CR.A/2149/2005 1/49 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2149 of 2005 With CRIMINAL APPEAL No. 2455 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE ANIL R. DAVE HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= PRAKASH RAMJIBHAI MARWADI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 2149 of 2005 MR RAJESH K SHAH for Appellant(s) : 1, MR KT DAVE, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, Criminal Appeal No. 2455 of 2005 MR YN LAKHANI with MR ASHISH DAGLI for Appellant:1 MR KT DAVE, APP, for Opponent : 1 ========================================================= CORAM : HONOURABLE MR.JUSTICE ANIL R. DAVE and HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/04/2007 CR.A/2149/2005 2/49 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE ANIL R. DAVE) 1. These two appeals have been filed against a common judgment dated 28th September, 2005 delivered by the Addl. Sessions Judge, Court No. 7, Ahmedabad City, in Sessions Case No. 4 of 2005 and Sessions Case No. 78 of 2005. By virtue of the impugned judgment and order, the accused in Sessions Case No. 4 of 2005, Prakash Ramjibhai Marwadi, has been held guilty of the offences punishable under sections 365, 342 and 376 read with sec. 114 of the Indian Penal Code (for short 'IPC') and has been sentenced to undergo Rigorous Imprisonment for 5 years for the offence under sec. 365 of IPC and a fine of Rs. 3,000/-, in default to undergo Simple Imprisonment for 6 months, for the offence under sec. 342, he has been sentenced to undergo simple imprisonment for one year and a fine of Rs. 1,000/-, in default simple imprisonment for 3 months, for abetment of offence under sec. 376 of IPC, to undergo rigorous imprisonment for 5 years and a fine of Rs. 10,000/- and in default, simple imprisonment for one year. It has been also ordered that the time spent in judicial custody be given as a set off. All substantive sentences are ordered to run concurrently. 2. So far as accused in Sessions Case No. 78 of 2005, Ramesh @ Vinod @ D.K Rodji @ Chaudhry @ Patel Shankarji @ Rajubhai Chaudhry-Patel (Kalal) is concerned, he has been held guilty of offences under CR.A/2149/2005 3/49 JUDGMENT sections 328 and 376 of the IPC and has been sentenced to rigorous imprisonment for 5 years and a fine of Rs. 5,000/-, in default simple imprisonment for one year for the offence under sec. 328, whereas for the offence under sec. 376 of the IPC, he has been sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 25,000/-, in default to undergo further rigorous imprisonment for one year. Substantive sentences are are ordered to run concurrently. 3. As observed by the Hon'ble Supreme Court in the case of State of Karnataka v. Puttaraja, AIR 2003 SCW 6429, so as to see that name of the victim is not revealed, the affected party has been referred to as “the victim” throughout the judgment. 4. Case of the prosecution, in both the cases, in a nutshell, was as under: 4.1. Though different versions have been given by the victim at different points of time, if one has to state in a nutshell, the victim's story goes as under: 4.2. The victim, a native of Haryana, wanted to go to Jammu from her village Oninda and, therefore, she went to Delhi. At Delhi, she was guided by someone and she boarded a train as per the guidance but in fact that train was going to Ahmedabad and, therefore, she landed at Ahmedabad. While alighting from the train at Ahmedabad, she did not know that she was in Ahmedabad and she believed the place to be Jammu. She CR.A/2149/2005 4/49 JUDGMENT was guided by a person named Yogesh, who took her to a hotel, where she stayed for two days. Thereafter, she changed the hotel and went to another one. She subsequently left the hotel with an intention to go back to her hometown and while she was on her way to the railway station, she was abducted by two persons, named, Prakash and Puja. Prakash is the accused in Sessions Case No. 4/2005, who has preferred Criminal Appeal No. 2149 of 2005. Another person, who participated in the offence of abduction, namely, Puja, is still absconding. 4.3. According to the victim, she was taken to a flat, named, Anushruti Flats by the above-named two abductors. She was kept in that flat for about 3 days and on the third night she was raped by two persons, named, Ramesh @ D.K. @ Vinod and another person, named, Rana. Rana is absconding and D.K., who was the accused in Sessions Case No. 78/2005, has filed Criminal Appeal No. 2455 of 2005. 4.4. After the victim was raped, she was locked in the flat and when she got up on the next day, so as to escape from the flat which was perhaps on the second floor, she tied her 'dupatta' and a bed-sheet together to a grill of a window and she got down from the flat. When she got down, she saw two policemen in the vicinity and upon inquiring with them about the nearest police station, she was guided to Sola High Court Police Station, where she narrated her story. The concerned police officer of Sola High Court Police Station took down the complaint and told her to go to CR.A/2149/2005 5/49 JUDGMENT Ellisbridge Police Station as the first offence in the chain had taken place within the jurisdiction of Ellisbridge Police Station because she was abducted from the area, which was within the jurisdiction of Ellisbridge Police Station. 