CR.A/10/2002 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 10 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= LAXMAN @ LAKHO HIRABHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MS SADHANA SAGAR for Appellant(s) : 1, MR H L JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 25/03/2008 ORAL JUDGMENT CR.A/10/2002 2/21 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 15.12.2001 passed by the learned Addl. Sessions Judge, Vadodara in Sessions Case No. 5 of 2001 whereby, the appellant – original accused, was convicted for the offence punishable u/s. 376 & 302 of Indian Penal Code [for short,”the IPC”]. For conviction u/s. 376 IPC, the appellant was sentenced to undergo rigorous imprisonment for ten years with fine of Rs.10,000/-; and in default of payment of fine, simple imprisonment for a further period of one year; while for conviction u/s. 302 IPC, the appellant was sentenced to undergo imprisonment for life. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 At the time when the alleged incident in question took place, the complainant – Chandubhai Poonambhai Patanwadiya, was residing along with CR.A/10/2002 3/21 JUDGMENT his family, consisting of his wife, three daughters and one son in Village Bil, Taluka & District Vadodara and was earning his livelihood by doing labour work. 2.2 On 14.09.2000, at around 0800 hrs., the complainant and his wife left for work by leaving their children in their house. At around 1200 hrs., when the wife of the complainant returned, she realized that one of their daughters, i.e. Anita, aged about 2 years, was missing. 2.3 Some time later, the complainant also returned from work. His wife informed him about the said fact. Therefore, they carried out necessary search for their daughter – Anita. The other persons residing in their locality also made necessary search for the daughter of the complainant. However, she was not traceable. 2.4 Thereafter, at around 1400 hrs., when the complainant came to his house, he noticed that a CR.A/10/2002 4/21 JUDGMENT crowd had gathered in front of his house and that the appellant herein was tied with a post. He also noticed that his wife was sitting with their daughter in her hands and that their daughter was bleeding from the mouth, nose and the private part of the body. Their daughter had also sustained scratch injuries on the face. 2.5 On inquiry, the complainant came to know that during the period while the daughter of the complainant was missing, she was in the custody of the appellant and that the appellant had taken her to a nearby canal and committed rape on her. Therefore, the complainant informed about the said incident to Police Control Room. 2.6 The police official, who was on duty at the relevant point of time, noted down the same in the Register and thereafter, informed about the said incident to Makarpura Police Station. Some time later, the police authority of Makarpura Police Station arrived at the house of CR.A/10/2002 5/21 JUDGMENT the complainant and made necessary preliminary inquiry. The appellant was taken into custody and sent to Makarpura Police Station. The victim was also taken to S.S.G. Hospital, Baroda in a police vehicle, as she had become unconscious and her condition had started to deteriorate. At S.S.G. Hospital, the victim was examined by the Medical Officer who was on duty at the relevant point of time. However, on examination, the victim was found to be dead. 2.7 In the meanwhile, inquest 'panchnama' was also prepared. 'Marnottar' form was filled-up and necessary arrangements were made for sending the dead body for performing post-mortem. The clothes on the dead body were also seized by way of a separate 'panchnama'. The Investigating Officer went to the scene of offence and prepared 'panchnama' of the scene of offence in the presence of 'panchas'. Necessary 'muddamal' articles were also collected. All the 'muddamal' articles so collected were sent to F.S.L. for CR.A/10/2002 6/21 JUDGMENT examination. On receipt of the F.S.L. Report, Post-mortem Report and other Reports, they were kept in the investigation file. 2.8 A complaint with respect to the aforesaid incident was filed before Makarpura Police Station. Arrest 'panchnama' was prepared in the presence of 'panchas'. The clothes wore by the appellant, at the relevant point of time, were seized by way of a separate 'panchnama'. The medical examination of the appellant was also carried out and after completing all formalities, the appellant was sent to judicial custody. 