IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 108 of 1995 with CRIMINAL APPEAL No 109 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE K.J.VAIDYA and MR.JUSTICE D.G.KARIA ========================================================== 1. Whether Reporters of Local Papers may be allowe to see the judgements ? YES 2. To be referred to the Reporter or not ? YES 3. Whether Their Lordships wish to see the fair cop of the judgement ? NO 4. Whether this case involves a substantial questio of law as to the interpretation of the Constitutio of India, 1950 of any Order made thereunder ?NO 5. Whether it is to be circulated to the Criminal Courts ? YES ---------------------------------------------------------- STATE OF GUJARAT Versus FARUKBHAI AHMEDBHAI SHAIKH --------------------------------------------------------- Appearance: 1. Criminal Appeal No. 108 of 1995 MR ST Mehta, APP for the appellant-State. MR Saurin A Shah for Respondent No. 1 (Appointed) 2. Criminal Appeal No. 109 of 1995 Mr. ST Mehta, APP for the appellant-State. Mr. SAURIN A SHAH, for the respondents(Appointed) -------------------------------------------------------- CORAM : MR.JUSTICE K.J.VAIDYA and MR.JUSTICE D.G.KARIA Date of decision: 13/08/9...R ORAL JUDGEMENT (PER: VAIDYA J) These two appeals by the State of Gujarat, first one for the enhancement of the sentence against Farukbhai Ahmedbhai Shaikh, and second against an order of acquittal against Rajesh @ Raju and six others, arise out of the common judgment and order dated 29-10-1994, rendered in Atrocity Case No.20/93, by the learned Additional Sessions Judge, Vadodara, wherein all the respondents who came to be tried for the alleged offences punishable under sections 341, 354, 452, 376, 143, 149 of IPC, read with section 3(xi) & (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985, and sections 7(b)(d) and 10 of the Protection of Civil Rights Act, 1955, were at the end of the trial, so far as Faruk Ahmed Shaikh was concerned, he was convicted for the offences punishable under sections 376 and 511 of IPC and sentenced to suffer RI for one year and six months and in default, to undergo further RI for one month, while the rest of the other accused persons came to be acquitted. 2. When these two appeals came-up on admission board for the first time, on going through the impugned judgment and order, we at the very outset were prima facie shocked to notice quite perfunctory and perverse manner in which the trial came to be disposed of convicting Faruk on the basis of totally untrust-worthy evidence of PW-3 Savita. In this view of the m..R were just constrained to call for the R & P and also appoint Mr. Saurin A. Shah, learned advocate present in the Court room to assist the court. Not only that but before hearing the above matters, both Mr. S.T. Mehta, the learned APP and Mr. Saurin Shah, learned Advocate (Appointed) for the accused were availed of the record and proceedings of the case which they have extensively used before arguing the matter. 2.1 Having regard to the facts and circumstances of the case, wherein both learned APP and the learned advocate for the accused having argued the case at full length for two days, with their joint request and consent, it has been decided to finally hear and dispose of this appeal today only. 3. We are quite conscious of the fact that so far as Criminal Appeal No. 108/93 is concerned, it is an appeal for the enhancement of sentence by the State. We are also further and equally conscious of the fact that the convict-Faruk has not preferred any appeal against his order of conviction and sentence. But at the same time, merely because no conviction appeal is filed, that can never prevent us to do justice and to express ourselves if the trial court has patently blundered in recording the order of conviction and sentence on the basis of totally unsustainable evidence of PW-3 Savita. It is indeed quite likely that the accused perhaps misapprehending that if he appeals what ought he did not know the High Court may perhaps enhance the sentence swayed by the allegation of he being a member accused of the gang rape and it is perhaps because of this lurking misapprehension only that he did not dare to file appeal !! Be the case as it may, but that certainly does not mean that we as High Court Judges should conveniently shut our eyes to do justice and protect the legitimate interest of the accused once our conscience is fully satisfied that the convict had been a victim of totally false and malicious allegation !! A citizen has indeed all fundamental rights, including the liberty to live freely and enjoy his life. This liberty, freedom does not merely mean that he should not be illegally confined or restrained or arrested or detained, but it also means that he should be allowed to live his life without any unwarranted blemish to his name. The concept of liberty and freedom cannot be merely confined in narrow compass of free physical existence and movement of person and various other fundamental rights enshrined in the Constitution only. It does cover as well in its fold his fair name and reputation also and accordingly whenever the Court feels beyond any manner of doubt that there is a case of illegal, unjust, unwarranted character assassination or there is a case of eclipsing good and fair name of any accused before the Court by foul means, and the accused is ultimately acquitted on giving merely benefit of doubt or in a given case where he is unfortunately convicted and for whatever reason did not file an appeal but on examining the evidence it is found to be the case of quite deserving clean and