CR.A/1428/2007 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1428 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= FAQIR FAROOQ KHAN @ CHUHO ABBASKHAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR H AHMED for Appellant(s) : 1 - 2. MS DARSHNA PANDIT ASST. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 11/08/2008 ORAL JUDGMENT 1.0 This appeal arises out of the judgment and order dated 20th December, 2006 rendered by the learned Additional Sessions Judge, Fast Track Court No.1, Patan in Sessions Case No. 34 of 2006. CR.A/1428/2007 2/23 JUDGMENT 2.0 The appellants, herein, are original accused persons who were charged with offences punishable under Section 363, 376 and 114 of the Indian Penal Code. Original accused No.1-the appellant No.1, herein, was convicted for the offence punishable under Section 363 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- and in case of default to undergo simple imprisonment for a period of one month. The appellant No.1 was also convicted for the offence punishable under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.500/- and in case of default to undergo simple imprisonment for one month. The aforesaid sentences, imposed on appellant No.1 by the trial Court are ordered to run concurrently. The original accused No.2- appellant No.2, herein, was convicted for the offence punishable under Section 376 of the CR.A/1428/2007 3/23 JUDGMENT Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.500/- and in case of default to undergo simple imprisonment for one month. 3.0 The brief facts of the case are that on 17.12.2005 at about 4:00 p.m., the appellant No.1 met the victim-the prosecutrix, herein, at Patan Railway Station. Appellant No.1 gave his introduction as 'Irfan' to the prosecutrix and took her to the waiting room. The appellant No.1 offered food to the prosecutrix. Then, appellant No.1 took the prosecutrix at his home and introduced her with his parents. The parents of appellant No.1 told the prosecutrix to get married with their son. But, the prosecutrix declined to marry with appellant No.1 and left their house. Thereafter, appellant No.1 and appellant No.2 again met the prosecutrix on the road and they took her to one 'Durgah' in a tempo. By the time the prosecutrix offered CR.A/1428/2007 4/23 JUDGMENT 'salam' at the 'Dargah' it was getting dusk. At night, both the accused persons i.e. appellant Nos. 1 and 2 took the prosecutrix in the field, situated behind the aforesaid 'Dargah' and there appellant No.1 committed sexual intercourse with her, against her wish and will. On the next day i.e. on 18.12.2005, appellant No.2 also committed sexual intercourse with the prosecutrix, against her wish and will. Thereafter, the accused No.2 left the prosecutrix on the road in unconscious condition. Then, one Yoginiben Vyas of 'Bhagini Samaj', Patan informed police through telephone that one lady is lying near the circle in front of Shitla Mata Temple in unconscious condition. The prosecutrix was, thereafter, taken to the Patan Government Hospital. The prosecutrix gave history of the alleged offence to the Doctor at hospital. Pursuant thereto the complaint of the prosecutrix was registered. The investigation was carried out and both the appellants-original accused were arrested. At the end of the investigation, charge-sheet was submitted against CR.A/1428/2007 5/23 JUDGMENT the accused persons before the learned Chief Judicial Magistrate, Patan. However, since the learned Chief Judicial Magistrate, Patan was not empowered to try the offences punishable under Section 363 and 376 of the I.P.C., the learned Judge committed the case before the Sessions Court, Patan and the same was numbered as Sessions Case No.34 of 2006. 3.1 The appellants-original accused persons denied all the allegations leveled against them. Hence, the trial Court, after hearing all the parties, convicted and sentenced the accused persons as mentioned in para-2 of the judgment. Hence, the present appeal. 4.0 The prosecution in support of its case has examined following witnesses, 1. Dr. Jasvantbhai Revabhai Yadav-P.W.-1 Exhibit-13, 2. Dr. Bhagvatiprasad Ramlal Patel-P.W.-2 Exhibit-16, CR.A/1428/2007 6/23 JUDGMENT 3. Manulaben Manilal-P.W.-3 Exhibit-20, 4. Rameshbhai Nagindas Parmar-P.W.-4 Exhibit-22, 5. Dr. Rajendrakumar Surajmal Gupta-P.W.-5 Exhibit-24, 6. Satish Jagjivandas Rami-P.W.-6 Exhibit-26, 7. Kesarkha Pirkhan-P.W.7 Exhibit-28, 8. Mahendrabhai Madhavlal-P.W.-8 Exhibit-29, 9. Jayantilal Shankarlal-P.W.-9 Exhibit-32, 10. Dilaji Ravaji Thakore-P.W.-10 Exhibit-33, 11. Rasidabanu Noormohmed Kasai-P.W.-11 Exhibit-35, 12. Dr. Yasmin Mohmedsafi Hussaini-P.W.-12 Exhibit-28, 13. Manoharbhai Sitaram-P.W.-13 Exhibit-40, 14. Chenaji Ranchodji Rajput-P.W.14 Exhibit-43, 4.1 The prosecution has also placed reliance CR.A/1428/2007 7/23 JUDGMENT on several documentary evidences i.e., charge- sheet(Exhibit-8), history given by the prosecutrix(Exhibit-14), medical certificate of the prosecutrix(Exhibit-15), medical certificate of original accused No.1(Exhibit-17), Panchnama of the physical condition of the prosecutrix(Exhibit-21), medical certificate of original accused No.2(Exhibit-25), F.S.L. Report (Exhibit-47)etc.. 5.0 Dr. Jasvantbhai Shivabhai Yadav-P.W.