is ordered to undergo rigorous imprisonment for same period i.e. for three years and a fine of Rs.1000/-, and in default to undergo imprisonment for two more months; and for the offence punishable under Section 376 of the Indian Penal Code, he is ordered to undergo rigorous imprisonment for 10 years and a fine of Rs.2000/-, and in default to undergo CR.A/252/2001 3/45 JUDGMENT imprisonment for three more months. As the substantive sentence is ordered to run concurrently under the scheme of Section 427 of the Code of Criminal Procedure, 1973, the maximum period of punishment can be said to be rigorous imprisonment for 10 years. 2. The judgment and order of conviction and sentence is assailed on various grounds mentioned in paragraph no.5 of the memo of appeal and it is contended that the conviction of the accused is illegal and bad in law. The finding recorded by the learned trial Judge is based on improper or illegal interpretation of evidence and the learned trial Judge ought not to have convicted the accused for the charges levelled against him. To appreciate the say of the accused placed before us and the resistance placed by the respondent-State, it would be appropriate for us to state the following facts placed by the prosecution in brief : (i) It is alleged that in the ghastly offending act, one minor girl aged about 2 years has been raped by the CR.A/252/2001 4/45 JUDGMENT accused-Dhananjay on 16th May, 1999 at about 08-00 p.m. Gajendra Pande-complainant-father of the victim, at that point of time had gone to attend one marriage ceremony. Renuka-wife of the complainant, her minor daughter i.e. victim and Devendra, brother of the complainant, who was sick, were at home. Renuka was preparing food and her daughter-victim was playing on the abutting “Otta”. After some minutes, Renuka tried to ascertain the presence of her daughter-victim and she found that her daughter was not there. Therefore, she asked her neighbour- cum-tenant Shri Vijaykumar about her daughter-victim and asked him to help her in finding out her daughter-victim if she is in the nearby area or not. At about 09-00 p.m. to 09-15 p.m., the said Vijaykumar brought her daughter- victim in practically unconscious CR.A/252/2001 5/45 JUDGMENT and bleeding condition and he informed Renuka that the accused- Dhananjay was sleeping with her daughter-victim on the bank of “Khadi” situated behind her residence. (ii) According to the prosecution case, on seeing Vijaykumar, the accused- Dhananjay ran away leaving the victim there. As the victim was bleeding from vagina, Renuka and Vijaykumar both took the victim to the dispensary of one Dr.Tripathi. The said Dr.Tripathi informed that they should take the victim to the Civil Hospital for treatment as a wrong has been committed to her and thereafter, the victim was taken to the Civil Hospital for treatment. She was admitted in the hospital. On return of Gajendra-complainant from the marriage ceremony, he was informed by the people residing in the neighbourhood that the victim CR.A/252/2001 6/45 JUDGMENT has been taken to the hospital and, therefore, he rushed to the Civil Hospital at Surat. The parents of the victim ultimately realised that the victim was kidnapped by the accused and the accused had committed rape on her. The father of the victim ultimately gave complaint regarding the incident to the Police Sub-Inspector posted at the Limbayat Police Station of Surat City. The complaint has been registered with Limbayat Police Station as F.I.R. at about 04-45 a.m. on 17th May, 1999, for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. (iii) According to prosecution, when Dr.Jagdish Shah examined the minor victim on 17th May, 1999 at about 03-10 a.m. as an injured patient, the following injuries were found/noticed by the doctor, which CR.A/252/2001 7/45 JUDGMENT are mentioned in the certificate issued by the doctor and proved during the course of trial : I. Tear, 1 X 0.5 c.m. X Skin deep over the perineum at 6 O'clock position and 12 O'clock +nt around anus. II. No active bleeding P/R. III. Anus sphincter tone decreased. IV. Anus pastulous. V. Bleeding Plv present. VI. Hymen torn. VII. 1st degree vaginal tear about 5mm +nt at 6 O'clock. VIII. No active bleeding from tear and from inside the vagina. It is relevant to note that even the defence counsel has not disputed as to the nature of injuries noticed by the said Dr.Jagdish Shah because the defence is that the appellant is not the CR.A/252/2001 8/45 JUDGMENT culprit of the criminal wrong committed qua the victim. (iv) It is also the say of the prosecution that immediately after bringing the minor victim from “Khadi” area as she was found bleeding from vagina, the residents of the neighbouring area including Vijaykumar had traced out the accused in couple of minutes and the accused was house-arrested in some portion of the house of the complainant. The police ultimately drew a formal arrest panchnama in the Police Station and on completion of the investigation as the evidence collected by the Investigating Agency was sufficient, the accused was chargesheeted. 3. After recording oral as well as documentary evidence led by the prosecution, the prosecution has successfully established all the charges levelled against the accused and CR.A/252/2001 9/45 JUDGMENT therefore, the learned trial Judge held the accused guilty and passed the aforesaid judgment and order of conviction and sentence. The present appeal is a challenge to the said findings recorded by the learned trial Judge. 