honourable acquittal then in that case, it is the foremost and boundless duty of the Court to give him a clean chit of unscathed acquittal !! There are cases also where the accused are given benefit of doubt, where the Courts would be quite helpless and accordingly unjustified in giving clean chit. But there are cases where as crystal clear as at the depth of 100 ft. of water if one can distinctly see an object lying at the bottom, then in such cases the Court must liberate accused not only from the prison but from bad name also which has unfortunately been chained around him because of the baseless malicious accusation. The importance of name, prestige and reputation in life of a person can never, never be under estimated as persons after persons are found either committing suicide or laying down their lives just only to save and protect their honour and name. In this way to some the reputation and honour of a person is quite much more important than the physical existence and the life. Fundamental right of the liberty of citizen accordingly does not merely mean that he should not be arrested illegally and unjustly and detained, but it has a second side of the coin also which extends to and takes in its sweep his further precious right of his name is not illegally and unjustly tarnished, stigmatized for ever by continuing the order of baseless conviction and sentence and that too on the wild allegations of being a member accused of the gang rape charge when the same is not sustainable at all ! As observed by the Supreme Court 'Right to life enshrined in Article 21 of the Constitution means something more than survival, it would include the right to life with the human dignity. It would include also all those aspects of life which go to make the man's life meaningful, complete and worth living'. Its true that these observations are made in context of the facts and circumstances of that particular case but nonetheless the governing spirit of Article 21 ought to be reasonably read as we have in the facts of the instant case. What we are saying are saying in respect of the case and the position of the accused at the end of full-dressed trial, after recording of the evidence. The reason is when the complaint is filed at that stage there may indeed be ordinarily nothing on the basis of which it can be conclusively said that an accused is victimized to be stigmatized. To allege a person as rapist and that too as the member of gang is too serious an allegation to bear, worse than to live with some fatal incurable disease rather worst then the acid thrown on the face injuring and de-shaping the human face which is too difficult nay perhaps even impossible to remove even after the orders of acquittal ! In the instant case, it is quite true that the accused has not filed any appeal against his order of conviction and sentence. But then where was the question of filing conviction appeal because by the time the trial was over, he had already undergone the sentence awarded to him ! This is what unfortunately our 'criminal justice system' is !! where many a time innocent citizen charged of serious offences when not bailed out has to languish in jail either because of the trial not taking place at the earliest and/or thereafter if appealed against conviction appeals are not heard for quite long time adding to their miseries. Such delays in disposal of cases at trial and thereafter at the appellate stage in our opinion affects the basic valuable human right apart the right of speedy justice enshrined in Article 21 of the Constitution. In given cases there indeed not be graver injustice than the delayed justice - at the trial stage or thereafter at the appellate stage. This includes civil as well as criminal cases !! This is entirely because of inadequate numbers of Courts and Judges and therefore the blame of doing injustice lies at the door of the Government; in particular at the door of our elected members in the Legislative Assembly and of the Parliament ! In such a helpless situation, where was the question of filing an appeal ? To pay hard earned money to the learned Advo- cate ? It is under these compelling circumstances, we, as a responsible court, feel that though the accused has not filed an appeal, still we are under the Constitu- tional obligation to render Justice when we undoubtedly feel and find that the trial Court has committed a patent blunder in recording totally unwarranted order of convic- tion deserving removal of stigma attached to the name of accused. More than the compassion, rather more than the right of the accused the citizen of this country, we deem it a privilege sacred duty of the Court under the consti- tution to give justice, crystal clean bill of acquittal. 4. WHETHER AN ACCUSED CAN BE CONVICTED ON AN UNCORROBORATED TESTIMONY OF THE PROSECUTRIX ? With the aforesaid preliminary observations, in order to appreci- ate the validity of the reasons given by the trial court while reaching the ultimate conclusion of conviction against Faruk under sections 376 read with 511 of IPC, we first of all propose to refer to the Charge (Exh. 36) and thereafter the evidence of PW-3 prosecutrix Savita, and medical evidence comprising of PW-1 Dr. R. N. Tandon and PW-2 Dr. I.B. Patel and other prosecution witnesses. 