2.9 Further investigation was carried out and statements of several witnesses were recorded. On completion of investigation, charge-sheet was filed against the accused before the Court of learned Judicial Magistrate, First Class (Municipal Court), Vadodara. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the CR.A/10/2002 7/21 JUDGMENT District & Sessions Court, Vadodara and the same was numbered as Sessions Case No. 5 of 2001. Subsequently, the case was handed over to the learned Addl. Sessions Judge for disposing of the same on merits. 3.0 On production of the accused, the learned Addl. Sessions Judge framed the charge and as the accused pleaded not guilty to the said charge, trial was initiated. 3.1 To prove the guilt against the appellant – accused, the prosecution has examined in all seventeen witnesses, namely, PW–1 Chandubhai Poonambhai Patanvadiya at Exhibit – 11, who is the father of the deceased as also the complainant in this case, PW – 2 Mangalbhai Jethabhai Tadvi at Exhibit – 13, who is a 'panch' witness of the arrest 'panchnama' as also the 'panchnama' of seizure of nails of the accused, PW – 3 Navin Rameshbhai Harijan at Exhibit – 16, who is a 'panch' witness to the arrest CR.A/10/2002 8/21 JUDGMENT 'panchnama', PW – 4 Mithalal Bhagwatilal at Exhibit – 18, who is a 'panch' witness to the inquest 'panchnama', PW – 5 Taraben Chandubhai at Exhibit – 21, who is the mother of the deceased, PW – 6 Dharmendrasinh Fatehsinh Rathod at Exhibit – 25 is the A.S.I. who had received the telephone 'wardhi', PW – 7 Narendrasinh Ganpatsinh at Exhibit – 27, who is a Police Constable, PW – 8 Bhikhabhai Chaganbhai at Exhibit – 29 is the first informant regarding the alleged incident, PW – 9 Jayeshbhai Shanabhai Jadav at Exhibit – 30 is also a 'panch' witness of the discovery 'panchnama', PW – 10 Shahbhai Mathurbhai at Exhibit – 32 is the P.S.O., PW – 11 Dr. Atul Prabhakarbhai Gupte at Exhibit – 37 is the Medical Officer who examined the appellant, PW – 12 Dr. Sherbanu Azamkhan Pathan at Exhibit – 40 is the Medical Officer who performed the post- mortem, PW – 13 Ramanlal Mansingbhai Jadav at Exhibit – 42 is the P.S.I. who had received the 'wardhi' while on duty at Makarpura Police Station, PW – 14 Kishorbhai Pramodrai Desai at CR.A/10/2002 9/21 JUDGMENT Exhibit – 43 is the Expert of F.S.L., PW – 15 Rameshbhai Varjubhai at Exhibit – 46 is the A.S.I. who was on duty at S.S.G. Hospital at the relevant point of time, PW – 16 Jashbhai Chotabhai Padhiyar at Exhibit – 49 is the witness who had caught hold of the appellant, PW – 17 Sanjaybhai Shantilal at Exhibit – 50 is also a 'panch' witness of the 'panchnama' of seizure of nails of the accused and PW – 18 Vikramsinh Deepsinh Rathod at Exhibit – 54 is the Investigating Officer. 3.2 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 12, the 'panchnama' of the place of incident at Exhibit – 31, the inquest 'panchnama' at Exhibit – 19, the 'panchnama' regarding seizure of the nails of the appellant at Exhibit – 14, the 'panchnama' regarding the physical condition of the appellant at Exhibit – 17, the 'yaadi' written to the Executive Magistrate at Exhibit – CR.A/10/2002 10/21 JUDGMENT 55, the 'yaadi' sent to F.S.L. for taking custody of the nails of the appellant at Exhibit – 56, the Certificate issued by S.S.G. Hospital at Exhbiit – 38, the 'yaadi' send by P.I. to the Medical Officer for performing Post-mortem at Exhibit – 45, the Post-mortem Report at Exhibit – 44, the Receipt issued by P.I. regarding custody of the dead body after performing post-mortem at Exhibit – 57, the Receipt regarding handing over custody of the dead body to the complainant at Exhibit – 58, the 'yaadi' sent by P.I. to the Medical Officer for conducting the medical examination of the appellant at Exhibit – 39, the 'yaadi' sent by P.I. to Police Constable – Ravindra Bhagoji for handing over 'muddamal' articles to F.S.L. and obtaining receipt thereof at Exhibit – 59, the 'yaadi' sent by P.I. to F.S.L. for examining the 'muddamal' articles at Exhibit – 60, the forwarding letter sent to F.S.L. at Exhibit – 61, the copy of the authority letter issued by the Deputy Police Commissioner at Exhibit – 62, the Receipt issued by F.S.L. at CR.A/10/2002 11/21 JUDGMENT Exhibit – 63, the F.S.L. Report at Exhibit – 64 and the Serological Report at Exhibit – 65. 3.3 On submission of the closing 'purshis', the learned Addl. Sessions Judge recorded the further statement of the appellant u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment convicting the appellant for the alleged offence in question. Hence, this Appeal. 