4.5. The victim was thereafter taken to Ellisbridge Police Station and there she again narrated the entire story and an FIR was filed. Subsequently, she was referred to the Medical Officer of Civil Hospital where she was medically examined. Upon examination of her body, it was found that she had sexual intercourse earlier. 5. We have deliberately not given details with regard to time, date and other particulars about the above story narrated by the victim because the victim has changed her version from time to time. If one looks at the F.I.R. and the deposition which she made before the Sessions Court, one can find that at different points of time she has narrated different versions. In view of the said fact, we have only stated the grievance with which the victim had gone to the police station. 6. Now, looking to the FIR, which she filed at Sola High Court Police Station and later at the Ellisbridge Police Station, her version in somewhat detail, is as under: 6.1 On 13.2.2003 at 8.30 p.m., at Sola High Court CR.A/2149/2005 6/49 JUDGMENT Police Station, an FIR was recorded. As per the FIR given by the victim, she was staying with her father Subesingh in her village Oninda. While giving details about her family, she stated that her father had married twice. Upon death of his first wife, he married Shweta. Out of the first marriage of her father, he had a son, named, Yogendra, who was working in BSF and living in Delhi Fauji Camp. Thus, Yogendra was her step-brother and she further stated that she had one younger brother and younger sister. 6.2 The victim wanted to come to Ahmedabad as she had to appear at an interview on 05.02.2003 for the post of a typist. Intimation with regard to the interview was received by her through her grandfather. She left her village on 02.05.2003 with the call letter and went alone to Delhi and there she met her step- brother Yogendra and told him that she wanted to go to Ahmedabad to appear at the interview. Thereupon, her step-brother informed her that his friend, Suresh, was also to go to Ahmedabad for some work and, therefore, she could accompany Suresh. Then she came to Ahmedabad with Suresh on 4.2.2003 around 11 a.m. At Ahmedabad Suresh took her to Hotel Raj Palace and informed her that she should wait there for sometime as he had to go for some work. Meanwhile, she occupied Room No. 203 in the said hotel. Suresh did not come back thereafter and, therefore, she did not go to appear at the interview. Though Suresh had not come, the victim stated that a telephone call from Suresh was received, and he asked her to appear at the interview. She further stated that as she found CR.A/2149/2005 7/49 JUDGMENT the hotel charges to be quite high and, therefore, she asked the manager of the hotel to suggest name of another economical hotel, and, therefore, the manager of the hotel sent one of the employees of the hotel along with the victim to another hotel, where tariff of the room was Rs. 300 per day and she occupied Room No. 204 of the second hotel. She did not remember name of the second hotel, where she stayed. At night Suresh telephoned her and told her to wait for two days so that upon finishing his work he would take her back to Delhi. 6.3 On that day, the victim met a girl, named, Puja, who inquired about her and the purpose for which she had come to Ahmedabad. At the time when she was talking to Puja, someone came there and upon inquiry Puja informed her that the said person was her brother and his name was Prakash. They inquired whether she was alone and upon knowing that she was alone in Ahmedabad and wanted to go to Delhi, they told her to accompany them as they too were to go to Delhi. When she was ready to go with them, the manager of the hotel Suresh Yadav told her that she should not go as she had already paid the room charges. Thereupon Prakash and Puja left the hotel and Suresh Yadav, Manager of the hotel, told her that those two persons (Prakash and Puja) were not good persons and, therefore, she should not go with them. 6.4 Thereupon she stayed back in the hotel and on the next day an employee of the hotel came to her room and instructed her to vacate the room immediately. CR.A/2149/2005 8/49 JUDGMENT Thereupon she told the said employee that she had to wait for Suresh, but without listening as to what she said, she was asked to vacate the room. After leaving the hotel, when she was waiting for an auto rickshaw for going to railway station, an auto rickshaw came near her, wherein Prakash and Puja were sitting. Puja called her and asked her whether she wanted to go to Delhi as they too were going to Delhi. When she went near Puja, Puja pulled her hand and before she could react, her another hand was pulled by Prakash and as a result thereof she was dragged into the auto rickshaw. Puja had a handkerchief in her hand with which she covered the victim's mouth and thereupon she lost her consciousness. 6.5 When she regained her senses, she was in a flat in some building and at that time Prakash and Puja were with her and Puja told her that she (the victim) had to stay there. Thereafter she was locked in a room and Prakash and Puja left the flat. The victim also stated that thereafter Prakash and Puja used to visit the place either during the day or at night and they also used to manage for her food and while leaving, they used to lock her in a room. Thereafter, on 12.2.2003 in the evening, Prakash and Puja came with two other persons. One of them was introduced by Prakash to her as “D.K” and another was introduced as Rana. After introducing those two persons, after sometime Prakash and Puja left the place. 