4. While developing the arguments the learned advocate for the accused has submitted mainly on the following aspects : 4.1 The FIR lodged by the prosecution cannot be looked or read as an FIR lodged under Section 154 of the Code of Criminal Procedure, 1973 and the learned trial Judge has committed a grave error in considering the contents of the FIR because the police had already reached to the hospital much prior to arrival of the complainant-father of the victim girl at Civil Hospital, Surat. 4.2 The evidence of orig.complainant Gajendra Pande-father of the victim i.e.PW-1, Ex.12, is based on facts gathered by this witness from more than one person including his wife Renuka. Undisputedly, he was not present till the victim was admitted in the hospital for CR.A/252/2001 10/45 JUDGMENT treatment. 4.3 Though the orig.accused was allegedly apprehended and confined in the house of the complainant, his name is not reflected in the hospital papers as a culprit; otherwise the doctor who recorded the history must have noted his name. When Vijaykumar had left the city for any unknown reason and has not stepped into the witness-box voluntarily and has avoided the service of process, it was possible for the learned trial Judge to consider as an important argument that this Vijaykumar himself may be the culprit and this possibility raises a shadow of doubt on the case of the prosecution. 4.4 Devendra-brother-in-law of Renuka and real uncle of victim girl examined by the prosecution, has not stated anything about confinement of Dhananjay in the house where he was lying sick and this witness should have corroborated fully to the version of PW-Renuka. However, PW-Renuka is not getting any corroboration of substantive nature from this witness. So the evidence led by this witness CR.A/252/2001 11/45 JUDGMENT PW-Devendra being very weak piece of evidence, shatters the credibility of two important witnesses i.e. Renuka and the complainant- father of the victim girl. 4.5 The evidence of PW-Renuka and PW-Devendra as to the apprehension of Dhananjay in couple of minutes from the time of incident does not get corroboration from the Investigating Officer because no formal arrest is shown of the orig.accused-Dhananjay from the house of the orig.complainant. On the contrary, the Investigating Officer has not rendered any explanation as to how and when the accused was brought to the Police Station. Negligence of the Investigating Officer of not drawing the panchnama of formal arrest at the residence of Renuka makes the prosecution case doubtful as to the immediate apprehension of the accused and his confinement. On the contrary, by some good gestures, he might have cleverly implicated the accused in the offence. The negligence on the part of the prosecution in drawing arrest panchnama of the accused and in collecting clothes which were sent for CR.A/252/2001 12/45 JUDGMENT examination to FSL (Forensic Science Laboratory) are not able to provide any strength. In the present case, the Investigating Officer ought to have drawn formal arrest panchnama at the residence of Renuka by pointing out the specific time. The second panchnama was required to be drawn in the Police Station or in the hospital itself where he was required to be sent for examination. The Investigating Officer ought to have kept the accused in his custody for long hours and there is no explanation as to why he was taken for examination to Civil Hospital after lapse of some hours. This as per the say of Mr.Shah creates doubt on the transparency of investigation. 4.6 The medical certificate of the accused does not clearly support the case of the prosecution as no injury of material nature was found on the genetic organ/penis of the accused. When the victim girl, according to the case of the prosecution, was two years of age, the scope of sustaining injury by the accused was there. The prosecution has not satisfactorily led the CR.A/252/2001 13/45 JUDGMENT evidence on this aspect. 4.7 The hospital papers are available on record, but certain pages of the entire bunch of papers have been exhibited and name of accused reflected as culprit in the hospital papers cannot be looked into because the said page of the bunch of papers has not been exhibited by the learned trial Judge and this Court also should not consider the entire bunch of documents available on record as substantive piece of evidence. Inadmissible and hearsay evidence has been considered by the learned trial Judge on crucial aspects. 4.8 The prosecution has not examined Vijaykumar conveniently and the learned trial Judge has also failed in exercising jurisdiction vested with him under Section 311 of the Code of Criminal Procedure, 1973. It could have called Vijaykumar as Court witness to find out the truth and to defeat the ill-will of prosecuting agency. In support of this argument, Mr.M.P. Shah, learned counsel appearing for the respondent-orig.accused, has taken us through CR.A/252/2001 14/45 JUDGMENT the provisions of Section 311 of the Code of Criminal Procedure, 1973 and the comments made by the author on the scheme of Section 311 of the Code of Criminal Procedure, 1973. However, he has concentrated his arguments on the ratio propounded by the Apex Court in the case of Shailendra Kumar v. State of Bihar and others, reported in 2001(8) Supreme 513, wherein the Apex Court has made certain observations as to the duty of the Presiding Judge of the Court and the Prosecuting Agency and has taken us through the following part of the decision: “9. .. .. .. