IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 322 of 1996 with CRIMINAL APPEAL No 378 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ KESHVANAND HARINARAYAN SWAMI@ KAMAL VISHWESHWER SHARMA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 322 of 1996 MR DAFTARI WITH MR KJ SHETHNA for appellant. MR BUKHARI, APP, for Respondent No. 1 2. Criminal Appeal No. 378 of 1996 MR BUKHARI, APP, for appellant. MR RA BHATT for Respondent No. 1 CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE A.L.DAVE Date of decision: 26/06/2001 ORAL JUDGEMENT ( Per A.L. Dave, J. ) 1. These two Criminal Appeals arise out of a judgment and order rendered by learned Additional Sessions Judge, Jamnagar, in Sessions Case No.118 of 1994 on March 18, 1996. 2. The facts leading to the present appeals are that, a First Information Report came to be lodged by one Mitesh Manubhai Shah before the Dwarka Police on June 18, 1994 against one Swami Keshvanand and another one Ravindra alias Mama of Sanatan Seva Mandal, an institution working at Dwarka. The charged levelled against the two accused persons were punishable under Sections 376, 354 and 114 of Indian Penal Code. 3. According to the prosecution, sister of the first informant - Rita - was studying in the school run by Sanatan Seva Mandal, at Dwarka. About three months prior to the date on which the F.I.R. was lodged, the girl was called by accused-Ravindra at about 12.00 noon and was taken to the room of accused-Keshvanand. It is the case that Swami Keshvanand initially made indecent advances towards Rita and then, ultimately, committed rape on her. As a result thereof, she had bleeding, she had severe pain and she started crying. She was asked by Keshvanand not to disclose this incident to anybody else. When she came out of the room, the first informant who was sitting outside the room on a water tank saw her crying. He, therefore, inquired of Rita as to why she was crying. He was informed by Rita about the incident that had occurred. The first informant, therefore, went to accused-Keshvanand where he was also threatened not to disclose this fact to anybody else. He, therefore, went away. As per the say of the first informant in the F.I.R., he told his sister Rita not to go to the room of Keshvanand even if she is called again. However, he found that accused-Ravindra used to take Rita to the room of Keshvanand even thereafter and he, therefore, used to keep a watch and when Rita used to come out of the room, he used to inquire from her and was informed about rape being committed on her by Keshvanand on every occasion. According to the first informant, as he could not bear the situation, he left Sanatan Ashram about a month and a half prior to his lodging the F.I.R. He has then stated that, out of fear of Keshvanand, people are not divulging the correct information, but he is involved in such activities which are known to all. 3.1 On basis of the first information, an offence was registered at C.R.-I No.60 of 1994 with Dwarka Police Station. The case was investigated upon by the police. The victim girl-Rita was subjected to medical examination so also accused-Keshvanand. As per the prosecution case, a statement of Rita under Section 164 of the Code of Criminal Procedure was also got recorded before the Judicial Magistrate. The Investigating Agency having found sufficient evidence against the accused persons, filed a charge sheet before the learned Judicial Magistrate, First Class, Dwarka. Since the charges against the accused persons were triable exclusively by a Court of Sessions, the case was committed to the Court of Sessions at Jamnagar and Sessions Case No.118 of 1994 at Jamnagar was registered. Charges were levelled against the accused persons at Ex.4 for offences punishable under Sections 354, 376(2)(c) read with Section 114 of Indian Penal Code. The accused persons pleaded not guilty to the charges and expressed their desire to face the trial. 4. Considering the evidence led by the prosecution, the learned Additional Sessions Judge came to a conclusion that the prosecution was successful in proving the charges against accused-Keshvanand whereas the learned Trial Judge found that the charges levelled against accused-Ravindra Brahmadev Chowbe were not proved by the prosecution and was, therefore, acquitted of the charges. Accused-Keshvanand was heard on question of punishment and was ordered to undergo rigorous imprisonment for a term of 10 years for the offence punishable under Section 376(2)(c) of Indian Penal Code. He was also directed to pay a fine of Rs.35,000/- and was directed to undergo a further simple imprisonment for a period of two years in event of default in payment of fine. It was also ordered that in event fine is paid, an amount of Rs.25,000/- be paid to the victim girl-Rita, by way of compensation. 5. Aggrieved by the said judgment and order, accused-Keshvanand has preferred Criminal Appeal No.322 of 1996 on various grounds. 5.1 Likewise, aggrieved by the quantum of sentence imposed on accused-Keshvanand, the State has preferred Criminal Appeal No.378 of 1996, praying for enhancement of the sentence. 6. We have heard learned counsel Mr. Shethna and Mr. Daftari on behalf of the appellant-accused-Keshvanand and Mr. Bukhari, learned Additional Public Prosecutor, on behalf of the State. We have been taken through the records and proceedings and the evidence thoroughly. 