DHRUVKUMAR NANJIBHAI DAMOR v. STATE — 1993 DIGILAW 171 (GUJ)

K. J. VAIDYA, J. ( 1 ) THE appellant-Dhruvkumar Nanjibhai Damor who came to be tried in Sessions Case No. 22/86 by the learned Additional Sessions Judge Sabarkantha at Himatnagar for the alleged offence punishable under sections 323 354 and 376 of IPC was at the end of the trial by judgment and order dated 19. 6. 1986 came to be convicted only for the offence punishable under section 354 of IPC and was sentenced to suffer RI for six months and he was acquitted of the charge for the offences punishable under sections 323 and 376 of the IPC. 1. 1 At this stage it may incidentally be stated that so far as the acquittal under sections 323 and 376 of IPC is concerned no appeal is filed by the State. Of course it is true that when the appeal came up for admission on 22. 8. 1986 while admitting the appeal this court (Coram: J. P. Desai J.) had issued a notice to the appellant to show cause as to why the sentence imposed by the trial court should not be enhanced. ( 2 ) ACCORDING to the prosecution the alleged incident wherein Taraben Sajjanbhai (PW-3 EX-13) was molested and raped look place at 7. 00 A. M. on 11. 2 at the distance of about 1/2 k. m. from village Bhiloda. It is case of the prosecution that Sajjanbhai Kalabhai (PW-3 EX- 11) who happens to be father of the prosecuterix Taraben is staying at village Bhatera and was serving as a teacher in Vankaner. It is further alleged that Taraben at the relevant time was 19 years old and was studying in F. Y. B. Com. and that her timing for going to the College was from 7. 00 A. M. to 1 Noon. It is further alleged by the prosecution that on the aforesaid date time and place when Taraben was proceeding towards the College and was passing from a ravine known as Kharada Vagha the appellant all of a sudden came from behind caught hold of her and dragged her in the said ravine. It is further alleged that thereafter on she raising the shouts the accused pressed her mouth with hand and thereafter after making Taraben to lie down forcibly committed a sexual intercourse. It is further alleged that thereafter on she raising the shouts the accused pressed her mouth with hand and thereafter after making Taraben to lie down forcibly committed a sexual intercourse. It is further alleged by the prosecution that on hearing the shouts of Taraben her brother Vasant Sajjanbhai (PW-4 EX-14) aged-20 who was following her for going to the tution ran towards the scene of offence and on seeing him the accused ran away. It is further alleged that within a short time one Maganbhai Kalabhai Bareva (PW-5 EX- 15) who happens to be the uncle of the prosecutrix-Taraben appeared on the scene of the offence and thereafter both Maganbhai and Vasant took Taraben to her house and narrated the entire incident to the complainant- Sajjanbhai Kalabhai. It is further alleged that as the reputation of the family was at a stake the complainant did not go immediately to the police station to the a complaint. But thereafter realising the gravity and seriousness of the offence after mustering the courage Sajjanbhai went to Bhiloda Police Station and filed a complaint Ex. 10 at 10. 00 a. m. on 12. 2. 1985 which come to be registered for the offence under section 354 of the IPC. On the basis of the basis of these facts the police filed a chargesheet under section 354 of IPC against the appellant to stand trial before the learned Magistrate. During the course of the trial when the evidence came to be recorded the prosecution witnesses came out with a story of the rape and hence the case was committed to the court of sessions charging the accused also for the alleged offence under section 376 of IPC. ( 3 ) AT trial the appellant pleaded not guilty and claimed to be tried. In substance it was his defence that prosecuterix-Tara and he were in love and were on good relations and often meating and that for whatever reasons ultimately he has been falsely implicated in a serious charge of rape. ( 4 ) THE trial court after duly appreciating the prosecution evidence brought on the record in para-8 of its judgment reached a definite conclusion that taking into consideration the earlier statement of the prosecuterix before the police as well as the medical evidence brought on the record it was very clear that no offence under section 376 of IPC was made out. Not only that but the trial court in para-12 of its judgment has further observed that in order to magnify the alleged incident and offence the prosecuterix Taraben and her brother-Vasant have deliberately improved upon the story by alleging the rape to the accused which is on face of it contrary to the medical evidence brought on the record and the earlier statement before the police. However the trial court punishable accepting the prosecution evidence acquitted the appellant for the offence punishable under section 376 of the IPC and convicted him for the alleged punishable under section 354 of the IPC sentencing him to suffer RI for six months. It is under these circumstances that the appellant has been constrained to the the present appeal. ( 5 ) MR. J. M. Panchal the learned advocate for the appellant has carefully taken this court through the evidence of all the prosecution witnesses as well as the reasons for conviction and sentence given by the trial court. Mr. Panchal submitted that this is nothing but a case of conspiracy created against the appellant to falsely implicate him under a serious charge of rape. Mr. Panchal further submitted that the prosecution evidence brought on the record is not only totally concocted but even otherwise sunds wholly improbable to sustain the order of conviction and sentence. Mr. Panchal further submitted that the prosecution witnesses who had an audacity to imporve upon the case from that under section 354 of IPC to section 376 of IPC cannot be said to be truthful witnesses. Mr. Panchal further submitted that as a matter of fact when the trial court itself found that the prosecution witnesses were lying on the major part of the prosecution story then in that ease the evidence of such witnesses should have been discarded even for the purpose of convicting the accused under section 354 of IPC. 5. 1 Attacking the evidence of the complainant-Sajjanbhai Kalabhai (PW-2 Ex-11) Mr. Panchal submitted that the complaint Ex. 5. 