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the only duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial CR.A/252/2001 15/45 JUDGMENT of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non- bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.” 4.9 The prosecution has not examined Dr.Tripathi. This witness could have given strength to the prosecution about the involvement of the accused and this infirmity makes the case of the prosecution doubtful. 5. In the case of Shailendra Kumar (Supra), the Apex Court had inferred specifically from the facts and evidence available on record that by one way or the other, the learned Additional Sessions Judge as well as the learned CR.A/252/2001 16/45 JUDGMENT Additional Public Prosecutor have not taken any interest in discharging of their duties. It was the duty of the Sessions Judge to issue summons to the Investigating Officer if he fails to remain present at the time of trial of the case. It is true that in the present case, the Investigating Officer was not called by the learned trial Judge and it was possible for the learned trial Judge to exercise powers vested with the Court under Section 311 of the Code. It is not necessary for us to quote Section 311 of the Code of Criminal Procedure, 1973 but bare reading of the said Section reveals that it is of very wide amplitude if there is any negligence, latches or mistake by not examining the material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. The function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 6. According to us, in the present case, non- CR.A/252/2001 17/45 JUDGMENT exercise of powers vested with the learned trial Judge under Section 311 of the Code of Criminal Procedure, 1973, even if is considered as an error, it is not a material lapse or negligence on the part of the Court or the learned Additional Public Prosecutor, resulting into prejudice to eitherside because more than one reasonable attempts were made to serve the process to the said Vijaykumar and an affidavit of the concerned responsible officer to that effect is available on record. 6. The decision of the Apex Court in the case of Manish Dixit and others v. State of Rajasthan, reported in 2000(7) Supreme 364, with other Criminal Appeals filed by the co-accused Sharad Dhakar @ Bantu and others, cited by Shri M.P.Shah reaffirms the settled legal position, where the Apex Court in paragraph no.12 of the decision has said that : “12. To obviate the said difficulty the Public Prosecutor in the trial Court made a futile attempt to CR.A/252/2001 18/45 JUDGMENT render the statement made by Michael Hens to the inmates of Gulshan Makhija as evidence falling within the purview of Section 6 of the Evidence Act. That attempt gained success at the trial stage as the Sessions Judge approved the contention. But the Division Bench of the High Court has very rightly repudiated such a contention. As the counsel for the State did not make even an attempt to render such statement admissible in evidence, we are relieved of the task to deal with that statement.” 7. In this cited decision, when the accused was chargesheeted by the Investigating Officer, his case was not based on circumstantial evidence but the same was on the foundation of the statement made by one solitary witness Michael Hens. This Michael Hens was not examined by the prosecution and the prosecution had not explained satisfactorily as to how and why he could not produce Michael Hens, a solitary eye-witness before the Court CR.A/252/2001 19/45 JUDGMENT to give evidence in the trial. It was argued before the Apex Court that the solitary eye- witness was the German tourist and he had already left the country before the trial started. The Apex Court observed that “we feel that he should have been allowed to go back only on an undertaking that he would return to India for giving evidence in this case, he being the solitary eye-witness. Why the prosecution and the State did not adopt such a precautionary measure is not explained to us satisfactorily. This lapse rendered the prosecution to transform this case to one of circumstantial evidence alone.” In the present case, the facts available on record are slightly different and this sole difference, according to us, is significant and legally important. It is true that the person shown as witness namely Vijaykumar has not been examined. Number of attempts were made to serve him the process of the Court but no attempt was made for his arrest by issuing a bailable warrant and thereafter, when there was need, a non-bailable warrant at a CR.A/252/2001 20/45 JUDGMENT subsequent stage ought to have been issued. There is some logic and force in the argument of Mr.Shah that the original Investigating Officer ought to have been called personally by the Court and he ought to have been sent personally to execute the process so that he can identify the person