CR.A/814/1998 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 814 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH 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 ? ========================================================= NATHABHAI SAVJIBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS SADHANA SAGAR for the Appellant. Ms. D.S.Pandit, Addl. PUBLIC PROSECUTOR for the respondent. ========================================================= HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 11/12/2008 CR.A/814/1998 2/18 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) The Appeal is by the original accused of Sessions case no.45 of 1996 decided by the learned Additional Sessions Judge, Panchmahals at Godhra by the judgment and order of conviction and sentence dated 14th August, 1998 whereby the accused came to be convicted for the offence punishable under sections 376 and 506(2) of the Indian Penal Code. The learned trial Judge imposed life imprisonment and fine of Rs. 500/- for the offence punishable under section 376 of the Indian Penal Code, in default punishment is for six months for the said offence. The accused is also imposed rigorous imprisonment for 3 years and fine of Rs. 250/- for the offence punishable under section 506(2) of the Indian Penal Code. In default punishment for the said offence is for three months. It is ordered that the sentences shall run concurrently. The accused was charge- sheeted for the offence punishable under section 366 of the Indian Penal Code. However, there is no formal finding qua the offence, so it is to be considered that he has been acquitted or the said offence. We are informed that there is no appeal by the State against acquittal of the accused for the offence punishable under section 366 of the Indian Penal Code. 2. The appellant (hereafter referred to as the 'Accused') has preferred this Appeal through jail and CR.A/814/1998 3/18 JUDGMENT the same has been admitted by this Court on 8th April, 1999. The learned counsel for the accused Ms. Sadhna Sagar has taken us through relevant record, more particularly, oral as well as documentary evidence led by prosecution in the background of the story unfolded by the complainant victim in the FIR lodged by her on 14th October, 1995 with Fatehpura police station. As Fatehpura police station found that the offence alleged by the complainant has been committed within territory of Santrampur police station, it was transferred for investigation to Santrampur police station. The Santrampur police station investigated the crime and ultimately found that the offences punishable under sections 366, 376 and 506(2) of the Indian Penal Code have been committed and therefore, police charge-sheeted the accused accordingly. The learned Additional Sessions Judge, after recording the evidence and offering the accused an opportunity to explain indiscriminating circumstances emerging from evidence, under section 313 of the Code of Criminal Procedure, reached to a conclusion that the accused is guilty of the charge of offence punishable under section 376 as well as offence punishable under section 506(2) of the Indian Penal Code and sentenced him as mentioned hereinabove. 3. It is submitted by learned advocate Ms. Sadhna Sagar that the finding recorded by the learned Trial Judge is erroneous and is in violation of the CR.A/814/1998 4/18 JUDGMENT accepted principles of appreciation of evidence and therefore, the same deserves to be quashed and set aside. The learned Trial Judge ought to have acquitted the accused observing that there is an element of consent by the victim complainant Lilaben as examined by the prosecution as star witness. It appears that the learned Trial Judge has mainly concentrated, perhaps, on the age difference between victim and the accused and the fact that the victim had been to hospital for taking medicines as she was suffering from fever and the fact that she was kept under threat by the accused for all the period for which the victim remained in the company of the accused. But the learned Trial Judge, according to Ms. Sadhana Sagar, ought to have considered the conduct of the victim and clear conflict in the evidence led by the prosecution to bring home the charge. The accused was facing trial of one case where one lady Shardaben had also lodged similar type of complaint, perhaps, had impressed the learned Trial Judge in linking the accused with the crime, because the case of similar nature qua one Sharda has been referred to by the learned Trial Judge in the last-operative conclusion- part of the judgment under challenge. The status of the victim is of a married woman also has impressed the learned Trial Judge if the reasons assigned by the learned Trial Judge are considered from all relevant perspectives. It is argued that the prosecution was supposed to establish the charge that the accused had intercoursed with the victim against her wish and/or consent. The statement CR.A/814/1998 5/18 JUDGMENT of the accused recorded under section 313 of the Code of Criminal Procedure has been given improper and illogical weightage while appreciating evidence led by the prosecution because the accused had accepted that he had illicit relations(intercourse) with the victim when she was with him. This admission has been wrongly modulated by the learned Trial Judge. The say of Ms. Sagar, in short, say of Ms. Sagar is that there is no sufficient evidence as to commission of rape by the accused on victim lady, namely complainant Lilaben and the accused therefore, deserves acquittal. In the same way, there is no legal satisfactory evidence to show that the accused had ever committed offence punishable under section 506(2) of the Indian Penal Code and therefore, he should also be acquitted from the said charge. 