-1 was examined at Exhibit-13. P.W.-1, who had examined the prosecutrix on 18.12.2005, has deposed that he was on duty on that day and at about 9:14 p.m. one Shivabhai Bijalbhai, Head Constable brought the prosecutrix to the hospital for her treatment. P.W.-1 has further deposed that while he was examining the prosecutrix, she was fully conscious. She gave history that yesterday she had gone to 'Dargah' and while returning from there, one person named 'Irfan' met her and took her to his home and there he CR.A/1428/2007 8/23 JUDGMENT committed rape on her at night. She further told P.W.-1 that on 18.12.2005 also, another person named Raju committed rape on her and left her on the road. P.W.-1 has deposed that the prosecutrix told him that she is resident of Ajmer and she used to beg. 5.1 P.W.-1 in his cross-examination has clearly stated that the prosecutrix had given history that on two different dates rape was committed on her, at two different places. This witness, in Medical Certificate (Exhibit-15) of the prosecutrix issued by him, has mentioned that as per Gynaec opinion, possibility of recent intercourse with the prosecutrix cannot be ruled out by present examination. 6.0 Dr. Bhagwati Prasad Ramlal Patel-P.W.-2 was examined at Exhibit-16. P.W.-2 has deposed that one Faruk Khan @ Chuho Abbasbhai Fakir i.e. accused No.1 was brought to General Hospital CR.A/1428/2007 9/23 JUDGMENT Patan for medical examination on 25.12.2005 in connection with the commission of offence of rape on one Rasidaben Noormohmed Kasai on 17.12.2005. P.W.-2 has deposed that when he tried to derive information from accused No.1, he (accused No.1) remained silent. P.W.-2 has deposed that he had taken several X-rays of accused No.1 so as to determine his (accused No.1's) actual age. From the said X-rays, it transpired that the bones of the lower arms were joined with apsis and that wrist and upper part of the arm were also joined with apsis. The X-ray of the thigh of the accused No.1 showed that aeliyacriss apsis was not joined. P.W.-2 has deposed that the from the aforesaid X-rays it transpired that the age of accused No.1 was between 17 years to 19 years. P.W.-2 has further deposed that in the mouth of the accused No.1, pairs of eight teeth were found on both the side and that the lower jaw was found absent which suggest that the age of the accused was above 17 years and below 19 years. This witness has further deposed that accused No.1 was CR.A/1428/2007 10/23 JUDGMENT physically and sexually well developed and was able to perform sexual intercourse. 6.1 P.W.-2 in his cross-examination has stated that the age of accused No.1 could be between 17 to 19 years. 7.0 Dr. Rajendrakumar Surajmal Gupta-P.W.-5 was examined at Exhibit-24. In his deposition, he has stated that on 14.03.2006, one Ayubkhan Jamalkhan Shaikh-accused No.2 was brought to General Hospital, Patan for medical examination. P.W.-5 has deposed that accused No.2 gave him history that he(accused No.2) had met the prosecutrix at bus stand at about two and a half month before the incident. Accused No.2 further told P.W.-5 that the prosecutrix had asked him to show 'Dargah', and thereafter, he departed from her (the prosecutrix) and went to Ahmedabad along with his ailing mother. P.W.-5 has deposed that accused No.2 told him(P.W.-5) that he had taken CR.A/1428/2007 11/23 JUDGMENT bath on last Saturday i.e. about a week before his examination and had also changed clothes. P.W.-5 has deposed that on examination he found that accused No.2 was physically well grown. P.W.-5 has deposed that during examination, he found that accused No.2 was able to perform sexual intercourse. 7.1 In his cross-examination, P.W.-5 has stated that he had not examined the blood group of the accused No.2. 8.0 The victim Rasidabanu Noormohmed Kasai- P.W.-11 was examined at Exhibit-35. P.W.-11 in her deposition, has deposed that she has four sisters and one brother. She further deposed that she had come to Patan via Delhi and Ajmer. She told that she used to beg. When P.W.-11 was asked as to whom she had met first? She identified accused No.1 and made gesture towards him. She deposed that accused No.1 took her at CR.A/1428/2007 12/23 JUDGMENT his house and after removing her clothes, he(accused No.1) committed rape on her. Thereafter, parents of the accused No.1 told her to leave their son, and hence, she went back to railway station and there she met another person. When P.W.-11 was asked as to whom she had met next? She identified accused No.2 and made gesture towards him. She deposed that accused No.2 took her to a 'Dargah' in a tempo. On reaching there, accused No.2 asked her to marry with him and when she denied, he beat her. Thereafter, accused No.2 pasted tape on her mouth and took her into jungle and after removing her clothes committed rape on her. 8.1 P.W.