4.1 Before we enter into the appreciation of evidence of PW-3 where she alleges to have been gang raped, we are indeed quite conscious of the fact that there is no such invariable rule of the appreciation of evidence where the evidence of the victim girl/women cannot be accepted and relied upon for recording the order of conviction and sentence save and except only when it is duly corroborated. In fact, for this very purpose, as to how indeed the evidence of the victim of rape is required to be appreciated, we are quite aware of the illuminating Supreme Court decision rendered in case of Bharwad Bhoginbhai Hirjibhai versus State of Gujarat, reported in AIR 1983 SC 753. Not only that but we have also before us, yet one more latest decision on the point. rendered in the case of Mohanlal Amarji Marwadi versus State of Gujarat, reported in XXXVII (1996) 2 GLR p-200. The quint essence of both these judgment is that even on an uncorroborated testimony of the victim of sexual assault, accused can be convicted, but ultimately that does not dispense with the overall intrinsic credibility and consequential dependability of such a witness. In otherwords, if the evidence of victim girl/women is found to be of the sterling quality there is indeed no requirement of law to insist for further corroboration. 5. EVIDENCE OF PROSECUTRIX : Having attuned and focussed ourselves to the guiding principle as to how indeed we are to evaluate the evidence of prosecutrix, we straight way now proceed to appreciate the evidence of PW-3 Savita before the Court. According to her, the incident in question wherein she came to be gang-rapped by Rajesh @ Raju and 7 others took place on 6-3-1993 at 21-45 hours on the second floor of "Unnati Vidyalaya" a building under construction at Vadodara. In support of this allegation, the prosecution has examined several witnesses principal amongst them is PW-3 Savita herself. According to her, she is the original resident of village-Nathpura, (Taluka-Devgadh Baria, District (Panchmahals). She had married ten years back with one Dolat Bachu of Shivrajpur which continued for about one and half year. Thereafter she was deserted and after taking divorce, she was staying with her father. On the date of the incident, she was staying with her sister PW-5 Ramila and her husband, PW-4 Arvind and PW-6 Ranjan Nurbhai who belonged to her village and was doing the labour work. On 6-3-1993 at about 10-00 PM in Vijaynagar Highschool after taking supper, she was sitting and chitchatting with PW-4 Arvind and PW-5 Ramila and were talking about returning to their respective houses. At that time, 8 persons came and gave some thrashing and threats to PW-4, PW-5 and PW-6, and driven them away. Thereafter all these 8 persons dragged PW-3 in the adjoining room. Thereafter, one boy whom she did not know gave a slap. After administering the threats, out of 8 boys, 2-3 boys dragged and other 2-3 boys gagged her mouth. Thereafter, accused No.1 - Rajesh @ Raju committed sexual intercourse. After Rajesh completed the intercourse, another man came to her who was identified by her before the court, (who on asking the name disclosed him ) as Faruk. PW-3 identified the accused no.1 as a person who had first intercourse with her. After Rajesh and Faruk completed their sexual intercourse, the boys standing outside were shouting "maro varo... maro varo" when translated in English, it means "my turn, my turn" !! In the meantime, her sister PW-5 and brother-in-law PW-4 came there with the police and arrested Faruk who was found naked ! Thereafter the police took accused Faruk and PW-3 Savita to the city police station, Vadodara where she gave a complaint (EX-66) before PW-19 PI Raysinh Shivabhai, which came to be recorded on 7-3-1993 at about 11.35 p.m. One month thereafter the incident, the police once again called PW-3 in 'Narmada Bhuvan' and asked her to identify the accused who was absconding. She had identified him in the police station. She did not know the names of other accused persons. Thereafter she was forwarded for the medical examination to the SSG Hospital. In her cross-examination in para-8, she has admitted that after the alleged incident, she married with PW-7 Malji Khapar through whom she had one son. In para-9 of her cross-examination she has also admitted that the time of alleged offence as at 10.00 p.m. was given on her rough estimate. In para 10, she has further admitted that she did not inform to police about the incident as accused had done illicit act in the presence of police !! In para-11 of her cross-examination, she has further admitted that some senior police officer had asked about the names of the accused in her presence and that she did not remember that. She has also admitted that before the alleged incident, she was not knowing any accused person Accordingly she was not knowing names of anybody and she gave names after she was introduced by the police to some persons as accused In para-14 she has denied that the accused after beating PW-4, PW-5 and PW-6, they were driven out. She has also denied that 8 persons came. She has also denied that 8 boys dragged her. She has also denied to have stated in the complaint that the boys had administered threat and 2-3 persons dragged her and 2-3 boys gagged her mouth. She has also denied in her complaint that one person committed sexual intercourse. She has also denied that accused No. 1 Rajesh gagged her mouth and inserted his penis in her vagina. Now on reading the complaint (Exh. 66), it clearly appears that this allegation stands self-exposed as nothing is specifically alleged against accused No. 1 Rajesh. On the contrary on further reading FIR Exh. 66, PW-3 has clearly stated that the first person who had forcible sexual inter course with her was Faruk !! In para-15, she has denied that when she was taken to the hospital at 5-00 a.m. She had shown the injury on her chick. Further according to her, at the time of the incident, her hands, feet and back were