CR.A/1771/2005 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1771 of 2005 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 ? ==================================================== ==== VAJABHAI DAHYABHAI RATHOD - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ==================================================== ==== Appearance : MR NITIN M AMIN for Appellant(s) : 1 - 4. MR KC SHAH, APP for Opponent(s) : 1, ==================================================== ==== CR.A/1771/2005 2/14 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 14/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1. The challenge in this appeal is to the judgment and order rendered by learned Additional Sessions Judge, Fast Track Court, Nadiad on dated 19.7.2005 in Sessions Case No.89 of 2001. By virtue of the impugned judgment and order, the learned trial Judge convicted all the four appellants, who were original accused in the aforesaid sessions case for the offences punishable under Sections 363, 366 and 376 r/w.Section 114 of the Indian Penal Code (‘IPC’, for short) and each accused was sentenced to undergo rigorous imprisonment for 5 years and fine of Rs.2000/-, in default to further undergo simple imprisonment for one year for the offences punishable under Sections 363 and 366 of the IPC and rigorous imprisonment for 10 years and fine of Rs.5000/-, in default to further undergo simple imprisonment for 2 years for the offence punishable under Section 376 of the IPC. The appellants – accused were acquitted from the charge of offence punishable under Section 201 r/w.Section 114 of the IPC. 2. The prosecution case in nutshell is as under:- CR.A/1771/2005 3/14 JUDGMENT 2.1 On dated 3.7.2000, at about 11 p.m., during night hours, Rashmi, aged about 4-1/2 years was sleeping on a cot along with her parents in the house situated at village Mithanamuvada, Tal.Thasra, Dist.Kheda. It is the case of the prosecution that at that time the four accused persons kidnapped Rashmi, with intent to rape her and she was taken to outskirts of the village, near a pond and all the four accused persons committed sexual intercourse on the girl Rashmi and gang-raped her. It is further the case of the prosecution that with a view to destroy the evidence, the accused persons removed all the clothes from the body of Rashmi and they washed their own clothes. Mangalbhai Rathod, father of Rashmi lodged FIR in connection with this offence in Thasra Police Station. The FIR was registered and the police commenced investigation. Statements of material witnesses were recorded. Necessary panchnamas were drawn in presence of Panch witness. Clothes of the accused persons were recovered by drawing panchnama. Medical examination of Rashmi was conducted and necessary certificates were obtained by the police. Clothes etc. were sent to Forensic Science Laboratory (‘FSL’, for short) for due analysis. Accused persons were arrested. After completion of the investigation, the police filed chargesheet in the Court of learned JMFC, Thasra. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Kheda at Nadiad, which was registered as Sessions Case No.89 of 2001 and the said case came to be transferred to the Court of learned trial Judge for trial in CR.A/1771/2005 4/14 JUDGMENT accordance with law. 2.2 The learned trial Judge framed charge at Exh.30 against all the four accused persons for the offences punishable under Sections 363, 366, 376, 201 r/w.Section 114 of the IPC. As the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After the prosecution completed its evidence, the learned trial Judge recorded further statements of the accused persons under Section 313 of the Code of Criminal Procedure, wherein the accused persons denied generally all the allegations levelled against them and they submitted that they were falsely implicated in this case. 2.3 The learned trial Judge after appreciating the evidence on record and after considering the arguments advanced on behalf of both the sides, delivered the impugned judgment and he was pleased to convict all the four accused persons for the offences punishable under Sections 363, 366, 376 r/w.Section 114 of the IPC and awarded the sentence as hereinabove described in this judgment. By virtue of the impugned judgment, the learned trial Judge granted benefit of doubt to all the accused persons in connection with commission of offence punishable under Section 201 r/w.Section 114 of the IPC and they were acquitted from the charge of said offence. Hence, the original accused persons preferred this appeal. 