6.6 Thereafter, around 11.30 p.m., D.K. and Rana consumed liquor and they also forcefully poured CR.A/2149/2005 9/49 JUDGMENT liquor in her mouth. Thereafter, they removed her clothes and first of all D.K. raped her and then Rana also raped her. She thereupon fell unconscious and she did not know as to when they left the place. 6.7 On the next day, i.e., on 13.2.2003 around 3 p.m, she gained her consciousness and thereupon she put on her clothes. When she made an effort to open the door, she could not open it as it was locked from outside. Therefore, she tried to find a way to run away from the flat. She could find a bed-sheet and by tying her dupatta to the bed-sheet and tying the same with the grill of a window, she got down from the flat. Upon getting down from the flat, she reached the main road and thereafter she came to know that name of the building, where she was taken and locked, was 'Anushruti Tower' and on the adjoining road she saw a board of Hotel Signor. She stated that when D.K. came, he gave his visiting card to her and in the visiting card it was stated 'D.K. Chaudhry' and his address was Gurukrupa Society, Sola Road, Ahmedabad. Similarly, Rana also gave his card to her, which stated that he was G.S. Rana residing at 19/75, S.D.P. Road, Andheri(W), Mumbai-53. The two visiting cards, in addition to card of Hotel Raj Palace, were given by her to the police authority. Thus, she filed the FIR to the above effect around 8.30 p.m. on 13.2.2003. 7. The aforesaid version was the first version of her story narrated before the PSI, Sola High Court Police Station and recorded by Niranjanbhai N. Dave, PSI (Ex. 35). CR.A/2149/2005 10/49 JUDGMENT 7.1 As the first offence relating to the victim's abduction had not taken place within the jurisdiction of Sola High Court Police Station, the Police Sub- Inspector did not register the FIR though he recorded the F.I.R. and asked the victim to go to Ellisbridge Police Station. The PSI of Sola High Court Police Station addressed a letter to the in- charge police officer of Ellisbridge Police Station stating that the offence had been committed near Paldi Cross Roads and, therefore, though the offence had been recorded at Sola High Court Police Station as C.R No. 00/03, the papers were being forwarded to Ellisbridge Police Station on 14.2.2003. At Ellisbridge Police Station, the offence had been registered at I-CR No. 138/03. 8. Thus, from the first version given by the victim before the police authorities, it can be inferred that she had voluntarily come to Ahmedabad for appearing at an interview on 5.2.2003 and she had been abducted by Prakash and Puja and she was taken to a building named Anushruti Tower, where she was detained from 7.2.2003 to 13.2.2003, where she had been raped by two persons, and upon getting a chance, she had escaped from the building and had approached Sola High Court Police Station and thereafter Ellisbridge Police Station, where an FIR was registered. 9. When the victim was examined before the Sessions Court on 9.2.2004 as Prosecution Witness No. 5 (Ex. 21), she gave an altogether different version, which CR.A/2149/2005 11/49 JUDGMENT is as under: 10. According to her, from her village Oninda she wanted to go to Jammu and for that purpose she first went to Delhi. At Delhi she asked a stranger named Yogendra as to which train was going to Jammu and Yogendra guided her and accordingly she was made to sit in a train. Yogendra left thereafter. The train, which was boarded by her, brought her to Ahmedabad instead of Jammu and when she got down at Ahmedabad Railway Station, she met a person named Yogesh. 10.1 Yogesh took her to a hotel, where she stayed for two days, but she did not remember the name of the hotel. Thereafter, an employee of the said hotel took her to another hotel. Name of that another hotel was also not remembered by her. She was shown a copy of the hotel register, which was signed by her and she identified her signature, which was on page 19 of the hotel register (Exh. 42). In the second hotel she stayed for 3 days and in that hotel she met Prakash and Puja. (Ex. 43). She identified Prakash, who was in the court. When she left the hotel for going to Delhi, on the way she was abducted by Prakash and Puja and thereafter she was taken to a flat and in the flat she was made to stay for 3-4 days. On the next day, two persons, named, Rana and D.K., had come there and had offered her papad and she was also given liquor. Thereafter those two persons had raped her. She identified the person named D.K., who was in the court. CR.A/2149/2005 12/49 JUDGMENT 10.2 According to her, she was locked up in the flat and those two persons, Prakash and Puja, left the place. On the next day morning, she tied a bed-sheet of the hotel with her dupatta and both were tied to a pipe of the hotel and through a window she got down. [Though she was not in a hotel at the relevant time, she has referred to the place as a hotel and 'bed- sheet of the hotel']. Thereafter she saw some policemen and she narrated her story to those policemen and, thereafter, she was taken to a police station. At the police station whatever she stated was jotted down and she put her initial. She signed the document, which was written by the police. The police had informed her that whatever she had stated was recorded in Gujarati. Whatever was recorded in Gujarati was translated into Hindi and was read over to her in the court. 