OCC/9/2004 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 9 OF 2004 WITH CRIMINAL APPEAL NO. 1915 OF 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= 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 ? ========================================= STATE OF GUJARAT - Appellant(s) Versus RATANSINH @ CHINUBHAI ANOPSINHCHAUHAN - Respondent(s) ========================================= Appearance : C.C. No.9 of 2004 MR ND GOHIL, APP, for the State. MR MJ BUDDHBHATTI with MR JITEN M. BUDDHBHATTI for the Accused. Criminal Appeal No.1915 of 2004 MR MJ BUDDHBHATTI with MR JITEN M. BUDDHBHATTI for the Accused. MR ND GOHIL, APP, for the State. ========================================= OCC/9/2004 2/42 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 14/09/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Learned Additional Sessions Judge and Second Fast Track Court Judge, Panchmahals, at Godhra, decided Sesisons Case No.4 of 2004 on 7th October, 2004 and convicted Ratansinh alias Chinubai Anopsinh Chauhan for the offences of rape and murder of minor-K, allegedly, committed by him on 16th August, 2003, at about 15.00 hours, at Mota Falia, at Village Bhamaiya of Godhra Taluka of Pamchmahals District. The Trial Court awarded capital punishment for the offence of murder and imprisonment for life and fine of Rs.1000/- for the offence of rape and, in default in payment of fine, ordered the convict to undergo simple imprisonment for a period of three months. The case came to be referred to this Court to consider the question of confirmation of OCC/9/2004 3/42 JUDGMENT capital punishment and Criminal Confirmation Case No.9 of 2004 came to be registered in this Court. The convict-Ratansinh alias Chinubhai Anopsinh Chauhan challenged the judgment and order recording his conviction by preferring Criminal Appeal No.1915 of 2004. As these two matters arise out of the same judgment, they are heard together and are decided by this common judgment. 1.1 The convict is referred to as “the accused” and the victim girl (deceased) is referred to as “the victim” in this appeal. 2. The prosecution case, in brief, can be stated thus:- 2.1 Ratansinh alias Chinubhai Anopsinh Chauhan, the accused is a resident of Village Bhamaiya and stays in Mota Falia area. On the day of incident, i.e. on 16th August, 2003, it is alleged that at about 15 hours, while the victim was playing with her friends in the courtyard of the accused, the accused scolded them, as a result, the two friends went away and the accused pushed the victim into his house and shut the door. This was seen by P.W.16- Shakariben Chandrasinh. Thereafter, a cry of the victim praying OCC/9/2004 4/42 JUDGMENT for help was heard by P.W.16-Shakariben. Nothing happened thereafter, but on the next day, dead body of the victim was found from a nearby field. The dead body was wearing a white frock and no undergarments. The undergarment of the victim was found from the hedge falling between the house of the accused and one Chandrasinh. An offence was registered and investigation started. During the course of investigation, statements of various witnesses were recorded including that of Sarojben alias Bhuri, Shobanaben, Chandubhai, Himatbhai, etc. Sarojben alias Bhuri is a child witness, who was playing with the victim just before the incident. The police collected samples, etc. from the place of incident and, ultimately, the accused came to be arrested on 19th August, 2003. When he was arrested, a suicide note allegedly written by the accused was recovered from his pocket. He was found to have sustained some injuries on his person, which were recorded in the arrest Panchnama. He was sent for medical examination also. The postmortem of the dead body of the victim was also got performed. Ultimately, the investigating agency having found sufficient material to connect the accused with the crime, filed charge sheet in the Court of learned Chief Judicial Magistrate, Godhra. The OCC/9/2004 5/42 JUDGMENT learned Chief Judicial Magistrate committed the case to the Court of Sessions and Sessions Case No.4 of 2004 came to be registered. 