CR.A/740/1988 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 740 of 1988 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 ? ========================================================= KANTIJI R THAKORE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BA SURTI for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/05/2008 ORAL JUDGMENT Appellant was original accused. By the impugned judgment and order dated 5.9.88, he was convicted for offence punishable under section 376, 452 and 506(2) of the Indian Penal Code and sentenced him to CR.A/740/1988 2/9 JUDGMENT R.I. for seven years, two years and six months respectively. All substantive sentences were made concurrent. 2. As per charge Ex.3, it is alleged that the appellant on 15th March 1987, at 5 O' clock in the evening, entered the house of the prosecutrix with a knife, threatened her and committed forcible intercourse on her. 3. 'R', victim lady, PW-1, was examined at Ex.6. She stated that Govindbhai is her husband. She has two sons aged 9 and 4 years. Accused was a partner of her husband in the business of timber. On the date of the incident, at about 4 O' clock, her husband had gone to the market. She was alone at home while her children were playing outside. At about 5 O' clock when she was alone at home, accused came there on a scooter and enquired about her husband. When she told him that her husband is not at home, he flashed a knife from his pant pocket and threatened that if she shouted, he would kill her. He, thereafter, laid her on a cot in the house and committed rape on her. In the meantime, her husband arrived from the market. The accused was still lying on top of her. When her husband admonished the accused, he threatened him also. When her husband shouted, other people had gathered there. Her husband took the accused to the police station. She also went there and filed the complaint. She identified the clothes she had worn at that time as well as those CR.A/740/1988 3/9 JUDGMENT worn by the accused which were collected by the police. In the cross-examination, she admitted that near her house there are other residential premises as well as shops situated. Public road is also there which people use regularly. The incident took place on the day of Holi and there was continuous movement of people. Initially when the accused arrived, she was not aware about his intention. However, she realized that he was out to rape her, she shouted 4 to 5 times upon which, her children had come and other people had also arrived. Upon hearing her shouts, her husband also came. She had tried to resist and had also tried to escape. She had in fact slapped him a couple of times. She, however, could not run away as he was carrying a knife. Later on, however, she stated that upon hearing her shouts, other people had not come. She explained that since fan in her house was on, people outside her house could not hear her shouts and therefore, during the incident no one came inside her house. She denied that her husband doubted her fidelity and suspected that she had relation with the accused. She did not know whether her husband owned money to the accused from the business transactions. 4. Husband of the complainant, Govindbhai, PW-3 was examined at Ex.12. He stated that on the date of the incident, at about 4.30 in the evening, he had gone to the market for buying vegetables. His wife and CR.A/740/1988 4/9 JUDGMENT children were alone at home. After half-an-hour when he returned home, he found in the wooden cot, his wife and the accused were lying. His wife was underneath and her dress was raised high up. The accused was clothless. He saw that the accused had knife in his hand. He, therefore, started shouting and two-three people arrived at the scene. His wife told him that the accused had raped her. With the help of others, he ensured that the accused was caught in the house. Soon police officer also arrived who arrested the accused. His wife had also gone to the police station. He himself went to his village Kherol to leave his children from there he came back to Talod in an hour where the police had recorded his statement. In the cross-examination, he denied that there was dispute between him and the accused regarding money transactions. Though he denied that he had not shouted or that other people had not come to the scene of the incident, he however, could not give their names. To the police also, he had not been able to give their identification. 5. Dr.Ambalal Madhavlal, PW-2, was examined at Ex.8. He had examined both the victim lady as well as the accused on 15th March 1987, at Civil Hospital, Himatnagar where he was working as a Medical Officer. He had found several injuries on the bodies of both the accused as well as the complainant. He had found scratch marks on the face and on the cheek of the CR.A/740/1988 5/9 JUDGMENT complainant. He had found abrasions on her chest, on the left shoulder and on the right hand. Upon the accused also, he had found injuries on the thighs and swelling on the chest. He had found presence of semen in the vagina of the lady. He opined that she had intercourse in last 24 hours. With respect to the accused, however, he could give no such definite opinion. It may be noted that he had not collected samples of semen, blood, pubic hair, etc. of the accused or saliva, pubic hair, etc. of the victim lady. 6. Kantibhai Ishwarbhai, Ex.13, was the panch witness who had witnessed the seizure of the clothes of the accused as well as the complainant. He stated that on the pants of the accused, he could see spots looking like semen. In the cross-examination, he