4. We have heard the learned Additional Public Prosecutor Ms. Pandit for State. It is submitted that the learned Trial Judge was satisfied that the victim Lila has unfolded true story before the Court. Undisputedly, she had been to the Santrampur hospital for taking medicines. There is no dispute that she was feeling fever since some days. On the previous day to the date of incident, her husband had also accompanied her upto the hospital, but on the date of incident, i.e. on 29th September, 1995, the victim was alone and when she was sitting on the bench outside the hospital, she was abducted under inducement. After abduction, she was under constant threat of the accused, otherwise there was no reason CR.A/814/1998 6/18 JUDGMENT for a young lady of about 21 to 22 years of age to go in the company of a person having practically double the age. The documents and record received from trial Court reveal that the accused must be of 40 to 41 years at the relevant point of time. Merely because she has moved to more than one place with the accused, would not go against the prosecution. The accused himself has admitted that he did establish physical relations with the victim. So, the learned Trial Judge was supposed to evaluate the version of the complainant victim Lilaben that the said act of the accused was with the consent of the victim or against will or wish of the complainant. According to her, no error can be said to have been committed in accepting version of the complainant. Though complaint has been lodged, after lapse of reasonable period, but it would not go against prosecution. In such a situation, the married lady, if takes some more time in going to police for lodging formal FIR, then it may not be viewed as vital infirmity in the case of the prosecution. It is also submitted that in case where an accused is facing charge of offence punishable under section 376 of the Indian Penal Code, he could be linked with the crime if the Court is satisfied that the victim is telling the truth and only the truth. However, in response to a query raised by the Court, Ms. Pandit has fairly accepted that the complainant ought to have explained why she took about 4 days in going to Fatehpura police station for lodging the FIR. In the same way, the husband of the victim examined by the prosecution has CR.A/814/1998 7/18 JUDGMENT also not explained satisfactorily that whey he went to the police station after lapse of about 6 to 7 days when his wife was missing since 29th September, 1995 because documents on record by the prosecution show that police was informed for the first time about missing of the wife on 6th October, 1995. Learned Additional Public Prosecutor has also accepted that the medical evidence led by the prosecution does not reveal that any marks of violence were noticed by the doctor on the body of the victim Lilaben or the accused. Victim was examined by the Medical Officer, State Hospital, Santrampur, immediately after the complaint, i.e. on 16th October, 1995. The pendency of some case qua one another victim lady Shardaben also would not be relevant and it was obligatory on the part of the prosecution to establish the factum of commission of rape qua the victim complainant, i.e. Lilaben, in the present case. 5. To appreciate these rival contentions, it would be necessary to have a look on the basic facts that were placed by the prosecution and the same are reflected in the charge framed by the trial court at exh. 3. 6. (i) It is alleged by the prosecution that on 29th October, 1995 at 9.00 a.m., the complainant Lilaben was sitting near the hospital on a bench as she had been there to take medicines for fever. At that time, the accused had approached her and induced CR.A/814/1998 8/18 JUDGMENT her that she can get married to anyone of his two younger brothers. One of these two younger brothers is serving with SRP and other one is Police Inspector. The accused had posed himself as a head constable serving at Godhra and under inducement, she was abducted from that place. She was taken initially to a bus stand and other places. Initially she was taken to Zalod in the State Road Transport bus. She had moved with the accused in the market at village Zalod and in the evening, she was taken to village Zanzar through bus and she was kept there for about 5 days. During this stay, the accused raped her twice. It is also the case of the prosecution that from village Zanzar, she was taken to the house of the accused at village Khedapa and she was kept there for seven days. During that stay, the accused committed rape on her and she was threatened that if she attempts to escape, then the accused would inflict grave injuries with a knife. She was also told that the accused may even cut her nose. But on 10th October, 1995, the accused, when went out of the house and had gone to Santrampur, she escaped from the house of the accused and ultimately reached her home on that very day, i.e. on 10th October, 1995. So the prosecution obviously was supposed to establish all these facts by leading cogent and convincing evidence and to prove the charge, the prosecution has mainly examined three witnesses, (1) Medical Officer who had examined the accused as well as victim vide exh. 6 (2) the victim Lilaben herself vide exh. 10 and (3) husband of the victim Arjun Bria vide exh. CR.A/814/1998 9/18 JUDGMENT 30. Other witnesses are procedural witnesses including Investigating Officer PW 4. The prosecution also relies on the