CR.A/425/1999 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 425 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= KHUMANSINH @ JUGO @ RAMESH AMBALAL CHAVDA & 1 - Appellants Versus STATE OF GUJARAT - Opponent ========================================================= Appearance : MS MONA B RAVAL WITH MR BS SUPEHIA WITH MR PM VYAS WITH MS REKHA H KAPADIA for the Appellants. MR PD BHATE, ADDITIONAL PUBLIC PROSECUTOR for the Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE DN PATEL Date : 23/06/2008 CR.A/425/1999 2/25 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) 1. The present appeal has been preferred against the judgment and order dated 30th March, 1999 in Sessions case No. 298 of 1998 passed by the learned Additional Sessions Judge, Kheda at Nadiad, whereby the present appellants have been convicted for the offences punishable under Sections 302, 363, 366 and 376 of the Indian Penal Code. The sentence awarded to the appellants is as under: Accused no.1 was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 1000/-, in default, to undergo further rigorous imprisonment for two years for the offence punishable under section 302 of the Indian Penal Code. The appellant no.1 was sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for six months for the offence punishable under section 307 read with section 34 of the Indian Penal Code. The appellant no.1 was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for two years for the offence punishable under section 376(2)(G) of the Indian Penal Code. The appellant no.1 was sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for one year for the offence punishable under sections 363, 366 read with CR.A/425/1999 3/25 JUDGMENT section 34 of the Indian Penal Code. The appellant no.1 was sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for three months for the offence punishable under section 365 read with section 34 of the Indian Penal Code. The appellant no.1 was sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for six months for the offence punishable under section 372 of the Indian Penal Code. The appellant no.2 was sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for three months for the offence punishable under section 307 read with section 34 of the Indian Penal Code. The appellant no.2 was sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for six months years for the offence punishable under section 376 read with section 114 of the Indian Penal Code. The appellant no.2 was sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for six months for the offence punishable under section 372 of the Indian Penal Code. The appellant no.2 was sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for one month for the offence punishable CR.A/425/1999 4/25 JUDGMENT under sections 363, 366 of the Indian Penal Code. The appellant no.2 was sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 500/- in default, to undergo further rigorous imprisonment for fifteen days for the offence punishable under section 365 of the Indian Penal Code. 2. Brief facts of the prosecution case are as under: It is the case of the prosecution that on 23rd May, 1998, the complainant-prosecutrix was kidnapped alongwith her sister by the present appellants. Thereafter, they were taken to various places as referred in the FIR and were compelled to have several intercourse. It is also a case of prosecution that the appellant No.1 and other accused had committed rape on the complainant. Accused caused murder of Raziabanu - sister of prosecutrix. The complainant was also thrown in the gutter line wherefrom she was rescued by the prosecution witness Nos.14 and 15. Thereafter, FIR was registered on 9th July,1998. Investigation was carried out, charge- sheet was filed and the present two appellants, alongwith other two accused were prosecuted. The appellants have been punished as stated hereinabove, whereas, rest of the accused have been acquitted. Against this judgment and order of conviction, the appellants have preferred the present appeal. 3. We have heard the learned counsel for the appellants, who have mainly stated that the prosecution has failed to prove, beyond reasonable CR.A/425/1999 5/25 JUDGMENT doubt, the offences as alleged against the appellants. There is no evidence of rape committed by the appellant No.1 upon the complainant, nor there is any evidence of murder committed by the present appellants and sister of the present complainant. There is no link between appellants and murder of Raziabanu. There is no eye witness nor chain of circumstances has been completed and proved by the prosecution. It is also contended by the learned advocate for the appellants that evidence of the prosecutrix inspires no confidence and, therefore, assurance is required from the other circumstances or evidence directly or indirectly. It is also submitted by the learned advocate for the appellants that the prosecutrix has not narrated anything in her FIR about rape committed by appellant No.1. She has improved case in her deposition which is a material improvement. Likewise, the prosecutrix has not narrated about committing rape before prosecution witness Nos.14 and 15 who have rescued her as per her allegations nor has she stated anything before Doctor about rape committed by appellant no.1. It is alleged by the prosecutrix that she was with the appellants for several days. She was knowing the names of the appellant, but she has never stated the names of the appellants before anyone. It is also contended by the learned advocate for the appellants that neither medical evidence nor FSL report is corroborating the allegations propounded by the prosecutrix against the appellants and, therefore, the order of conviction and sentence requires to be quashed and set aside. 