2.2 Learned Judge of the Trial Court framed charge at Exhibit 3. The accused pleaded not guilty to the charge and claimed to be tried. After recording the evidence led by the prosecution, the Trial Court recorded statement of the accused under Section 313 of the Code of Criminal Procedure and, ultimately, found him guilty of the offences punishable under Section 376, 302 and 201 of I. P. C. and awarded sentence as stated above. No separate sentence was awarded for the offence punishable under Section 201 of I. P. C. 3. Learned Advocate, Mr. Buddhbhatti, appearing for the accused in both the matters has contended that the prosecution case depended on circumstantial evidence as there was no eye- witness to the incident. The prosecution relied on and the Trial Court accepted the circumstances to be leading to exclusive hypothesis of guilt of the accused where the Trial Court committed an error. According to Mr. Buddhbhatti, the Trial Court has taken OCC/9/2004 6/42 JUDGMENT into consideration certain circumstances while accepting the chain to be complete which, in fact, are not proved on record. Mr. Buddhbhatti submitted that the evidence in support of the circumstances of last seen together is not cogent or reliable. He submitted that to prove the case of last seen together, the prosecution has examined Shakariben (Exhibit 49), Sarojben (Exhibit 44) and Shobhanaben (Exhibit 47). Mr. Buddhbhatti submitted that evidence of these witnesses does not inspire any confidence. Shakariben, though claims to have seen accused forcibly pushing the victim into his house, has not raised any objection or hue or cry in that regard. The matter does not end there, but she claims that after some time, she heard a cry of the victim praying for help. Still she does not take any action. When on the next day body was discovered, then also this witness does not say anything to anyone, not even to her husband. She does not say anything even though her son-Dasharath was apprehended by police and kept under custody for about two days. It is only on 18th August, 2003 that, for the first time, she states before police about having seen the accused pushing the victim into his house forcibly. Mr. Buddhbhatti submitted that, likewise, if evidence of Sarojben is OCC/9/2004 7/42 JUDGMENT seen, she says that she was playing with the victim just prior to the accused scolding them on the day of the incident. She then says that the accused sent the victim to purchase a packet of Vimal Masala. She also claims that she saw the victim, thereafter, going with a packet of Vimal Masala. The prosecution has then examined Himatbhai, who is a shopkeeper and he states that the victim had come to his shop on the day of incident at about 3.15 P.M. and purchased some eatables. Mr. Buddhbhatti, therefore, submitted that these three pieces of evidence are inconsistent with each other and wipe out the evidence of each other. 3.1 Mr. Buddhbhatti submitted that, if the medical evidence is seen, there were maggots found in the body. The postmortem was performed by the doctor on 17th August, 2003 between 16.15 hours and 17.45 hours, i.e. within about 25 to 26 hours of the alleged time of the incident. The dead body could not have developed maggots in such a short time and, therefore, the time of death must be prior to the alleged time of death. 3.2 Mr. Buddhbhatti submitted further that during the OCC/9/2004 8/42 JUDGMENT course of investigation, dog squad was called and the dog tracked to the house of Dasharath Chandrasinh, son of Shakariben. It has come on record that Dasharath was taken by police as a suspect and kept under custody for about two days. However, what happened during these two days is not disclosed by the Investigating Officer. On the contrary, he denies to have apprehended Dasharath and kept him under custody for two days. The investigation is, therefore, not honest. Mr. Buddhbhatti submitted that even if we accept that Dasharath was not apprehended or kept under custody for two days for interrogation, as per the say of the Investigating Officer, when the dog squad tracked to the house of Dasharath, the Investigating Officer ought to have investigated into the direction of possibility of involvement of Dasharath in the incident. 3.3 Mr. Buddhbhatti submitted that the arrest Panchnama of the accused indicates some injury on the private parts of the accused. He was immediately, thereafter, sent to doctor for examination and the doctor did not find any injury on the private part of the accused. OCC/9/2004 9/42 JUDGMENT 3.4 Mr. Buddhbhatti also contended that the evidence of doctor who performed the postmortem makes it clear that there was no penetration and, as such, no case of rape could be said to have been established. 