3. During the course of the argument, learned advocate Mr.Amin for the appellants submitted that considering the entire oral CR.A/1771/2005 5/14 JUDGMENT and documentary evidence on record, the prosecution miserably failed to prove that all or any of the accused persons are involved in this offence. It is submitted that in the FIR, no names or any description of the accused persons are mentioned. It is submitted that even the fact is not disputed that Rashmi, aged 4-1/2 years was subjected to sexual intercourse, yet, the very vital issue would be the proof regarding involvement of the accused persons in connection with this crime. There is no reliable evidence worth the name, fixing the identity of the accused persons. Even there is no material whatsoever on record to show as to how the accused persons came to be arrested in connection with this offence by the Investigating Police Officer. That the prosecution relied upon the deposition of Rashmi (PW-11) for fixing the identity of the accused persons. It is submitted that the incident occurred on dated 3.7.2000, during night hours. The deposition of Rashmi before the trial Court was recorded on dated 21.2.2005, after about 4-1/2 years from the date of the incident, for the first time in the Court. Rashmi stated that she was raped by four accused persons, who were present in the Court. Her police statement was not recorded by the police. Even her deposition regarding the so-called identification of the accused for the first time in the Court, is very shaky. As per the prosecution case, four unknown accused persons raped her, that too during night hours and there is no evidence whatsoever to come to the conclusion that in the house, where Rashmi was sleeping, there was any electric light on, or that there was availability of light at the place where the incident CR.A/1771/2005 6/14 JUDGMENT occurred. It is submitted that the prosecution relied upon the panchnama to the effect that one of the appellant – accused person Vajabhai in presence of Panchas took the Panchas and Investigating Police Officer to the place of incident. However, both the Panchas in connection with the panchnama, Exh.37 turned hostile. Even the deposition of Investigating Police Officer in connection with this panchnama, Exh.37, is not cogent and convincing. Virtually, the panchnama, Exh.37 can be branded as “demonstration panchnama”. It is outright not admissible in evidence. The prosecution relied upon one solitary piece of evidence that the blood group of Rashmi happened to be of “B” Group and on the undergarment of appellant – accused Arvindbhai Keshavbhai, blood mark showing the blood Group “B” was found by the FSL. However, as a matter of fact, considering the FSL report and especially the serological report, it is crystal clear that even the blood group of appellant – accused Arvindbhai Keshavbhai is “B”. Even no reliance can be placed upon the solitary piece of evidence. It is submitted that all the accused persons are alleged to have raped Rashmi, aged about 4-1/2 years. But, considering their medical evidence, no injury whatsoever was found either on their body or even on their private part. Thus, even the fact regarding Rashmi having sexually abused and was raped is accepted, yet, the prosecution miserably failed to prove the very involvement of the accused persons in connection with this offence. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order delivered by the learned trial Judge recording conviction of the CR.A/1771/2005 7/14 JUDGMENT accused be set-aside and the appellants – accused be acquitted. 4. Learned APP Mr.Shah for the respondent – State vehemently opposed this appeal and submitted that considering the deposition of victim Rashmi, she clearly identified all the accused persons during the course of her deposition before the trial Court. There is no reason to doubt her testimony. That considering the deposition of witness Rameshbhai Rathod, Exh.46, who happened to be the uncle of Rashmi, he deposed that on the day on which the incident occurred, all the four accused persons had come to the house of Rashmi, to meet her father Mangalbhai, at about 5 p.m. in the evening and they met Mangalbhai and thereafter they left. It is submitted that Rashmi’s father Mangalbhai and all the four accused persons were working in the field of Pravinbhai and thus, the accused persons were not unknown to the family of Rashmi. It is further submitted that considering the evidence in form of FSL report and especially the blood marks on the garments of the accused persons, the prosecution successfully adduced corroborative piece of evidence connecting the accused with the crime. That the medical evidence clearly reveals that Rashmi, aged about 4-1/2 years was sexually abused and was raped. Thus, it is submitted that the appeal be dismissed. 5. We have given our thoughtful consideration to the submissions made on behalf of both the sides. From the submissions made on behalf of the appellants by learned advocate Mr.Amin and perusing the relevant evidence adduced in sessions case before CR.A/1771/2005 8/14 JUDGMENT the trial Court, the moot question which arises is regarding the identification of the accused persons. Considering the overall evidence on record and especially the report regarding medical examination of Rashmi, it cannot be denied that she was not sexually abused or that the factum of rape having been committed on her was not proved by the prosecution. But, re- appreciating the evidence on record, we are of the opinion that there is substance in the arguments advanced by learned advocate Mr.Amin for the appellants that the evidence adduced by the prosecution regarding the identity of the accused linking them with the crime, is shaky and cannot be termed as an evidence beyond any reasonable doubt. 