admitted that he not only belongs to the same community as the husband of the complainant, but also belongs to the same village. He had come to Talod from Kherol because it was Holy day. 7. Investigating Agency collected the knife allegedly carried by the accused at the time of the incident and his motor-cycle allegedly near the house of the complainant. The panch witness, however, turned hostile. IO stated the manner in which the seizure was effected. CR.A/740/1988 6/9 JUDGMENT 8. Clothes of the complainant as well as the accused were sent for analysis. FSL report indicated presence of semen from the pettycot worn by the complainant. From no other sample, including the clothes of the accused, presence of blood or semen detected. Semen was that of group B. 9. Mansukhlal, PW-7, was examined at Ex.21. He had carried out the investigation and described the manner in which he had conducted the investigation. 10. Primarily on the above evidence, the prosecution sought to sustain the charge. 11. At the outset, it may be noted that the investigation has not been carried out in a satisfactory manner at all. As noted, several important aspects have been completely omitted. Samples of semen, blood and pubic hair etc. of the accused were not collected. Pubic hair, saliva, etc. of the complainant were also not collected. Thus,though from the clothes worn by the complainant presence of semen could be detected, there is nothing available on record to connect with that of the accused since neither his blood group could be known nor his clothes were found to be carrying any such traces. It is because of this that the doctor could not give definite opinion whether the accused himself had intercourse particularly shortly before his examination or not. CR.A/740/1988 7/9 JUDGMENT 12. These factors become significant while assessing the oral evidence. The complainant though described the manner in which the accused threatened her and overpowered her before committing rape, has made number of self-contradictory statements. Though in her complaint, she never stated that she had shouted for help, before the Court, she stated that initially she was not aware about the intention of the accused. However, when she realized that he is about to rape her, she shouted 4 to 5 times. This is a material improvement made by the witness. Further, she stated that upon hearing her shouts, her children came and other people also reached there. She immediately changed over and stated that since it was Holi and people were busy playing Holi nobody had come. But her husband heard the shouts and reached the place. In later portion of her deposition, she explained that since the fan in her house was on, people outside could not hear her shouts and therefore did not come to her help. 13. Once again, though none of these things were stated in the complaint, before the Court she stated that she had put up quite a resistance. She had not only pushed the accused, but had slapped him several times. She had tried to run. She had also resisted him from lifting her clothes. Quite apart form these improvements being material, seen in light of her assertion that her house was surrounded by other residential houses and shops, it is impossible that no one from the neighbourrhood could hear her shouts CR.A/740/1988 8/9 JUDGMENT or come to her help. In fact she had admitted that being close to the public road, there was movement of people throughout. Particularly being a Holi day, there would be large number of people in the neighbourhood at about 5 O' clock in the evening. The version of the prosecutrix thus does not inspire confidence. 14. Her husband only further compounds the problem. Though he stated that others had rushed to help him, he could give no description of such people. He had also not given any such statement before the police. 15. Investigating agency in its own way further complicated the matters. As noted, proper investigation was not carried out. Important and necessary samples of the accused we well as the complainant were not collected and sent for analysis. The sole panch witness who supported the prosecution, namely, Kantibhai, PW-4, Ex.13, was not only not local but by chance he happened to come to Talod though he belonged to Kherol, same village to which the husband of the complainant belonged. Govindbhai, PW-3, also stated that after the police arrived, he went to his own village to drop the children and came back after one hour. The IO also stated that there were three persons present at the place of the incident whose statements he had recorded. However, such witnesses were not examined before the Court. 16. All in all, the impression I gather is that the CR.A/740/1988 9/9 JUDGMENT evidence of the prosecutrix and her husband is not entirely reliable. Knife was found from the scene of the incident and was neither recovered nor discovered at the instance of the accused. The only thing the prosecution proved conclusively was the presence of motor-cycle of the accused and perhaps therefore his presence also. This by itself, however, cannot demonstrate the guilt of the accused beyond reasonable doubt. 17. In view of such contradictory oral evidence and in absence of any corroboration from other evidence, I find it extremely unsafe to base conviction of the appellant for the said offence. I, therefore, find that the learned Judge committed a legal error in convicting the appellant. 18. In the result, the appeal is allowed. Conviction and sentence of the appellant are set aside. Bail bond stands cancelled. Fine if paid shall be refunded. (Akil Kureshi, J.) (vjn)