7. We shall first deal with the appeal preferred by the convict. The main contentions raised on behalf of the accused-appellant can be stated thus :- (1) It has been contented that the judgment and order convicting accused-Keshvanand is unsustainable as it is founded on erroneous evaluation of evidence. The learned Trial Judge has not taken into consideration various flaws in the prosecution case. It was contended that the evidence of the prosecutrix is inconsistent with the prosecution story. The improvements made in the deposition by the prosecutrix, though appear to be innocuous, are made with a design to derive support from medical evidence. It is also contended that in light of the medical evidence, the girl could not have been subjected to even a single act of coitus. The medical examination of the accused also indicates that the act indicated by the prosecution was not possible. The whole investigation is indicated to be lopsided and lacks in fairness and impartiality. It has come in evidence that the prosecutrix was made to give certain statements putting pressure on her maternal uncle and even on herself by authorities for which a petition was filed before the High Court. It is also contended that the conduct of the prosecutrix and the first informant, the brother of the prosecutrix, is such that it ought not to have been accepted by the Court below. Even after three months of the incident, neither the prosecutrix nor her brother who is in know of the incident has ever tried to disclose this fact to anyone nor an F.I.R. is lodged in this regard. This F.I.R. is lodged on being approached by the Police. The first informant had come to know about certain complaints having been lodged against Keshvanand of similar nature. In spite of that, he does not come forward to lodge the complaint, but he lodges the complaint only on being approached by the Police. (2) The medical evidence rules out the possibility of a sexual intercourse with the prosecutrix. The case of the prosecutrix is that rape was committed on her on number of occasions. But later when she enters the box, having found that the medical evidence is not likely to corroborate her say of repeated rapes, she changes her version to indicate that she was raped only once. This change in the version is designed only to derive support from the medical evidence or to lend support to the medical evidence. All these factors taken collectively, the accused could not have been convicted. (3) The prosecution version, initially, is that accused No.2 had taken the girl to the room of accused No.1 on the first occasion, where she was ravished. But in the deposition, no allegation is made against accused No.2-Ravindra and it is indicated that she was taken by one Hemaben, who has not been examined nor is she arraigned as an accused. As per the deposition of the complainant, the girl was being taken to the room by accused-Keshvanand himself. (4) As per the prosecution case, the Investigating Agency got statement of the prosecutrix recorded by Judicial Magistrate, as provided under Section 164 of the Code of Criminal Procedure. This aspect is flatly denied by the prosecutrix in her deposition. The prosecution has not examined the Magistrate who recorded the statement and the statement has not been proved and not placed on record by the prosecution. (5) It was urged on behalf of the accused-appellant that, if these factors are taken into consideration, the case against the accused ought not to have been accepted and the conviction could not have been recorded. The Trial Court having run into error of convicting the accused-appellant, the appeal may be allowed and the said judgment and order may be set aside. 7. Countering the contentions raised by the accused-appellant, the respondent-State, represented by learned Additional Public Prosecutor Mr. Bukhari, has contended that the prosecutrix is a young girl. She was under influence of accused No.1 as she was studying in the school. Her brother is also a young boy of Nineteen. He was also under the influence of accused-Keshvanand and, therefore, neither the girl nor her brother could have offered any resistance nor could they come out of the intimidation administered by accused No.1-Keshvanand and lodge a complaint/F.I.R. Keshvanand, under the garb of a Saint and caretaker of the Ashram, has misused his position of loco-parentice and, therefore, he is rightly convicted, but the sentence inflicted on him is less. He ought to have been sentenced for life imprisonment. 7.1 It is contended by learned Additional Public Prosecutor that certain contradictions, omissions or loopholes are bound to creep into the prosecution evidence, particularly, when evidence is recorded after a lapse of time and the evidence is given by young witnesses. There was no reason for the prosecutrix to falsely implicate the accused. No girl would falsely implicate a man for offence of a nature which is likely to tarnish her own image. The medical evidence relating to the accused-Keshvanand indicates that he was not incapable of committing an intercourse. Likewise, the medical evidence indicates that possibility of rape on the victim cannot be ruled out and, therefore, the Trial Court has rightly convicted the accused. 8. Before we proceed to deal with the merits of the case, it would be relevant to record here that we are informed by learned counsel for the accused-appellant that the accused has been released from jail on completion of the term of sentence, in light of the remission given to him. We are also informed that the accused has paid the fine. 9. In order that the contentions raised before us are properly appreciated, it would be appropriate to have a look at the law, as settled by various pronouncements. 