10.3 Here the victim has changed her version and has stated that it was not true that she had to appear at an interview at Ahmedabad and, therefore, she wanted to come to Ahmedabad. She also denied that her step- brother Yogendra was contacted by her and Suresh was introduced to her by Yogendra. Thus, she changed her version by stating that by mistake she had come to Ahmedabad and the entire story with regard to coming to Ahmedabad to appear at the interview had been denied by her. She stated that there was some dispute with regard to her friend at her residence in her village and therefore she had left her residence and came to Ahmedabad. She identified her clothes, which were recovered from Anushruti Flats from where she had CR.A/2149/2005 13/49 JUDGMENT escaped. 10.4 In the cross-examination she stated that she did not know as to when she came to Ahmedabad Railway Station and she was all alone when she came to Ahmedabad Railway Station. She even did not know that she had come to Ahmedabad. She had never gone to Jammu or Ahmedabad earlier and therefore she believed that she was in Jammu, whereas in fact she was in Ahmedabad. The person in the hotel had informed her that she was in Ahmedabad and not in Jammu. So as to clarify, she stated that it was for the first time she had left her house from her village and therefore she was not aware whether she was in Jammu or Ahmedabad. She thereafter stated in her cross- examination that she was taken to a hotel by Yogesh, who met her at the platform on Ahmedabad Railway Station. She did not know Yogesh, but Yogesh met her and inquired as to where she wanted to go. Upon asking as to where she wanted to go, she told Yogesh that she wanted to go to Jammu. Yogesh also didn't inform her that she was in Ahmedabad. Thereafter with some difficulty she came to a hotel. Yogesh made some inquiry at the reception counter of the hotel where they had come, and she was straightway taken to a room in the hotel. First of all, she stated that she had not signed the hotel register, but subsequently she changed her version and said that she had signed the hotel register. She had not paid any amount by way of deposit to the person at the reception counter of the hotel. CR.A/2149/2005 14/49 JUDGMENT 10.5 Only when she asked an employee of the hotel, she came to know that she was in Ahmedabad and thereupon she told that she wanted to go to Jammu. She also told the owner of the hotel that she wanted to go to Jammu. As there was a telephone in her room, she made an effort to contact her father, but she could not. She paid Rs. 500 as hotel charges while leaving the hotel and she was also given a receipt. She left the hotel because she wanted to go to Jammu. While leaving the hotel, she was told that there was no train going to Jammu at that time and, therefore, she went to another hotel. She didn't inquire anything about trains going to Jammu and she didn't remember as to when she had been to another hotel. In another hotel she stayed for two days and even at that time she did not make any inquiry with regard to trains going to Jammu. 10.6 Thereafter she stated with regard to the place where she was taken and from where she managed to escape through the window. Upon getting down through the window by tying her dupatta and a bed-sheet to the grill of a window, she saw some policemen and with their guidance she went to a police station, where the details given by her were noted. Thereafter she was taken to another police station, but she did not know the time taken for going to another police station and the time she reached the second police station but she had remembered that she went to another police station during the day time. She was taken to a hospital from the second police station and she was medically examined in the hospital. In the police station she CR.A/2149/2005 15/49 JUDGMENT stayed for a night and at that time her uncle had come. The police also made inquiries with her uncle. 10.7 Once again in the cross-examination she changed her version and said that it was not true that she informed the police that when she got down from the train she had met Yogesh. She also did not state anything to police with regard to Suresh and that she was asked to vacate the room in the second hotel. She also denied that she told the police that she was staying with her grandfather and grandmother at Alwar and she was studying in first year science (Hindi medium) at Sanjay College, Alwar. She also denied that she had stated anything with regard to her step- brother Yogendra. She also denied that she had applied for the post of a typist and also denied the details with regard to the interview call. Similarly, she also denied that Yogendra, her step-brother, had told her to go to Ahmedabad with his friend Suresh. She further denied that she and Suresh had gone to Hotel Raj Palace and as Suresh did not come, she didn't appear at the interview. She further denied that room charges of Hotel Raj Palace were quite high and therefore she had requested the manager of the said hotel to suggest name of another cheaper hotel. She also denied that she had gone to Hotel 'Rest N Ride' at Paldi, where tariff was Rs. 300 per day and she