4. We have also heard the learned Additional CR.A/425/1999 6/25 JUDGMENT Public Prosecutor on behalf of the State, who has mainly submitted that looking to the deposition of the prosecutrix, the case of the prosecution is established beyond reasonable doubt which proves the offence against the present appellants. There is no need of any corroboration, once clear version is given by the prosecutrix. It is also submitted by the learned Additional Public Prosecutor that looking to the deposition of the prosecution witnesses, especially of P.W.Nos.1 and 2, who is prosecutrix and brother of the prosecutrix, respectively and also looking to the evidence given by the Doctor and independent witness Nos.14 and 15, the offence of rape and murder has been proved beyond reasonable doubt against the present appellants. Even in test identification parade, the prosecutrix has identified the present appellants. Looking to the totality of the prosecution evidence, the order of conviction may not be altered by this Court. 5. Having heard the learned advocates for both the sides and looking to the evidence on record, the judgment and order dated 30th March, 1999 in Sessions case No. 298 of 1998 passed by the learned Additional Sessions Judge, Kheda at Nadiad, requires to be quashed and set aside for the following facts and reasons: (i) The offence has taken place on 23rd May,1998. It is the case of the prosecutrix that she was knowing the appellants even before they left the house. The prosecutrix as well as her sister Raziabanu left the house in search of work to assist their brother who CR.A/425/1999 7/25 JUDGMENT is the only earning male member in the family. (ii) Looking to the deposition of the prosecutrix at Exh.12, it is stated by her that they left the house on their own. It was a pre-meditated action on their part. It is also stated by her that in her deposition that they have left the house to assist their brother financially. They left house with some additional cloths and with some money. They were in search of work and they reached at Mahemdabad railway station. They met the present appellants at Mahemdabad railway station. Thereafter, they had gone to village known as Uttarsanda (1st place) where they (prosecutrix as well as her sister) resided for about 10 days and they worked in the field. Thereafter they had gone to another village (2nd place) by rickshaw and they were residing in one house. There they stayed for about five to six days. Thereafter, again they have travelled from that village to a field of tobacco at village: Vadod (3rd place) and there they worked for few days. It is also stated by the prosecutrix in her deposition that from that tobacco field, they had gone to Anand city (4th place) and from Anand, they had again returned to tobacco field. Again they stayed for few days. Thereafter again from tobacco field, the prosecutrix had gone to Anand. It is alleged by her that she was taken to the hotel (5th place) where she was raped by unknown persons. Again thereafter, the prosecutrix had travelled to Vadodara (6th place). From Vadodara, it is stated by her that she was taken in one tempo vehicle and she was walking alongwith the present appellants for three to four kms. at about 2 to 3 CR.A/425/1999 8/25 JUDGMENT a.m. night hours and thereafter, she was thrown in a gutter line. At about 7.00 a.m., she was rescued by P.W.14, who had thereafter, taken her to prosecution witness No.15. Looking to this narration of facts in her deposition, it appears that the prosecutrix as well as her sister had visited several places from Mahemdabad, thereafter at Uttarsanda, thereafter at one more village name of which has not been given, thereafter at field of tobacco at village: Vadod, fourthly at Anand city, fifthly at a hotel, then at Vadodara (6th place). Thus, travelling was done through several types of vehicles, i.e. by train, by a tempo, by rickshaw and, then, she has narrated that she had also walked for 2 to 3 kms. alongwith appellants. Nowhere she has shouted nor she has narrated that she and her sister were kidnapped by the appellants. In train, there must be several persons. In tempo, there must be several other persons. The place at which she had done labour work, as per her narration in her deposition, several persons whom she must have met. But never any complaint was made, neither by the prosecutrix nor by her sister Raziabanu about their kidnapping by the appellants. There is no evidence by any prosecution witness that these girls have ever complained about their kidnapping or rape before any prosecution witness. 6. Same is the case with the prosecutrix so far as allegation of rape is concerned. Looking to her deposition, it is stated that she was residing with the appellants for several days at several places. After several days of offence, FIR was CR.A/425/1999 9/25 JUDGMENT registered. As stated hereinabove, the offence has taken place on 23rd May,1998 whereas FIR was registered on 9th October,1998. Despite the fact that she was knowing the names of the accused, she has never stated the fact of rape before the prosecution witness No.14 who had rescued her first in point of time from gutter line as stated by her nor she has given the names of the accused before prosecution witness No.15 before she was taken by P.W.14. Likewise, the allegation of rape was also not revealed against the appellants by the prosecutrix before the doctor by whom she was examined i.e. before prosecution witness No.13. Prosecution witness No.13 Dr.Naishyat Bhanubhai Bhatt has issued a certificate after examining prosecutrix, is at Exh.40. It is stated by Doctor in the case history that prosecution had sexual intercourse on 7.7.1998 by somebody. She had intercourse by different men. She does not know the names. The doctor has also observed in the certificate that no external injuries are seen on her body. No external injuries on her private part. No semen on clothes nor on pubic hair and hymen was ruptured. She had intercourse in past also. These are the observations in the certificate issued by the doctor after examination of the prosecutrix. 