medical certificate issued by the Doctor as well as FIR at exh. 11 lodged on 14th October, 1995 and the missing entry recorded by PSO, Santrampur exh. 14 dated 6th October, 1995. PW 2 victim Lilaben has mainly deposed as per the complaint given by her. She has stated that on all the occasions, the accused intercoursed with her under threat and coercion. She was all the while denying to establish such physical relations but the accused was forcibly dragging her and was giving threat to her. 7. If evidence of victim is closely read, there are material contradictions if her deposition is read in the background of the FIR given by her. However, she has stated that the complaint exh. 11 is a complaint given by her. It emerges from the complaint that she was not a rustic illiterate lady. She has studied upto 9th standard, meaning thereby that she was once a high school going girl and on the date of the incident, she was a matured woman aged about 21 to 22 years of age and a married lady. In this background, the evidence was required to be evaluated and according to us, the learned Trial Judge has committed grave error in appreciating the version of the complainant, more particularly in the background of conduct of the complainant. As mentioned earlier, medical evidence led by the prosecution does not lead case of the prosecution any CR.A/814/1998 10/18 JUDGMENT further as obviously there is no direct evidence of commission of rape on the physique of the victim or accused. According to us, it is not necessary to discuss the nature of medical evidence led by the prosecution. Even the learned Trial Judge has not concluded that the medical evidence in any way, helps the prosecution in bringing home the charge. 8. It is relevant to note that other material witness, husband of the victim has been examined, but this witness has not stated anything qua the story unfolded by the victim while on return to home. Normally, if the wife is a victim and sexually exploited by a third person, that too, by a person having double the age, would inform the husband, at least, for explaining as to how she was missing and how she was kept by the person who had confined her or wrongfully restrained her. But from plain reading of the deposition of this witness PW 3 Arjunbhai Baria, nothing is emerging. This witness has simply proved one fact that his wife was missing since 29th September, 1995 since she had left for taking medicines from the hospital at Santrampur. It appears that the victim was residing at village Juni Talavadi with her husband. There is no evidence as to the distance between village Juni Talavadi and Santrampur. If this Juni Talavadi is an area of Santrampur, then it was easy for the prosecution witness-husband Arjunbhai Baria to ascertain about whereabouts of his wife who had left for hospital in the early morning on 29th September, 1995. But this witness has simply proved the missing entry given by CR.A/814/1998 11/18 JUDGMENT him and the photograph of his wife that was given to the police. On the contrary, this witness has stated that his wife was brought to police station and the accused was also brought to Santrampur and both of them were sent for medical examination. This version is in clear conflict with the story told by the victim that she had escaped from the house of the accused and went to her husband on 10th October, 1995 and the case of the prosecution is that the victim was induced when she was sitting on the bench outside the hospital of Santrampur at 9.00 a.m. on 29th October,1995. But it appears that she had told her husband that she was taken away by the accused by putting her under some saddation and for that some inducement was also made. This witness has stated that the accused had kept the victim as his wife. The husband himself has not narrated anything which can be used as corroborative piece of evidence, qua the claim of the victim that she was forcibly raped and physical relations were established on occasions against her will and by force and under threat. On the contrary, during the course of cross- examination, he has shown his ignorance as to whether his wife had left him and the house as per her wish and she was staying as the wife of the accused. 9. In view of the nature of evidence led by the prosecution, it is not possible for us to agree with the finding recorded by the learned Trial Judge as the same is based on incorrect appreciation of evidence. We have considered the following aspects. CR.A/814/1998 12/18 JUDGMENT (i) The victim Lilaben PW 2 examined by the prosecution was legally wedded wife of PW 3 Arjunbhai and therefore, there was no reason for her to come under inducement if she was induced by the accused to offer a happy married life with one of his brothers. She could not have accepted such offer even if the same would have been made. The victim Lilaben was comparatively a literate lady having studied upto 9th standard and having mature age of 21 to 22 years. (ii) It is not in evidence that the accused was in uniform and at one place it has come on record that the accused had told the victim that his brother is a teacher. In the complaint, it is the say of the prosecution that both the brothers were said to have been serving with Police Department, one with SRP and one as Police Inspector. It emerges that she had voluntarily left the hospital and bench on which she was allegedly sitting and had gone in the company of the accused upto Santrampur ST depot. Whether an educated prudent married lady would have joined the company of the accused, when she had been to hospital to have medicines for herself only, is question which