4.0 Ms. Sadhana Sagar, learned Advocate for the appellant, has submitted that the entire case of the prosecution rests upon circumstantial evidence and that the prosecution has failed to establish the chain of circumstances pointing towards his guilt. 4.1 Learned Advocate has submitted that if the said chain of circumstances remains CR.A/10/2002 12/21 JUDGMENT incomplete or if there is any reasonable ground for a conclusion consistent with the innocence of the accused, then the accused cannot be convicted for the alleged offence in question. 4.2 Learned Advocate for the appellant has further submitted that the appellant has been falsely implicated in the alleged offence inasmuch as there is no evidence on record worth the name to connect him with the crime in question. Hence, the appellant deserves to be acquitted from the alleged offence by granting him the benefit of doubt. 5.0 Mr. H. L. Jani, learned APP appearing for the respondent – State, has submitted that the oral evidence on record in the form of depositions of PW – 1 Chandubhai Poonambhai Patanwadiya at Exhibit – 11, PW – 5 Taraben Chandubhai at Exhibit – 21 and PW – 8 Bhikhabhai Chaganbhai at Exhibit – 29 and documentary evidence in the form of Post-mortem Report at CR.A/10/2002 13/21 JUDGMENT Exhibit – 44, F.S.L. Report at Exhibit – 64 and the Medical Certificate of the appellant at Exhibit – 38, clearly establish the guilt of the appellant. Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties. Having perused the entire oral as well as documentary evidence available on record, it appears that the entire case of the prosecution rests upon circumstantial evidence. It is a settled principle of law that to convict an accused in a case based on circumstantial evidence, the prosecution has to prove a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 7.0 To prove the aspect of “last seen together”, the prosecution has relied upon the CR.A/10/2002 14/21 JUDGMENT oral evidence of Bhikhabhai Chaganbhai, who has been examined as PW – 8 at Exhibit – 29. In his deposition, this witness has stated that on the date of the alleged incident in question while he was at his house, he noticed the appellant proceeding towards the canal at around 1000 hrs., during which time, the appellant was carrying the victim along with him and was completely undressed. Thereafter, he took his cattle for grazing. He has further deposed that at around 1030 hrs. while he was returning, he saw the appellant climbing the canal, during which time also, the appellant was carrying the victim. He has further deposed that at around 1300 hrs., Jashbhai Chotabhai Padhiyar [PW – 16 at Exhibit – 49] came to his house and informed him that the victim was missing and that her parents were searching for her whereabouts. Therefore, he and Jashbhai Chotabhai Padhiyar also began to search for the whereabouts of the victim. They both proceeded towards the canal where he had noticed the appellant along with the victim in the CR.A/10/2002 15/21 JUDGMENT morning. After reaching the canal, they both climbed it and under a tree situated near the canal, they noticed the appellant resting thereunder and the victim lying besides him. They also noticed that the victim had sustained scratch injuries on her face and that she was bleeding from the private part. Thereafter, they both instructed the appellant to come along with them. However, the appellant declined to come with them but, whey they threatened the appellant of serious consequences, the appellant agreed to come along with them. Thereafter, they both, the appellant and the victim returned to the Village and after reaching his house, they tied the appellant to a nearby post. 7.1 This witness has been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross- examination, which may lead us to believe the evidence led by this witness to be untrue or unreliable. CR.A/10/2002 16/21 JUDGMENT 7.2 The evidence led by this witness gets support from the evidence of Jashbhai Chotabhai Padhiyar [PW – 16 at Exhibit – 49]. He is the person who had accompanied Bhikhabhai Chaganbhai [PW – 8 at Exhibit – 29] to the canal in question and thereafter, brought the appellant to the Village and tied him to a post near the house of Bhikhabhai Chaganbhai. He is a co-witness to all the events that have been narrated by Bhikhabhai Chaganbhai in his deposition as PW – 8 at Exhibit – 29. This witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross-examination which may lead us to believe the evidence led by him to be untrue or unreliable. 