3.5 It was also contended by Mr. Buddhbhatti that the vaginal swab indicates presence of blood with semen and there is no evidence to show any bleeding injury on private part of the victim. The presence of blood in the vaginal swab, therefore, would remain unexplained. It was also contended that, F. S. L. Officer was summoned on 19th August, 2003 and the stone alleged used in commission of the murder was recovered on that day, as can be seen from the report of the F. S. L. Officer as well as his deposition. Still the Investigating officer has drawn discovery Panchnama on 20th August, 2003 and then on 22nd August, 2003, when the accused is alleged to have discovered the stone used inflicting injury on head of the deceased, which was the cause of her death. OCC/9/2004 10/42 JUDGMENT 3.5 Learned Advocate, Mr. Buddhbhatti, submitted that no semen stains were noticed on the clothes of the deceased as well as the accused when the Panchnama was drawn. However, in the F.S.L. report somehow semen stains are noticed. Mr. Buddhbhatti submitted that the Trial Court has considered the alleged bad character of the accused as one of the circumstances against him, which is an error of law. 3.6 Mr. Buddhbhatti also submitted that the Trial Court has relied on the suicide note recovered from pocket of the accused along with other circumstances. However, according to Mr. Buddhbhatti, the suicide note does not connect the accused with the crime even remotely. The suicide not is, in fact, an evidence in favour of the appellant, which is overlooked by the Trial Court. 3.7 Learned Advocate, Mr. Buddhbhatti, in support of his contentions, relied on the following decisions :- (1) Shankarlal v. State of Maharashtra, AIR 1981 SC 765. (2) Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 OCC/9/2004 11/42 JUDGMENT SC 1622. (3) Ramesh Babulal Doshi v. State of Gujarat, AIR 1996 SC 2035. (4) Surinder Pal Jain v. Delhi Administration, AIR 1993 SC 1723. (5) Koli Makod Khoda v. The State of Gujarat, 1986(1) Crimes 513 (Gujarat). (6) State of U. P. v. Desh Raj, (2006) 2 SCC (Cri.) 489. 3.8 Learned Advocate, Mr. Buddhbhatti submitted that the prosecution evidence does not establish each circumstance to connect the accused with the crime by cogent evidence. The evidence does not lead to an exclusive hypothesis of guilt of the accused and none else. The chain, therefore, is incomplete and, therefore, the possibility of the accused being falsely implicated cannot be ruled out. The conviction is, therefore, erroneous and may be set aside and the accused may be acquitted of the charges levelled against him by allowing Criminal Appeal No.1915 of 2004. 4. Learned Advocate, Mr. Budhbhatti, submitted that the OCC/9/2004 12/42 JUDGMENT accused challenges the conviction itself for the reasons submitted by him and, therefore the conviction may not be upheld. In the event the Court comes to the conclusion that the conviction is justified, then also this will not be a rarest of rare case where capital punishment is required to be awarded. The Trial Court has not followed the procedure properly and awarded capital punishment without undertaking the exercise of balancing the mitigating and aggravating factors while awarding capital punishment. The Trial Court has not recorded any special reasons to show that unless capital punishment is awarded, justice will not be done to the society as the accused is a menace to the society. Mr. Buddhbhatti submitted that the capital punishment, therefore, may not be confirmed and the Confirmation case may be dismissed. 5. Learned Additional Public Prosecutor, Mr. Gohil, submitted that there is evidence in the form of last seen together proved through depositions of Sarojben and Shakariben. There is evidence of Shobhanaben, who also says that, after taking meals, the victim was playing with her friends. A cry was heard by Shakariben raised by the deceased for help and then, on the next OCC/9/2004 13/42 JUDGMENT day, dead body was found. Around the time when the incident occurred, accused was the only person in the house as his wife and children had gone out of station. Blood stains were found from his house and his clothes. Mr. Gohil submitted that the suicide note found from the pocket of the accused at the time of his arrest ex- facie may not connect him with the crime, but the fact that he had written such a note while he was away from the village would be sufficient to indicate that he had a guilty conscience and was trying to protect his interest. He otherwise had no reason to write such note. 5.1 Mr. Gohil submittd that the conduct of the accused of not being available after the incident is also significant. Mr. Gohil submitted further that injuries were found on private parts of the accused as well as the victim. Vaginal swab also indicated presence of semen with blood. The sample of soil taken from the place where the dead body was lying indicated presence of semen of the group of the accused. 