CR.A/5/2004 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 5 of 2004 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 ? ========================================================= LAKHU RAYSI SIJU (MAHESHWARI) - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KIRTIDEV R DAVE for Appellant(s) : 1, MR PD BHATTE,APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/03/2008 ORAL JUDGMENT 1. This appeal has been filed by the original accused No.2 who was charged with offences punishable under Sections 452, 376, 306, 504 and CR.A/5/2004 2/10 JUDGMENT 506(2) of the Indian Penal Code. 2. Wife of accused No.1 was also charged under the said offences read with Section 114 of the Indian Penal Code. She was however, acquitted of all the charges. 3. Prosecution case is that on 9.12.2002, at about 7 O' Clock in the morning, one Khetbai committed suicide by pouring kerosene over herself and set herself ablaze in the bathroom of her house. The reason for committing suicide is stated to be rape committed by the appellant herein on the deceased between 11 to 12 O' clock at the night of 8.12.2002 when she was sleeping insider her house. 4. Prosecution case rests mainly on a letter allegedly left by the deceased as well as her revelation before the police and before the Executive Magistrate in the form of dying declaration. Learned Sessions Judge found the appellant accused no.1 guilty of offences punishable under Sections 376, 306 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for a period of seven years for offence punishable under Section 376 of the Indian Penal Code and for a period of five years for offence punishable under Section 306 of the Indian Penal Code. He has spent close to five years in jail so far. CR.A/5/2004 3/10 JUDGMENT 5. Before assessing the evidence on record, the relevant material produced by the prosecution may be noted in brief. 6. Dr. Narendrakumar Daulatram Thavite-PW1 was examined at exh.9. He had carried out postmortem of the body of deceased. He stated that there were no injury marks on the private parts of the deceased. 7. Dr. Bhagwandas Kajibhai Karthla-PW2 was examined at exh.12. He had admitted injured Khetbai when she was brought to the primary health Centre at about 9 O' clock on 9.12.2002. He stated that Khetbai had given history of having committed suicide by pouring kerosene and setting herself ablaze and that she had not given any further details to him. 8. Dr. Manoj Gulabshankar Dave-PW3 was examined at exh.14. He had examined the accused pursuant to the complaint filed. He had found no injury marks on his body or on his private parts. He found no spots on his body or on his clothes. He did not notice presence of semen on his penis. The accused was unable to attend erection or give specimen of his semen though he was kept with the doctor from 10 in the morning till 2 in the afternoon. 8.1 In his cross examination, he stated CR.A/5/2004 4/10 JUDGMENT that he had not medically examined the accused to verify whether he was impotent. 9. Daughter of deceased Khetbai one Sunitaben Jivraj Maheswari was examined at exh.18. She stated that on the date of incident at about 7 O' clock in the morning her mother committed suicide by pouring kerosene on herself in the bathroom inside the house. Her brother had taken her mother to the hospital. She had handed over the note written by her mother to the police. 9.1 In the cross examination, she stated that about one and half years before the incident, her family had quarrel with the accused persons. She admitted that entry to the house is on the western side. After the first entry, there is a compound after which there is a large room. Thereafter, there are three other rooms situated in one of which rooms the incident had taken place. She admitted that to reach the room in which her mother was sleeping, one would have to cross three doors. She agreed that from the room in which she and her sister Anjana were sleeping, it was possible to reach the room of her mother by opening the door. She also agreed that if her mother wanted to come out of the room, she would have to pass the room in which the witness was sleeping. She stated that there are other 25 to 30 houses in the line around her house and there are several other CR.A/5/2004 5/10 JUDGMENT houses to the north, south and west of their house. She had admitted that at night they had locked the door from inside and also closed the front gate. 9.2 In the cross examination, she was shown the letter exh.19 alleged to have been written by her mother. She stated that same is not in the handwriting of her mother. 10.Pravinbhai Narandas Chauhan,PW-5,exh.21 was the Executive Magistrate who had recorded the dying declaration of Khetbai. He had recorded a short dying declaration in which allegedly deceased had stated before him that in the previous night, the appellant had come to her house and raped her. Her daughter was sleeping inside the house at that time. Her mother-in-law was also sleeping. Her two sons were however, not at home. On account of this incident, she poured kerosene on herself and set herself on fire. 10.1 In the cross examination, he admitted that in the dying declaration Doctor had not certified that patient is physically and mentally in a sound state and is able to give her dying declaration. He admitted that he had not read over the dying declaration to the deceased which was a mistake. He stated that though he asked Khetbai whether she wanted to say anything further, she had not given any CR.A/5/2004 6/10 JUDGMENT reply. He admitted that there are two thumb impressions on the dying declaration one in black ink and other in blue colour. 