9.1 In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, relied upon by the State before us, the Apex Court observed that, if the evidence of the victim does not suffer from any basic infirmity and the "probabilities-factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to certain clarifications, namely, corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having levelled such an accusation on account of the instinct of self-preservation or when the "probabilities-factor" is found to be out of tune. 9.2 In that case, the prosecutrix was sent for medical examination and the medical examination disclosed that there was evidence to show that there had been an attempt to commit rape on her a few days back. On basis of that evidence, the above observations were made. The Apex Court observed that overmuch importance cannot be attached to minor discrepancies for certain reasons as recorded in paragraph 5 of the said judgment. The High Court, in that case, held that there was an attempt to commit rape on the prosecutrix and the Apex Court found that such conclusion of the High Court could not have been successfully assailed. 9.3 Learned Additional Public Prosecutor, then relied on the case of State of Andhra Pradesh v. Gangula Satya Murthy, 1997 Criminal L.J. 774. In that case, the Apex Court observed that it was the duty of the Court while trying accused of charge of rape to show great sensitivity. The Court should examine broader probabilities and not get swayed by minor contradictions of insignificant discrepancies in the statements of witnesses which are not of vital nature to throw out the allegation of rape. In that case, the medical examination of the prosecutrix indicated fresh tear on vaginal wall. There was an extra-judicial confession of the accused stating that he took the victim by force and kept on the cot as he was long nurturing the lust to enjoy her. In light of these pieces of evidence, conviction was upheld. 9.4 In Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361 relied upon by the learned Additional Public Prosecutor, the question before the Apex court was of a different nature. The Apex Court held that the question of consent did not arise as the girl was below the age of 16 years. 9.5 In Kanubhai Shamalbhai Patel v. State of Gujarat, 1990(2) GLH (UJ) 9, a Division Bench of this Court observed that corroboration of evidence of the prosecutrix is not necessary in all rape cases. It is not necessary that in all rape cases, woman would resist sexual intercourse so that she may have some marks of external injury on her person and everything would depend upon beastly physical power of the person who commits rape and the resistance power of the victim and the situation. In that case, the Court found that the conduct of the prosecutrix was natural and there was no material on record to show as to why the prosecutrix would file a false complaint against the accused, if she had willingly accompanied the accused. The Court found her evidence to be reliable and upheld the conviction. 9.6 Learned Additonal Public Prosecutor relied on Prithi Chand v. State of Himachal Pradesh, AIR 1989 SC 702. The Court observed that the prosecutrix and her parents would not allow the real culprit to escape and falsely involve innocent person in commission of a crime. It was a case wherein there was a delay in lodging the F.I.R. In that case, it was held that in light of the fact that immediately after the incident it was narrated to the mother and other ladies and in light of the fact that a decision was taken to await the return of the father before deciding on the course of action, the delay was justified. That was a case wherein the say of the prosecutrix was corroborated by medical evidence, where there was absence of hymen with edges torn and profuse bleeding. Besides the abovesaid injuries, medical certificate also indicated abrasions on the lumber region, inflammation around the vulva and vaginal bleeding. In light of these facts, the conviction was upheld and appeal was dismissed. It may be noted that in this case, unlike the case before us, opinion of the doctor was not obtained while recording the evidence as to whether the accused could have had vaginal penetration in light of the physical condition of the prosecutrix. In the case before us, the medical evidence is to the effect that even a presumption of penetration is not medically permissible in light of physical condition of the prosecutrix. 9.7 Learned Additional Public Prosecutor then relied on the decision in the case of State of Rajasthan v. N.K., as reported in 2000 SCA (Cri) 898. The Apex Court observed in view of evidence of the prosecutrix that she was forcibly subjected to sexual intercourse should normally be believed unless there is material leading to an inference of her consent. The Court observed that absence of marks of personal injuries on person of the prosecutrix by itself was not sufficient to draw an inference of consent by the prosecutrix and, in facts of the case, the Apex Court held that her testimony that she was subjected to rape was credible. The Court found that, though related witness would not ordinarily subscribe to false story of rape on his daughter and thereby invite ignominy. In that case, medical evidence indicated that the prosecutrix was not used to sexual intercourse. The doctor found that the hymen ruptured in multiple radial tears, the edges of which showed healing on most of the places and mild tenderness. Pieces of broken bangles were found at the place of incident and were seized. Presence of human semen was also found on the lehenga of the prosecutrix. The Court observed that the evidence of the prosecutrix was corroborated by medical