5.2 Trying to explain the conduct of Shakariben, Mr. Gohil OCC/9/2004 14/42 JUDGMENT submitted that Shakariben has indicated that she was intimidated by the accused. The accused was a drunkard and a highhanded man and, therefore, out of fear, she did not take any action or did not disclose about having seen the incident. Mr. Gohil submitted that a lapse here or there on part of the Investigating Officer would not be fatal to the prosecution. He placed reliance on the following decisions in support of his contentions:- (1) Bhagwania v. State of Rajasthan, 2001 Cri. L. J. 3719 (Rajasthan). (2) Chauna Orang. v. The State of Assam, 1981 Cri. L. J. 1661. (3) State of U. P. v. Satish, (2005) 3 SCC 114. (4) Geetha v. State of Karnataka, (2000) 10 SCC 72. (5) Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220. (6) Prithvi v. Nam Raj & Others, (2004) 13 SCC 279. (7) State of M. P. v. Santosh Kumar, (2006) 6 SCC 1. 5.3 Mr. Gohil submitted that the Trial Court has considered the evidence in its proper perspective, evaluated the same keeping the settled principles of law in mind and has demonstrated in its OCC/9/2004 15/42 JUDGMENT judgment how the chain of circumstances leading to the guilt of the accused is established and, therefore, there is no question of interfering with the conviction. 5.4 Mr. Gohil submitted that the accused has committed a heinous crime. He has raped a young child of about 6 years of age and has then, to destroy the evidence committed her murder and thrown her body away. The accused has committed this crime only to satisfy his lust and whenever in future he is out from prison, somebody else may fall prey to him and, therefore, the Trial Court is justified in awarding capital punishment. He, therefore, submitted that the appeal may be dismissed and the punishment of hanging awarded by the Trial Court to the accused may be confirmed. 6. We have taken into consideration rival side contentions and have also examined the record and proceedings from their respective perspective. 7. Having gone through the record and proceedings, we OCC/9/2004 16/42 JUDGMENT find that the case of the prosecution depended on circumstantial evidence. It is a settled position of law that for recording conviction, the prosecution must establish a complete chain of circumstances connecting the accused with the crime. Each circumstances must be incriminating and leading to the exclusive hypothesis of guilt of the accused ruling out the possibility of involvement of somebody else and, if the chain is not complete or any of the circumstance is not founded on cogent evidence, conviction cannot be recorded. 8. In the instant case, there is no dispute that the deceased met with a homicidal death. Evidence of Dr. Shashikant Nagori (Exhibit 6) indicates presence of injuries on left mastoid region, which was bone deep and brain matter was coming out of the wound. There was heamatoma over whole skull on both parietal and frontal region. There was bleeding from left ear. There was a depressed fracture of skull on frontal region and left parietal region. The doctor has opined that these injuries were sufficient in ordinary course of nature to cause death. Under the circumstances, we confirm that the death of the deceased was homicidal. OCC/9/2004 17/42 JUDGMENT 9. Now, on question of rape, there is no direct evidence. The medical evidence, therefore, is the only circumstantial evidence which can be relied on. In this regard, Dr. Nagori (Exhibit 6), has deposed that when he examined the dead body, he found swelling of 3 x 2 cms. on right labia majora and abrasion over left labia majora. It is also recorded in the postmortem notes that in per vagina examination, it was found that little finger passed with difficulty and there was no internal injury. The postmortem notes also indicate abrasions on both thighs, both knees and bruises over legs. In his deposition, the doctor has deposed, after describing the injuries. that the injuries found on labia majora were possible in an attempted rape. During cross- examination he has deposed that, if there was penetration of penis in the vagina, there was possibility of internal injuries. He has stated in terms that from the postmortem examination, in the instant case, there was no penetration of penis in the vagina. 