was required to be answered by the prosecution. (iii) The victim has moved with the accused in a ST bus from Santrampur ST depot to Zalod. She had taken some snacks in the hospital at Zalod. She had moved in the market at Zalod till 5.00 p.m. in the evening and from there she again boarded bus with the accused and stayed at village Zanzar at the residence of one relative of the accused for five days. She has CR.A/814/1998 13/18 JUDGMENT kept silence as to number of family members of such relatives and other housing facilities etc. It was possible for her to complain against accused when she was at village Zanzar because it is not the say of Lilaben that there was nobody in the house where they have stayed for five days. On the contrary, the version is that she was taken at the house of one relative and she was kept there for five days and after stay of five days at village Zanzar, she had again left that house and went with the accused at the residence of the accused at village Khedapa. She remained with the accused for about seven days. There is nothing on record to show that how many members are there in the family of the accused. Nothing is disclosed by this victim about persons residing in the neighboring area nor location of house, whether house of the accused is in a field at a big distance from normal residential area of village Khedapa. So, it is clear that the victim Lila has attempted to suppress number of relevant aspects that she could have even told police at the time of lodging of the FIR and in the Court also while deposing against the accused. There is conflict about type of weapon referred to in the complaint as well as in the deposition. She has referred Dharia and knife and Dharia in the complaint and in her deposition, she has referred only knife because it is the say of the prosecution that the accused was giving threats of use of weapon so that she could be confined in the house of the accused. There is no evidence as to the distance between village Khedapa and the village of CR.A/814/1998 14/18 JUDGMENT the victim complainant, i.e. village Juna Talavadi. Whether she had boarded any vehicle or had gone on her own by foot are the questions which were required to be explained by the prosecution and the are not found explained. 10. Undisputedly, the victim had returned to her husband on 10th October, 1995, but there is conflict whether she had voluntarily reached to her husband or she was taken by the police in the company of the accused is a question which is found unresolved if the finding recorded by the learned Trial Judge is read thoroughly. This material conflict between two prosecution witnesses, namely victim herself and her husband PWs 2 and 3 makes the version of the complainant doubtful. It appears that she had never returned to her husband on 10th October, 1995. But she was taken by police on 10th October, 1995 in the company of the accused and her husband PW 3 simply informed that his missing wife was traced by police. For the sake of argument, if we accept that she had returned to her husband on 10th October, 1995, then also, where she stayed about four days is also a question. It can reasonably be, inferred that she must have stayed with her husband and there was no reason for police to restrict her movement. The police may have permitted to go with her husband on 10th October, 1995. Thereafter, upto four days, i.e. upto 14th October, 1995 no formal complaint was lodged by her. In this background, the argument advanced by Ms. Sagar about lodging of the complaint CR.A/814/1998 15/18 JUDGMENT at a belated stage becomes relevant. It is settled that delay in lodging FIR is a circumstance against prosecution and the prosecution is supposed to explain delay caused in filing the complaint. According to us, this is a case of unexplained delay and therefore, FIR given by the complainant should be viewed with doubt. When the learned Trial Judge has not convicted the accused under section 366 of the Indian Penal Code, then it is not possible for us to infer that the learned Trial Judge was, at least convinced that this is not a case of abduction punishable under section 366 of the Indian Penal Code. Thus, backbone of the story of the prosecution automatically gets broken. It is the duty of the prosecution to see that substrata of the story remains intact while leading evidence and the prosecution cannot build up a new or fresh story. Here, complainant victim has attempted to do so and the learned Trial Judge has failed in appreciating the major deviation made by the victim to conceal her conduct and other aspects which are relevant to bring home charge of the offence punishable under section 376 of the Indian Penal Code. 11. The accused was supposed to show only probabilities and he has tried to show that probability while answering questions posed by Court during her examination under section 313 of the Code of Criminal Procedure and has stated that wife of PW 3 Arjunbhai Baria victim Lilaben had accompanied the accused voluntarily. She had stayed with the accused CR.A/814/1998 16/18 JUDGMENT voluntarily and physical relations between him and the victim were never with force. It is the say of the accused that as per wish and her consent only he had established physical relations with Lilaben and thus Lilaben PW 2 cannot be even termed as victim of the offence punishable under section 376 of the Indian Penal Code. Merely because PW 2 Lilaben was having fever on the date of incident or she was a legally wedded wife of PW 3 would not make the offence which is required to be proved by the prosecution. Rape is defined in the law and section