6. Apart from the fact that in the FIR lodged by Mangalbhai, the father of the victim Rashmi, the name of any accused is not mentioned, yet, considering the deposition of Investigating Police Officer – Dy.S.P. Mr.Damor, Exh.109, he deposed that he arrested all the four accused persons in connection with this crime on dated 7.7.2000. Again, apart from the fact as to how and on what basis the accused came to be arrested on dated 7.7.2000 in connection with the FIR lodged by Mangalbhai on dated 4.7.2000 against unknown accused persons, the fact remains that Investigating Police Officer nowhere stated in his deposition about any Test Identification Parade (‘TIP’, for short) having been conducted in presence of witnesses or the victim of the accused persons subsequent to their arrest. Admittedly no TIP was conducted. CR.A/1771/2005 9/14 JUDGMENT 7. There is no rule of evidence that without any prior TIP, if an accused is identified for the first time by any witness in open Court, during the course of his deposition, said evidence becomes inadmissible or that per se it becomes doubtful evidence. The Court may rely upon such evidence regarding the identification of the accused, provided the testimony of such witness inspires confidence of the Court and is cogent and convincing and is free from any reasonable doubt. In the instant case, the incident occurred on dated 3.7.2000 during night hours in darkness and the accused persons came to be identified for the first time in open Court by victim Rashmi, who was then aged about 4-1/2 years, during the course of her deposition on dated 21.2.2005 i.e. approximately about 4-1/2 years from the date of occurrence. As per the prosecution case, the incident occurred during night hours. There is no evidence whatsoever to show that there was availability of electric light in the house of the victim when she was kidnapped from her house or the place where the incident of rape occurred. Thus, it cannot be said that the victim had opportunity to identify all or any of the accused persons during the night hours. In this connection, it would be necessary to consider the deposition of Rashmi Mangalbhai, Exh.54. According to her, she was raped by four unknown persons. She stated that she cannot identify the persons who raped her. However, she stated that all the four persons, who raped were present in the Court. She stated that after the incident she was left alone and while she was coming towards her house, one person who belonged to the village, met her and he brought her to her house. In her cross- CR.A/1771/2005 10/14 JUDGMENT examination, she stated that she was told by her mother that today she was required to go to Court for her testimony. She further stated that she inquired to her mother as to what she should speak. In her cross-examination, she stated that her parents are working as labourers in the field of Pravinbhai and that all the four accused persons are also working in the same field of Pravinbhai. She further stated that the accused persons used to come to her house for tea. Under such circumstances, considering her deposition, it is true that during the course of her deposition, she stated that the persons who raped her were present in the Court. However, she further stated that she was brought to the Court by her mother and she was told by her mother that she was required to give her testimony and thereupon, she had also inquired from her mother as to what she has to speak. Moreover, considering her deposition, it transpires that as a matter of fact, the accused persons were not unknown to her. Both her parents and accused persons were working as labourers in the field of Pravinbhai and even prior to the incident the accused persons used to come to her house. Despite this there is nothing on record that when her parents and uncle inquired to her as to who committed such mischief with her, she gave names of the accused persons or that she told them that the persons, who raped her had often come to their house. 