9.1 It is, thus, clear that the offence of rape was not proved by the prosecution beyond reasonable doubt. At the most, it can be OCC/9/2004 18/42 JUDGMENT considered as an attempted rape. The Trial Court, therefore, could not have recorded the conviction for offence of rape punishable under Section 376 of I. P. C. 10. Reliance was placed by learned Additional Public Prosecutor on decision of Rajasthan High Court in the case of Bhagwania v. State of Rajasthan, 2001 Cri. L. J. 3719, where it has been held that in a case of rape of minor, complete penetration of penis with emission of semen and rupture of hymen is not necessary to be established. In the instant case, however, the medical evidence clearly indicates that there was no penetration at all. According to the doctor, had there been penetration, there was possibility of internal injury in the vagina, which was absent. Here is a case of no penetration unlike the case of Bhagwania (supra). As such, this decision cannot be of any help to the prosecution. 11. Now that we find that the deceased was murdered and that, at the most, there was an attempted rape on her, the question that arises is whether the prosecution was able to establish the chain of circumstances connecting the accused with the crime. The OCC/9/2004 19/42 JUDGMENT first, foremost and strongest circumstance indicated by the prosecution is the evidence in the form of the victim having been seen last in company of the accused. To bring home this circumstance, the prosecution has examined Sarojben, at Exhibit 44. Sarojben is a child witness, who was playing with the deceased just before the alleged incident. The Trial Court, after assessing her mental status, deemed it fit to administer oath as she is a child witness. She says that, she was playing in the courtyard of the accused with the victim and Parul around 3.00 P.M. on the day of the incident. At that time, the accused came and shouted at them. Therefore, she and Parul ran away. The victim was left behind. The accused, therefore, sent the victim to purchase a packet of Vimal. The witness says that, she went to her home and was doing lesson. She says that she saw the victim going with a packet of Vimal for giving it to the accused. The witness identified the accused in the Court. During cross-examination, she says that there are about 5 to 7 houses located in the same line of the house of the accused. There are certain houses in the opposite line also and the house of the father of the victim is in the opposite line and it is possible to see what is transpiring in the house located in the OCC/9/2004 20/42 JUDGMENT opposite row. She says that the accused except shouting “Ladidiyo” which means young girls, did not speak anything. 11.1 Shakariben is examined as P.W.16 at Exhibit 49. She says that around the time when the incident occurred, i.e. between 3.00 P.M. and 4.00 P.M., she was washing clothes and that the victim, Parul and daughter of Arjun were playing in the courtyard of the accused. She says that there is a hedge between her house and the house of the accused. The accused drove away Parul and daughter of Arjun and then caught the victim and pushed her into his house. Thereafter, she heard cry of the victim and then she heard sound of beating. She then says that she went into the house thereafter. She said that the accused had threatened her that, if she talks to anyone in the town, he would kill her and her son. She has further stated that the accused had arrived at about 2.30 P.M. on the day of the incident and he was drunk. He tried to push open the rear door of the house. The witness said that the mother of the accused, Divaliben, had given the key of the house to her and, therefore, she gave the key to the accused. The witness has further stated that, on the next day, when mother of the victim was OCC/9/2004 21/42 JUDGMENT searching the victim, she told her that she had not seen the victim and she may join the search. During cross-examination, the witness has admitted that she had not stated in her statement before police that the accused had intimidated her. She does not know, whether the accused was ever prosecuted under the Prohibition Act. She says that she does not know whether the victim had gone to purchase Gutka packet. The distance between her house and the house of the accused is 25 to 30 feet. She says that she did not tell her husband or her son about the incident. She admits that she did not state before police that, at the time of the incident, she went into the house after washing clothes and sat in the house and, at that time, accused had intimidated her that, if she tells anyone in the village, he would kill her and her son. She admits that, on the day of incident as well as on the next day, when people were searching for the girl, she did not tell anyone about the incident. She also admits that she