7. It is also stated by the prosecutrix in her deposition that she and her sister were taken by the accused and the present appellant No.1 was treating them as sisters, as per the cross-examination of the prosecutrix. It is also stated by her that at certain places, they were kept separately in separate room. CR.A/425/1999 10/25 JUDGMENT Looking to the FIR, there is no allegation against the appellant No.1 that she was raped by the appellant No.1. Looking to the deposition of the prosecutrix, it is not the case of the prosecutrix in her examination-in-chief that she was ever raped by appellant No.1. Even during the cross-examination, there was no such case of the prosecution. Looking to her deposition, it is only upon query raised by the court, it is answered by the prosecutrix that the appellant No.1 had sexual intercourse with the prosecutrix against her desire, which is before she was thrown in a gutter line. Looking to this deposition, FIR and her silence before the prosecution witness Nos.14 and 15 as well as before Doctor-P.W.13 and looking to the improvements made by her in her deposition, her deposition inspires no confidence. It requires assurance (if not corroboration) from other circumstances or evidence as per the decisions rendered by the Hon'ble Supreme Court in the cases reported in (i) (2007)1 SCC (Criminal) 161 (ii) (2007)1 SCC (Criminal) 546 (iii) (2007)1 SCC (Criminal) 198 and (iv) (2008)2 SCC (Criminal) 207. 8. Looking to the deposition of prosecution witness No.2, who is the brother of the complainant, he has narrated the facts which were stated by the complainant to him. It also appears that after the prosecutrix as well as her sister or sister of prosecution witness No.2 namely Raziabanu left the house on 23rd May,1998, no complaint was ever made by this P.W.No.2 before anyone, neither before neighbours nor before relatives nor before other CR.A/425/1999 11/25 JUDGMENT village people, much less before police. It is stated by P.W.2, brother of the complainant that as police came from Mahemdabad Police Station, he had gone to police station, where he saw his sister. 9. Looking to the deposition of P.W.3 Chhanabhai Dhulabhai Chauhan, who is a panch witness of panchnama of clothes of Accused No.1 and of scene of offence panchnama, which are at Exhs.16 and 17. P.W.No.4 namely Amarsinh Babarbhai, who is a witness of panchnama of clothes of the complainant, which is at Exh.19 and also a witness of panchnama (Exh.20) of gutter line (canal), from where, the complainant was rescued by P.W.14. It is also stated by this witness that there was water in this gutter line upto the level of 7 ft.. P.W.5 Arjunbhai Chhanabhai Barot, who is panch witness of place, where the present appellants were residing, which is also a place at which rape was committed by several persons. This panchnama is at Exh.22. P.W.6 is the panch witness of test identification parade, namely Mumtazbanu Riyazahmed. It is stated by this witness that the present appellants were identified by the prosecutrix in test identification parade. 10. P.W.No. 7 is Sureshbhai Radhavprasad, who is a hostile panch witness of clothes of the deceased Raziyabanu. It is stated by him that there was no person present before police and no photographs of the dead body were shown to him nor the clothes of the deceased were identified by anybody. 11. The prosecution witness No.8 is Pintukumar CR.A/425/1999 12/25 JUDGMENT Kalyanprasad Aggrawal, who is also a panch witness of the clothes of the deceased, who has also been declared hostile witness. Thus, he is not supporting the panchnama drawn at Exh.27. 12. The next prosecution witness is P.W.No.9 Icchaben Udesing. It is stated by her that she does not know the appellant No.1. She has been declared hostile. The prosecution witness No.10 is Rajeshbhai Dahyabhai, who is the owner of tobacco field. It is stated by him that the prosecutrix as well as another girl were working in his field and present appellant Nos.1 and 2 had brought the prosecutrix as well as her sister for work. They were residing in a separate room. This witness has not stated that prosecutrix or her sister had made any complaint of kidnapping or rape by any one before him. It is stated that these girls and appellants were residing in a room allotted to them and were working in tobacco field. P.W. No.11 is Minaben Rajnikant Dave, who has accepted various parcels and samples in sealed condition from Mahemdabad Police Station. Serologist's report was drawn by her, which is at Exh.33. Likewise, another report was also prepared and signed by her at Exh.32. Looking to this FSL report, clothes of prosecutrix were not having blood marks of group of appellant No.1 nor there was any mark having semen. Mark "P" underwear of deceased. Mark "M" "kurta" of prosecutrix - complainant. No semen is found. Blood group is uncertain. Sample of semen of accused- appellant no.1 was not taken. no analysis report. Vaginal swab of deceased Narg's was not taken as per cross-examination of Doctor -P.W.13, otherwise it CR.A/425/1999 13/25 JUDGMENT would have helped in identifying it is of which accused spermatozoa. No marks of semen on clothes of prosecutrix. Looking to these documents at Exhs.32 and 33, from the clothes of the deceased, it cannot be said that the offence of rape was committed by the present appellant No.1. P.W.No.12 Mohmedhasim Habibmiya Gandhi, who is the Executive Magistrate, before whom, test identification parade was carried out. It is stated by him that the prosecutrix had identified accused and panchnama was drawn at Exh.67 by him. 13. P.W.No.13 is Dr.Naishyat Bhanubhai Bhatt, who had examined the prosecutrix on 10th July 1998. Looking to his deposition, it is categorically stated by him that when the prosecutrix was examined, she had stated that she was raped by different persons and on 7th July,1998 at night hours, somebody had sexual intercourse with her. She had not given any name to him. It is to be noted that as per the allegations levelled by the prosecutrix, the present appellants had taken the complainant as well as her sister and appellant No.1 had committed rape upon complainant. Nowhere name was given by her of the appellant No.1, not even before this P.W.No.13, though she was knowing appellants and though she has stayed with them at several places and for several days, as per deposition of prosecutrix. No external injuries were found by this Doctor. The certificate is also given by this witness at Exh.40, which also reflects that in the case history, she has not stated the name of the present appellant No.1. It is also observed in the said certificate at Exh.40 that no CR.A/425/1999 14/25 JUDGMENT external injuries were found on her body. No injuries on her private part. No semen on clothes was found nor on pubic hair and hymen was ruptured. 14. P.W. No.14 Fatesinh Jethabhai, who is the witness, who has rescued the prosecutrix from gutter line, where she was thrown by the present appellants, as per the deposition of the prosecutrix. She was thrown in the gutter line at about 3.00 a.m., as per P.W.No.1. She remained in the gutter line upto morning hours and after 7.00 a.m., she was saved by this P.W.No.14. Thereafter, this witness had taken her to the prosecution witness No.15. Before this P.W.No.15 also, the prosecutrix has not stated the name of the present appellants, though she had stayed with them at several places for several days as stated in her deposition at Exh.12. 15. P.W. No.15 Amrasinh Babarbhai, who states that P.W.No.14 brought the prosecutrix before him. He has identified her from the photographs of the prosecutrix. This witness states that the prosecutrix had not stated anything before him that how she fallen/ thrown in gutter line and who threw her in the gutter line. Though this witness asked her specifically, no name was given by the prosecutrix nor any fact of rape was ever stated by this prosecutrix before P.W.14 or P.W.15. There is not a single avernment or statement that the prosecutrix had narrated the story of rape or other offence committed by the present appellants were narrated before these two witnesses, who met her for the first time, after she was rescued from the gutter line. CR.A/425/1999 15/25 JUDGMENT 16. P.W.No.16 Rajamanikam Odiya who is the witness who has seen the dead body of the deceased Raziyabanu on railway lines. This witness is serving in Railway department and his duty is to check railway lines from Nandesari to Vasad bridge and while checking these railway lines at bridge No.621, he saw dead body of Raziyabanu and thereafter, police was informed by Nandesari Station Master and this is how dead body of Raziyabanu was found out. P.W. 17 is the teacher of the School, who has presented the birth certificate of the prosecutrix at Exh.49, which reveals the fact that the birth date of the complainant as 20.11.1980 and that of the deceased as 5th February,1978. P.W.Nos.18 and 19 are witnesses, who have witnessed photographs of the deceased taken by the photographer and of railway line wherefrom the dead body of Raziyabanu was found. 17. P.W.21 is Dr. Vijaysinh Ganpatsinh Rathod, who has carried out postmortem of the deceased Raziyabanu. Postmortem was carried out on 6th July, 1998. It is stated by this witness that there were external injuries which were referred in column no.17 of the postmortem notes. There were marks of injuries and the neck of the deceased having contusion of 8 x 7 cm. There was a fracture of hyod bone and the cause of death was due to strangulation. Thus, death of Raziyabanu was homicidal and injuries were ante mortem as stated by him in his deposition. P.W.No.23 is police witness Ramsinh Fulsinh Dabho, who has investigated the case, who has collected various evidences and sent for FSL report. He has also drawn CR.A/425/1999 16/25 JUDGMENT various panchnamas of clothes of the accused, prosecutrix and of deceased Raziyabanu. 18. Looking to the cumulative effect of the evidence of these prosecution witnesses, it appears that as per the prosecutrix, the present appellants were known to the prosecutrix and her sister even before she and her sister left the house. The facts narrated in the FIR are different than her deposition. Never she has stated in the FIR that the appellant No.1 has committed rape upon her, whereas in her deposition, the prosecutrix has stated that when query is raised by the court that she was raped of appellant No.1. This is an improvement. This is a material deviation from her FIR. Such an important aspect of the matter no lady would forget to mention in the FIR. Secondly, she has stated that both the sisters had gone at various places with