7.3 Thus, from the evidence led by PW – 8 Bhikhabhai Chaganbhai at Exhibit – 29 and PW – 16 Jashbhai Chotabhai Padhiyar at Exhibit – 49, it is established beyond doubt that the victim was CR.A/10/2002 17/21 JUDGMENT last seen together in the company of the appellant. Thus, it has to be concluded that the prosecution has been able to prove the aspect of “last seen together” without any iota of doubt. 8.0 The evidence led by the aforesaid two witnesses gets support from the evidence led by the father of the victim – Chandubhai Poonambhai Patanwadiya as PW – 1 at Exhibit – 11 and the mother of the victim – Taraben Chandubhai as PW – 5 at Exhibit – 21. The complaint at Exhibit – 12, filed by the father of the victim on the same day, also supports the case of the prosecution. Thus, the oral evidence on record in the form of depositions of PW – 1 Chandubhai Poonambhai Patanwadiya at Exhibit – 11, PW – 5 Taraben Chandubhai at Exhibit – 21, PW – 8 Bhikhabhai Chaganbhai at Exhibit – 29 and PW – 16 Jashbhai Chotabhai Padhiyar at Exhibit – 49 support the case of the prosecution and establish the guilt of the appellant. CR.A/10/2002 18/21 JUDGMENT 9.0 The Report of the Forensic Science Laboratory is at Exhibit – 64. From the said Report, it is evident that human blood stains, belonging to Blood Group 'B', were found on the clothes, nails, pubic hair, etc. of the appellant. Human blood stains belonging to Blood Group 'B' was also found on the vaginal swab of the victim. Thus, the F.S.L. Report at Exhibit – 64 also supports the case of the prosecution. 10.0 To prove the medical evidence on record, the prosecution has examined PW – 12 Dr. Sherbanu Aazamkhan Pathan at Exhibit – 40, who has performed the post-mortem of the deceased and PW – 11 Dr. Atul Prabhakarbhai Gupte at Exhibit – 37, who has conducted the medical examination of the appellant. The Post-mortem Report of the deceased is at Exhibit – 44. The said Report states the cause of death as “shock and haemorrhage following perineal tear”. In his deposition, the Medical Officer, who has performed the post-mortem, has categorically CR.A/10/2002 19/21 JUDGMENT opined that the said injury could be sustained on account of a 'rape'. The said Medical Officer has also opined that the victim could have sustained the injuries in question on being raped by an adult male. This witness has also been cross- examined at length before the Court below. However, nothing incriminating has come out from his cross-examination, which may lead us to believe his evidence to be untrue or unreliable. 11.0 The Medical Officer – Dr. Atul Prabhakarbhai Gupte, who has conducted the physical examination of the appellant, has been examined as PW – 11 at Exhibit – 37. This witness, after perusing the F.S.L. Report and the Serological Report, has categorically stated that the appellant appears to have forcibly entered into an intercourse with the victim and that while doing so, the victim had sustained injury on her private part as a result of which blood, belonging to Blood Group 'B', has got stuck in the nails, pubic hair and clothes of the CR.A/10/2002 20/21 JUDGMENT appellant. This witness has also been cross- examined at length before the Court below. However, nothing incriminating has come out from his cross-examination, which may lead us to believe his evidence to be untrue or unreliable. 12.0 Considering the oral evidence of PW – 11 Dr. Atul Prabhakarbhai Gupte at Exhibit – 37 and PW – 12 Dr. Sherbanu Aazamkhan Pathan at Exhibit – 40 in light of the documentary evidence on record in the form of F.S.L. Report at Exhibit – 66 and the Post-mortem Report at Exhibit – 44, it could be safely concluded that the victim was raped by the appellant on the date of the alleged incident in question. As discussed in the earlier part of this judgment, the prosecution has established beyond doubt the aspect of “last seen together” from the evidence of PW – 8 Bhikhabhai Chaganbhai at Exhibit – 29 and PW – 16 Jashbhai Chotabhai Padhiyar at Exhibit – 49. The documentary evidence on record in the form of F.S.L. Report at Exhibit – 66 and Post-mortem CR.A/10/2002 21/21 JUDGMENT Report at Exhibit – 44 clearly establish the role played by the appellant. 13.0 In above view of the matter, we are of the opinion that the prosecution has been able to prove the entire chain of events which leads us to the only conclusion that within all human probability the alleged act in question was committed by the appellant. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and hence, find no reasons to interfere in this Appeal. 14.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*