witness taking help of the other sources as Vijaykumar had settled in Surat. But we are not able to accept the argument of Mr.Shah that the Court itself ought to have issued process suo motu in exercise of powers vested with the Court under Section 311 of the Code of Criminal Procedure, 1973 with a view to see that true and correct facts are made available to the Court while appreciating the evidence collected against the accused. Such powers are discretionary and the Court should go very slow in assuming the role of a public prosecutor directly or indirectly when it comes to exercise powers vested with the Court under Section 311 of the Code of Criminal Procedure, 1973 in respect of a person who is not either produced or examined by the prosecution. It is very likely that such an attempt would protract the trial CR.A/252/2001 21/45 JUDGMENT for pretty long; especially when the nature of the case was not getting changed materially, which was found by the Apex Court in the case of Manish Dixit (supra). Here the case against the accused is that when PW-1 Renuka-mother of the victim realised that her daughter victim who was sitting on the 'Otta' abutting to her house was not there, she started searching her and sought for help of her neighbour-cum- tenant Shri Vijaykumar. This fact stated by her is in the nature of direct evidence. It is possible to argue that corroborative piece of evidence in this regard by Vijaykumar could have added more strength to this part of her version. She has said in her cross-examination that she does not know PW-Brijeshkumar. A pointed question was asked to PW-Renuka by the defence counsel during her cross-examination as to whether Vijaykumar had told her the fact that Brijesh Kumar had seen her daughter being kidnapped which was conveyed to Vijaykumar by Brijesh Kumar. It appears that this witness must have realised before her deposition in the Court that this PW-Brijeshkumar is not likely to support the case of the prosecution CR.A/252/2001 22/45 JUDGMENT and, therefore, she has attempted to modulate her version as to his acquaintance and other aspects and presence of PW-Brijeshkumar at the relevant point of time. The Court after referring to the police statement of Brijeshkumar has disallowed the above question and obviously, therefore, no formal answer to this question is available on record. It is true that the question asked was not totally irrelevant because as per the scheme of Section 23 of the Indian Evidence Act, a fact relevant to a relevant fact is relevant. We have carefully considered the evidence of PW- Brijeshkumar who is treated as hostile and it is clear from record that the case of the prosecution is that the said Brijeshkumar had seen the accused Dhanjanjay taking the minor victim girl and he had indicated this fact to Vijaykumar and PW-Renuka. But we are not legally entitled to draw any inference because no legal evidence in this regard which can be said to be a substantive piece of evidence is available on record. The contradictions brought by the prosecution during the cross- examination of Brijeshkumar cannot be read as CR.A/252/2001 23/45 JUDGMENT substantive piece of evidence. But it emerges from record specifically that at the instance of Renuka, Vijaykumar had gone to search for her victim daughter. She has stated in her deposition that this Vijaykumar brought the minor victim and had handed over the minor victim, who was bleeding from vagina, to PW- Renuka. She has also stated that the accused was apprehended before Renuka had proceeded to get medical assistance for the minor victim with Vijaykumar and the accused was in a drunken condition. Her this version is in the nature of direct evidence and if is found trustworthy then the examination of Vijaykumar would be a duplication for establishment of one fact that minor victim when was not seen playing on the 'Otta' abutting to the house of PW-Renuka, she sought for help of Vijaykumar and ultimately Vijaykumar brought minor victim with bleeding vagina in couple of minutes and both of them i.e. PW-Renuka and Vijaykumar had proceeded to a doctor to get medical assistance for minor victim and by that time the accused was apprehended and he was found drunk. According to us, in absence of evidence CR.A/252/2001 24/45 JUDGMENT of Vijaykumar, it was not possible for the learned trial Judge to ignore the evidence of PW-Renuka which is direct in nature as to the events that occurred since when she realized the absence of her victim girl on 'Otta' and ultimately took the victim to get medical assistance with the help of Vijaykumar. In the same way, the evidence of PW-Renuka is also direct that Vijaykumar had accompanied her when her minor daughter was taken to Dr.Tripathi and thereafter, to Civil Hospital for treatment as advised by Dr.Tripathi. The defence cannot legally argue that in absence of evidence of Dr.Tripathi, this version of Renuka is inadmissible. For the sake of argument, hypothetically, one another possibility that might have occurred during trial if is considered, then also it does not affect adversely the strength of the evidence led by PW-Renuka and this possibility is of hostility, on examination, shown by Vijaykumar and even by Dr.Tripathi. In such a situation, it was legally possible for the learned trial Judge to evaluate the