7.1 In this connection considering the deposition of Mangalbhai, the father of the victim and the first informant, Exh.42, he stated that one Somabhai brought Rashmi to his house. CR.A/1771/2005 11/14 JUDGMENT Nothing is emerging from his deposition that either before he lodged the FIR or after the lodgment of FIR, Rashmi ever told him that the persons who caused mischief with her, were not unknown and they had often come to their house. The deposition of Kailasben, mother of Rashmi runs on the same line. Considering the deposition of witness Somabhai Parmar, Exh.48, he stated that at about 5 a.m. in the morning, while he was going to answer nature's call, near the pond of their village, at that time he heard shouting ofdaughter of Mangalbhai and he brought her to her house. Considering the deposition of witness Rameshbhai Rathod, Exh.46, who happens to be the uncle of Rashmi, he stated that on the day of incident, at about 5 p.m. in the evening the four accused persons had come to the house of his brother Mangalbhai and after tea etc. the accused had left the house of Mangalbhai. However, it is stated that during night hours, he did not see any person coming in the house. The prosecutiondeclared the witness as hostile witness. During the cross-examination made on behalf of the prosecution, he stated that in his police statement he had stated before the police that accused Vajabhai had come to his house during night. He also stated that he was knowing the accused persons. However, in his cross-examination on behalf of the defence, he stated that when he woke-up from his sleep, only at that time he came to know that Rashmi was not in her cot. Under such circumstances, considering the overall testimony of witness Rameshbhai, it becomes clear that basically the accused persons were not unknown to family of the victim. Rameshbhai stated that on the day of the incident, at about 5 CR.A/1771/2005 12/14 JUDGMENT p.m. in the evening, accused had come to their house and they had taken tea and then they left. However, he specifically stated that during night hours nobody had come. As stated above, evenRashmi stated in her deposition that accused persons used to come to her house. Again, considering the deposition of Rameshbhai, the fact which emerges is that till the accused persons came to be identified by Rashmi, after about 4-1/2 years from the date of the incident, during the course of her deposition before the trial Court, she nowhere stated either to her parents or to her uncle Rameshbhai that the persons who raped her were not unknown, but, they were accused persons. 7.2 As a piece of circumstantial evidence, the prosecution relied upon the panchnama, Exh.37 and perusing the panchnama, it transpires that one of the accused persons named Vajabhai Dayabhai took the Panchas and the Police Officer to the place of incident and it is stated in the panchnama that acccused Vajabhai stated that this is the place where they did mischief with Rashmi. However, both the Panchas Idrisali Saiyed and Mohamed Vora have been examined by the prosecution in this case as witnesses and they both did not support the contents of the panchnama and they had turned hostile witnesses. Investigating Officer Dy.S.P. Mr.Damor in his deposition, Exh.109 only briefly stated that accused Vajabhai had took them to theplace of incident and the panchnama was drawn, which is produced at Exh.37. No other details are given by the Investigating Officer during the course of his deposition in connection with the panchnama, Exh.37. Considering the CR.A/1771/2005 13/14 JUDGMENT panchnama, Exh.37 as it is, we see considerable force in the arguments advanced by learned advocate Mr.Amin that virtually the panchnama can be termed as “demonstration panchnama”, which is not admissible in evidence, as per law. 7.3 Similar is the situation, if we consider the FSL report and especially the serological report. FSL report reveals that the blood group of Rashmi is Group “B”. So far as blood Group “B” is concerned, it further reveals that there were blood marks on one undergarment of appellant – accused Arvindbhai Kesharbhai and the FSL report further revealed that the blood marks were of Group “B”. However, considering the report it further transpires that the blood group of accused Arvindbhai himself was of Group “B”. The blood marks which were there on the pant, underwear and undergarments of other accused persons were analysed by the FSL and they turned out to be of Group “A” which is not matching with Group “B” of the victim Rashmi. Thus, it cannot be said that by circumstantial evidence, the nexus between the crime and the accused persons can be said to have been duly established. 8. In light of the above discussions, we are of the considered opinion that the prosecution failed to establish the involvement of the accused persons in this offence. Under such circumstances, the appeal deserves to be allowed and the impugned judgment and order recording conviction of the appellant – accused persons deserves to be set-aside. 9. For the foregoing reasons, the appeal is allowed. The CR.A/1771/2005 14/14 JUDGMENT conviction of the appellant – accused persons recorded by the learned trial Judge in connection with the commission of the offences punishable under Sections 363, 366, 376 r/w.Section 114 of the IPC in Sessions Case No.89 of 2001 is set-aside. The appellants -accused are ordered to be acquitted. They be forthwith released from jail, if no longer required in any other case. Fine, if paid, be refunded to them. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)