-11 in her cross-examination has stated that she had not married with the accused No.1. She has further stated that when accused No.1 tried to remove her clothes at his house, she had protested and told him not to touch her. This witness has clearly stated that the intercourse which was committed on her by accused CR.A/1428/2007 13/23 JUDGMENT No.1 at his house, was committed against her wish and will. She further stated that she never had intercourse with anybody before the incident in question. This witness denied that since accused No.1 refused to marry her, she has filed a false complaint against the accused persons. 9.0 Dr. Yasmin Mohmmedsafi Hussaini-P.W.-12 was examined at Exhibit-38. She has deposed that on 19.12.2005, the prosecutrix was brought to her for medical examination. She has deposed that the prosecutrix gave her history that yesterday i.e. on 18.12.2005 in the evening while she was returning from 'Dargah' after offering 'salam', one person named Rajesh committed rape on her near the temple. P.W.-12 has deposed that when she was examining the prosecutrix, she (the prosecutrix) was fully conscious. On examination, P.W.-12 found that the age of the prosecutrix was about 21 years. CR.A/1428/2007 14/23 JUDGMENT 9.1 In her cross-examination, P.W.-12 has stated that the aforesaid history was given by the prosecutrix herself. 10.0 Manoharbhai Sitarambhai-P.W.-13 was examined at Exhibit-40. He has deposed that on 18.12.2005 at about 20:40, he received information from one Yoginiben Vyas of 'Bhagini Samaj' that one lady is lying before the Shitla Mata Temple. Hence, he sent a constable for investigation. He has further deposed that at about 20:45, he received information about the commission of the alleged offence, and then, he handed over the investigation to Shri. Chenaji Ranchodji Rajput, P.I.. 10.1 In cross-examination, this witness has admitted that, in the case on hand, except, registering the offence, he had not done anything. 11.0 Chenaji Ranchodji Rajput-P.W.-14 was CR.A/1428/2007 15/23 JUDGMENT examined at Exhibit-43. He has deposed that on receiving information about the commission of alleged offence, he went to the hospital and registered the complaint as narrated by the prosecutrix. He has further deposed that, when the prosecutrix recovered her health, he along with the panchas and the prosecutrix went to the place of offence and drew the Panchnama(Exhibit- 27). He deposed that he recorded the statements of witnesses and seized the clothes worn by the prosecutrix, at the time of commission of offence, for the purpose of investigation, after drawing Panchnama(Exhibit-21). He has deposed that, during investigation, the names of accused No.1 and accused No.2 were disclosed, and hence, he arrested them and got them examined by the doctor. 11.1 In his cross-examination, P.W.-14 has stated that it is true that the prosecutrix had told him that two persons committed rape on her, on two different dates and at two different CR.A/1428/2007 16/23 JUDGMENT places. He denied that the Panchnamas of place of incident were prepared in the police station and on the prepared Panchnamas, signatures of the witnesses were taken. This witness stated that it is not true that, though, there were insufficient evidence against the accused persons, he had filed charge-sheet. 12.0 So far as the evidence of P.W.-3, P.W.-4 and P.W.-6 to P.W.-10 are concerned, they were declared hostile, and hence, it would not be relevant to refer to the same. 13.0 In the light of the above discussion, now, it has to be examined as to whether the trial Court has committed error in convicting the appellants or not. 14.0 The prosecutrix-P.W.11, in her deposition, has deposed that two different persons committed rape on her on two different CR.A/1428/2007 17/23 JUDGMENT dates and at two different places. The story put forwarded by the prosecutrix is corroborated by the evidence of P.W.-1 and P.W.-14. P.W.-1 has stated that while he was examining the prosecutrix on 18.12.2005, she gave the history of the offence in question which is exhibited as Exhibit-14. P.W.-14 has also deposed that while he was registering the complaint of the prosecutrix, she narrated the story of commission of offence in question by the accused persons. 14.1 It was argued by learned Advocate for the appellants that since no identification parade was carried out by the I.O. and since there are major contradictions in the version of offence given by the prosecutrix, the same cannot be accepted. So far as the said argument advanced by learned Advocate for the appellants is concerned, it has come on record that the prosecutrix is not well-educated person. She is resident of Uttar Pradesh and had come to Patan via Delhi and Ajmer. The prosecutrix has deposed that she has CR.A/1428/2007 18/23 JUDGMENT been begging for one year before the date of offence. Hence, taking into consideration the aforesaid background, the prosecutrix cannot be expected to have narrated the commission of offence in a manner, in which a person with high intelligence would have narrated. From the evidence of P.W.-14 it transpires that during the investigation, when he(P.W.