11.Manoj Jivraj Maheshwari,PW-6, exh.24 is son of the deceased. Though he was not present at the scene of incident, he reached there shortly thereafter, and had shifted his mother to the hospital. He however, turned hostile and did not support prosecution case. 12.Primarily, on the basis of above evidence that the prosecution sought to establish the charge against the appellant. 13.Before discussing the effect of the said evidence, it may also be noted that in the note exh.19 allegedly written by the deceased, it is stated inter-alia that the accused has committed rape on her by covering her mouth. He is also threatening her because of which she is unable to come out of the house. If she goes out she is being abused. 14.At the outset, it may be recalled that Sunitaben -PW4 stated that letter exh.19 is not in the handwriting of her mother. No other witness was examined to prove that letter was in-fact written by the deceased. Under the circumstances, it would he highly unsafe to place much reliance on the said letter. Even CR.A/5/2004 7/10 JUDGMENT otherwise the contents of the letter are somewhat conflicting with the prosecution version emerging from so called dying declaration recorded by the Executive Magistrate and other witnesses. None of the witnesses have stated anything about the recent animosity between the family of the accused and that of the deceased. Sunitaben-PW4 refers to some quarrel about year and a half back and no more recently than that. In the dying declaration also, Khetbai confined her allegation only to the act of rape committed by the appellant on her in the previous night, whereas letter as noted above, seems to be suggesting recent events of series of harassment. 15.Dying declaration under the circumstances, should have provided some clue to the reason which led to the unfortunate death of Khetbai. However, dying declaration suffers from number of infirmities. To begin with it does not contain certificate of Doctor that patient was in a stable condition physically and mentally to give the statement. Executive Magistrate also does not independently certify to this aspect of the matter in his deposition. To add to this, Executive Magistrate stated that in response to the question whether she wanted to say anything further, the deceased could give no reply. All these would suggest that condition of the deceased at the time when dying declaration was CR.A/5/2004 8/10 JUDGMENT allegedly taken, cannot be safely presumed to be sound. To add to that there is also discrepancy about the thumb impressions. This coupled with the other attending circumstances would convince me that it would be highly unsafe to base conviction of the appellant on the available material on record. As already recorded, Sunitaben -PW4 clearly stated that after crossing the main entrance to the house and after crossing the compound, one would have to enter the door to reach the main hall. This would lead to three different rooms in one of which her mother was sleeping. From her account, it can be seen that to reach the room in which Khetbai was sleeping, one would have to pass through the front door, then the door of the room in which Sunitaben-PW4 and her sister were sleeping and lastly through the door of Khetbai's room. For committing rape, one would have to thus pass through the room in which Sunitaben-PW4 and her sister was sleeping. Even as per the deceased, her mother-in-law was also in the house. No investigation has been carried out as to suggest how under the circumstances, accused reached the room of the deceased, committed a forcible intercourse and left the room unnoticed. One may recall that the incident took place in the month of December where ordinarily the doors of house would remain closed. Sunitaben-PW4 also stated that they were in habit of locking the doors before going to CR.A/5/2004 9/10 JUDGMENT sleep. To add to this, there is medical evidence to suggest that there were no injury marks on the private part of the deceased or that of the accused. No stains of semen were found from the body or the clothes of the accused. Accused though kept for more than four hours, he was unable to either achieve erection or give sample of his semen. Doctor also did not examine whether he was able to perform intercourse at all. 16.Under the circumstances, I find that the defence has probablised the version that appellant is falsely involved. The conviction of the appellant primarily on the basis of dying declaration which is otherwise shown to be shaky and when other evidence suggests that the incident as alleged was highly improbable to have occurred, would be wholly impermissible. 17.Under the circumstances, learned Judge committed error in convicting the appellant. When the evidence of rape itself is highly doubtful and not established on record to convict the appellant for offence punishable under Section 306 of the Indian Penal Code of having abated suicide on Khetbai also cannot sustain. 18.In the result, appeal is allowed. Conviction is set aside. The Appellant be released forthwith CR.A/5/2004 10/10 JUDGMENT if not required in any case. Fine paid, if any, be refunded. Appeal is disposed of accordingly. (Akil Kureshi,J.) (raghu)