evidence as also by the testimony of her father and, ultimately the decision of the High Court acquitting the accused was held to be erroneous. The appeal of the State was allowed. The judgment of the High Court was set aside and the accused was held guilty of the offence punishable under Section 376 of the Indian Penal Code. 9.8 In State Govt. of NCT of Delhi v. Sunil and Another, 2001 SCC (Cri) 248 relied upon by Mr. Bukhari, learned Additonal Public Prosecutor, it was a case of rape and murder of a girl aged only 4 years. The medical evidence indicated as under :- "The vaginal orifice is described by the doctor in his report as follows: Labia majora and minora swollen and reddish blue in colour. Vaginal orifice dilated and blood is coming out of it. Right labia minora showing tears 1.6 x 0.1 cm and on the left side labia minora showing tear in an area of 1.5 x 0.2 cm in vertical plane. Labia majora showing contusion on both sides in an area of 3 x 2 cm each. About hymen the doctor described thus: Hymen - showing tear at 5 and 6 o' clock position which was going upto the vaginal wall and triangular in shape in an area of 1.5 x 1 x 1 cm. There were tears on the sides and back of urethra opening upto the hymen in an area of 1.4 x 1.2 cm in triangular fashion. About the anus the doctor described as follows: Dilated and blood was coming out of it. The diameter was 1.5 cm. The area around the orifice was showing swelling with reddish contusion in an area of 2 cm. 5. Dr. Basant Lal (PW1) further noted that the vaginal orifice was so badly mutilated that one middle finger could be easily admitted into it." There was evidence that the girl was taken away from her mother's house and her dead body was found from the house of one of the accused and, on basis of these medical evidence and other evidence having found to be reliable, the Apex Court accepted the appeal of the State and set aside the acquittal recorded by the High Court convicted the respondents for the offences punishable under Sections 376 and 377 read with Section 34 of I.P.C. as well as Section 304 Part II read with Section 34 of I.P.C. 10. It is, therefore, clear from the various pronouncements that it is not in every case that corroboration to the evidence of the prosecutrix is essential. It would be an insult to her womanhood but rule of prudence requires that, in such cases where the prosecution case hangs on sole testimony of the prosecutrix, her evidence is put to a close scrutiny along with other surrounding material and relevant factors like medical evidence, her conduct, etc. In case of Bharwada Bhiginbhai (supra) the Apex court has also observed that corroborative evidence is not essential every case except medical evidence. 11. We are not oblivious of the fact that lack of education and social circumstances play a major role in such cases and, therefore, the case has to be weighed with such factors in mind. But, at the same time, the cardinal principle of Criminal Jurisprudence "Let a 100 culprit go unpunished but let not an innocent be punished" cannot be overlooked. It would, therefore, be prudent to closely scrutinize the evidence of the prosecutrix as well as the medical evidence which is an indicator of commission or non-commission of offence in such cases. 12. With these legal propositions, if the evidence led by the prosecution is examined, the prosecution has examined the prosecutrix-Rita, at Ex.17. She says that she was formerly studying in the school run by Sanatan Seva Mandal at Dwarka and she was also staying there. Her brother-Mitesh was also studying. Accused-Keshvanand was trustee of Sanatan Seva Mandal and accused Ravindra was also working in the said Sanatan Seva Mandal. According to her, the incident occurred about a year and a half prior to her deposition. In the afternoon, she was called by accused-Keshvanand to his room. Hemaben had come to call her. After Hemaben left, she went to the room of Keshvanand. She was asked by Keshvanand to massage his legs. At that time, there was nobody else in the room except her and Keshvanand. She started massaging his legs. Thereafter, Keshvanand closed the doors of the room and asked her to remove her clothes. She was then wearing a skirt and a bush-shirt and then Keshvanand did the wrong thing. Because of that, she started bleeding and had pain. She wiped out the blood and then put on her clothes and went out crying. She went to her brother who was sitting on the water tank just outsides the room. When she went to her brother, he asked her to calm down and then she told him what had happened in the room. Her brother, therefore, went to the room of Keshvanand. At that time, she was standing outside the room. Keshvanand was angry with her brother. Therefore, her brother went away. She, however, stayed in the institution. She continued to stay in the institution for about two months even after the incident. Thereafter, she was sent to one Manjuben by accused Ravindra. The police approached her at that place and recorded here statement. She was also taken for medical treatment. 12.1 The girl has been cross-examined, where she states that she had not informed about the rape at the house of Manjuben. She had not lodged any complaint in this regard even after going to Adityana. She was taken from Adityana to Dwarka by police. She was kept at Dwarka for four days. When here statement was recorded, she and the police man recording the statement were alone. Others were sitting outside. She was made to stay in a room in a temple. She was accompanied by a lady constable. She was interrogated by police for 3-4 days. She was kept in a