bruised. There were also injuries on both the sides of the face and as a result it was swollen. But as against this if we peruse the evidence of PW-1 Dr. Tandon and the medical certificate issued by him, it is very clear that no such injuries as deposed before the Court are stated therein. Accordingly, the medical evidence to this extent clearly falsifies the evidence of PW-3 !! Further, on seeing the complaint Exh. 66, the story of PW-4, PW-5 and PW-6 were given beating, is not there at all !!. No doubt such sort of improvements in evidence before the Court may not be attached undue weightage and importance as the type of embellishments, embroidering, adding little salt and spice here and there to the story is quite natural even in some over enthusiastic, unintelligible truthful witnesses. In para-18 of her cross-examination, PW-3 has admitted that when police came at the scene of offence, she had no talk with police. Not only that but no such talks she had with PW-4, 5 and 6 when they came with police. This part of story is also unnatural and improbable !! She has also admitted that on very next day of the incident, she had married with Malji PW-7 !! In para-21 of the cross-examination she has admitted that she has not stated in her complaint that police personnel arrested Faruk in his naked condition. She has also admitted in para 22 of cross-examination that she did not know as to who were the owners of the building under construction !! She has also admitted that she did not know the name of the place where the alleged incident took place !! Thereafter in the next breath she named the place of offence as Vijaynagar High School - not 'Unnati Vidyalaya' !! In para-23 of cross-examination the defence has put its case, as to how and under what circumstances entirely false case came to be concocted ! She has also admitted in para-24 that at the time when she gave a complaint, 8 accused persons were not present and one had absconded (NOTE : This answer prima-facie appears to be as a result of some tricky question put to PW-3 Savita by the learned advocate for the accused,where she is luckily not trapped when she replied that FARIYAD AAPI TYARE AATHEY AAROPIO HAJAR HATA NAHI PARANTU EK JAN BHAGI GAYO HATO. This to be translated in English means when the complainant was given eight accused persons were not present, but one of them had absconded. The proper question at the most ought to have been - JUO FARIYAD AAPTI VAKHATE AANTHEY AAROPIO HAJAR HATA NAHIN' To be translated into English Look here at the time of giving complaint all eight accused persons were not present. To appreciate xx xxx xxx xxx xxx xxx xxx xxxxx xx xx xx x this important aspect, we may recall here the facts of the case where according to the prosecution, eight accused committed crime out of which one accused managed to escape from the place of the incident, when the police came. In this view of the matter, had indeed PW-3 was little careless her answer in the cross would have been "It is true that at the time of the incident all eight accused were absent " This in turn would have lead of great confusion. As stated above, fortunately witness of her own deposted that - FARIYAD AAPI TYARE AATHEY AAROPIO HAJAR HATA NAHIM PARANTU EK JAN BHAGI GAYO HATO ". It is only with a view to see that witnesses are not confused and misled to give convenient answers resulting into serious miscarriage of justice, and further, the appellate court has also an ample opportunity to know as to answer given is in respect to which question, that in the Criminal Procedure Code, Section 276 has been engrafted which reads as under :- Sec. 276 : Record in trial before Court of Sessions :- (1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer. (3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record. " Now it is true that sub-section (2) of Sec. 276 directs that the evidence shall ordinarily be taken down in form of narrative but at the sametime, it is further provided that the presiding Judge may, in his discretion, take down or cause it to take down any part of such evidence in form of the question and answer. Here the phrase 'may in his discretion' means must when nature of question put to the witness by the learned Advocate for the accused is so complex, compound and placed with a view to confuse him/her and trap and fishout an answer favourable to accused he is required to be duly protected by the trial court. The reason is when a witness is examined in the Court, mostly he being new to the Court atmosphere and accordingly sometimes being over conscious, having quite worried Court complex about his performance even if he is honest and truthful he feels himself naturally quite embarrassed, and accordingly, confused while replying. Under such circumstances, his 'real trial' begins, with beginning of the cross-examination by learned advocate appearing for the accused. Sometimes, for whatever reasons, in his unguarded moment many a time when such complex, compound, tricky mischievous questions are put to him, the answers to which cause unnecessary confusion, resulting into saying something unintended in favour of the accused !!. Many a times attempts are made to put tricky questions making a witness quite embarrassed and confused, and the answer taken out in such unguarded moment are made mountain of mole hill and as a result sometimes accused getting totally unjust and illegal acquittal also ! This creates the real problem for the court while appreciating the evidence, more particularly, the appellate Court before which (no examination of witness has taken place) !! Now tricky, confounding questions are