-14) called the prosecutrix for the identification of the accused persons, she identified both the accused without any hesitation. The prosecutrix also identified both the accused persons in the court. Hence, the contention raised by the learned Advocate for the appellants that non-holding of identification parade by I.O. is fatal to the case of the prosecution, is rejected. So far as the argument of the learned Advocate for the appellants with regard to the contradictions in the evidence of the prosecutrix is concerned, from the above discussion it clearly transpires that, though, there are several contradictions in the evidence of the prosecutrix, so far as the CR.A/1428/2007 19/23 JUDGMENT aspect of the commission of offfence by the accused persons is concerned, her version remains un-controverted. Hence, the said contention raised by the learned Advocate for the appellants is also rejected. 14.2 The case of the prosecution is also supported by documentary evidences i.e., the medical report of the prosecutrix as well as of both the accused persons, F.S.L. Report etc.. In the Medical Certificate (Exhibit-15) of the prosecutrix issued by P.W.-1, it has been clearly mentioned that “As per gynaec opinion possibility of recent intercourse cannot be ruled out by present examination”. The medical examination of both the accused persons done by P.W.-2 and P.W.- 5 also suggest that the accused persons were well-grown and were able to perform sexual intercourse. On completion of primary medical examination of the prosecutrix, P.W.-1 sent her saliva, pubic hairs, venous blood, finger nails, vaginal swab, uretal swab and cervical swab to CR.A/1428/2007 20/23 JUDGMENT F.S.L., Ahmedabad for further examination. P.W.- 2 had also sent specimen of blood of accused No.1, his semen, pubic hairs, saliva and finger nails to F.S.L., Ahmedabad. P.W.-2 had also taken several x-rays of right wrist, elbow and hip of the accused No.1 so as to determine his age. The aforesaid x-rays showed that the age of the accused No.1 was between 17 to 19 years. Besides that the presence of pairs of eight teeth on both the sides and the absence of the lower jaw in the mouth of accused No.1, suggest that the age of the accused was above 17 years and below 19 years. Hence, the argument advanced by the learned Advocate for the appellants that the accused No.1 was juvenile at the time of commission of offence, and hence, lenient view should be taken, requires to be rejected and is rejected. 14.3 Apart from the above, the clothes worn by the prosecutrix as well as the accused No.1 were also sent to F.S.L., Ahmedabad for chemical CR.A/1428/2007 21/23 JUDGMENT analysis. From the F.S.L. report(Exhibit-47)it transpires that when 'Pajama' of the prosecutrix was examined, the presence of human blood was found on the same. The said report suggests that the blood group of the prosecutrix was 'A'. During the examination, the presence of human semen was also found on the vaginal, urinal and cervical swab of the prosecutrix. Aforesaid facts confirm the story put forward by the prosecutrix that she was subjected to sexual intercourse by the accused persons. The chemical analysis done on the pant worn by the accused No.1, at the time of commission of offence, also confirmed presence of human semen thereon which was of 'B' group. The F.S.L. report showed that the blood group of the accused No.1 was of 'B' group. So far as the Medical Report and chemical examination of the nails, pubic hairs, blood and saliva of the accused No.2 is concerned, nothing significant was found from the same. However, at the same time, one must not lose sight of the fact that the offence in question was committed on CR.A/1428/2007 22/23 JUDGMENT 18.12.2005 whereas the accused No.2 was arrested and produced for medical examination before P.W.5 on 14.03.2006 i.e. after a period of about three months from the date of commission of offence. Apart from that it has also come on record that accused No.2 had taken bath and had also changed his clothes, before he was taken to hospital for medical examination and on account of that it is natural that the medical examination and chemical analysis of the accused No.2 would not show any signs of commission of offence by accused No.2. Therefore, the contention raised by the learned Advocate for the appellants that the trial Court has committed an error by relying on the medical and F.S.L. report of the prosecutrix as well as that of both the accused persons, is rejected. 15.0 In view of the above discussion and taking into consideration the documentary evidence in the form of medical report, F.S.L. report etc. as well as taking into consideration the facts and circumstances of the case, I am of CR.A/1428/2007 23/23 JUDGMENT the opinion that the trial Court has rightly convicted the appellants for the offences punishable under Section 363, 376 and 114 of the Indian Penal Code and the appeal deserves to be dismissed. 16.0 In the result, the appeal stands dismissed. The bail bonds of the appellants stand canceled. The appellants will surrender before the Jail / competent Authority immediately, failing which it shall be open to the competent Authority to take necessary actions against the appellants-original accused persons. (M.D. Shah,J.) Umesh/