1 Attacking the evidence of the complainant-Sajjanbhai Kalabhai (PW-2 Ex-11) Mr. Panchal submitted that the complaint Ex. 10 is filed after 24 hours and that creates grave doubt It may be staled that merely because the complaint is filed belated that by itself would not be a sufficient ground to discard the evidence of the prosecution witnesses more particularly in case of such type where the prosecuterix and her family members are always in an embarassing state of mind whether to file a complaint or not Under such circumstances a complaint which came to be filed only after 24 hours that by itself is not that much belated to doubt the veracity of the witnesses on that count only. Mr. Panchal further submitted that so far as this complainant is concerned if we look to his earlier version in the complaint we do not find anything mentioned about the injuries caused to Taraben by the accused as well as the blood- stained clothes of Taraben etc. This also in the opinion of this court is quite material omission which can affect the evidentiary value so far as the complainant-Sajjanbhai is concerned. Ultimately we will have to appreciate and find out from the evidence of Taraben as to what extent her evidence is truthful and reliable and for this we will have to find out as to whether it suffers from only improbability or inconsistency or improvement or not If the evidence of this witness fails to satisfy this court on the ground of probabilities and also on the ground of the patent infirmities like the material contradictions etc. her evidence will have to be discarded even though she has come out which a charge of rape having been committed by the accused As seen above the learned Sessions Judge has clearly stated that Taraben could not be relied upon so far as the charge of rape is concerned and the learned Sessions Judge has rightly not relied upon taking into consideration the overall evidence brought on the record. If a witness displays a tendency of falsely implicating a person of a serious charge of rape quite contrary to the evidence on the record as well as the probabilities of the case the court would be quite slow in straightway relying upon such evidence. If a witness displays a tendency of falsely implicating a person of a serious charge of rape quite contrary to the evidence on the record as well as the probabilities of the case the court would be quite slow in straightway relying upon such evidence. Such sort of factual improvement reflecting malice would obviously put the court on the guard of strictly scrutinizing her evidence before accepting the same. It is not that the evidence of prosecuterix because of some infirmities is always to be rejected. But at the same time when some patent infirmity creating some doubt regarding the credibility creeps in her evidence the court should be much more on the guard and should not be swayed the blind motion of the charge she being rapped accordingly if we appreciate the evidence of the prosecutrix- Taraben she in her examination-in-chief has staled that while committing the rape the accused torn down her knicker into two parts and that she had carried the same to her house If we seen the evidence of Dr. P. P. Soni (PW-1 EX-9) who examined Taraben he has stated that she had put on these clothes (para-2 of the deposition page-13 of the paper-book) This sounds completely strange as no one would put on completely torn knicker The matter does not rest here as it further appears from the evidence of Taraben that she attacked the accused with nail as a result of which he started bleeding and the said blood fell on his shirt. No such blood-stained shirt of the accused is attached by the Investigating Agency If indeed such a blood-stained shirt was available the Investigating Officer would not have missed to attach the same as the same was a very material and important piece of evidence connecting the accused with the crime. It further appears from her cross-examination that the road going from Bhilada to Vankaner was a road on which the buses were going and coming and there were many boys and girls coming to the bus stand. Not only that but according to the prosecution the incident in question took place only at a distance of about 1/2 ft. from the main road. Under such circumstances it is highly improbale that the accused would dare to rape on the prosecutrix as alleged. 5. 2 Mr. Not only that but according to the prosecution the incident in question took place only at a distance of about 1/2 ft. from the main road. Under such circumstances it is highly improbale that the accused would dare to rape on the prosecutrix as alleged. 5. 2 Mr. Panchal further submitted that the most surprising is the evidence of the brother of the prosecutrix Vasant (PW-4 EX-14) who is aged 20 years. According to this witness he has seen the alleged incident of rape and when he reached the spot the accused was lying over Tara. Despite this fact Vasant who is aged 20 years does nothing to save her sister except chasing after the accused and throwing some stones at him etc. Any brother worth the name if is truely a brother his blood would boil on seeing such incident and the instinct of revange and finish the accused would be the foremost and irrestible and yet nothing of the sort we find in this case. This also speaks about the gross improbability of the case. This person when he gave a statement before the police did not utter a word about the rape and when he gave evidence before the court he came out with a definite charge of rape against the appellant. Thus when the evidence of a witness is found to be of changing colours an conveniently exaggerating the prosecution case with a view to get inflicted stringent sentence it would be simply risky to rely upon such evidence. 5. 3 From the certificate Ex. 24 it appears that the accused came to be examined on 14. 12. 1985 by Dr. I. N. Rajvadia and no injury was noticed on his person. This totally belies the evidence of the prosecutrix. It also appears that all the prosecution witnesses when they gave their respective statement during the course of the investigation it was alleged that the accused had put on Lungi and when they came to give evidence before the court it was staled that at the point of time when the incident took place the accused had put on a pent. Even so far as the trivial injury on the person of the prosecutrix is concerned neither/there is any reference about the same in the complaint nor any witness has stated anything about the same in their statement before the police. Even so far as the trivial injury on the person of the prosecutrix is concerned neither/there is any reference about the same in the complaint nor any witness has stated anything about the same in their statement before the police. It was only when the Doctor examined the prosecutrix some injuries wore notice regarding which Panchnama Ex. 22 came to be prepared on 13. 12. 1985 i. e. after the Doctor examined her. Under such circumstances how any weightage can be given to such type of evidence. 5. 4 It is further alleged by the prosecution that a book and a pen which the prosecutrix was carrying at the relevant point of time were ultimately attached from the scene of the offence after 24 hours. This also is highly improabale. In the first place if at all such things were lying there it would not lie there for 24 hours as somebody is bound to pick up and bound to take away the same and in the second place these were the itmes which either Maganbhai or Vasnat could have picked up and still a scene is created as if that the incident took place at a particular place. This also not only does not inspire any confidence but creates a grave doubt about the genuineness of the whole case. 5. 5 On the going through the judgment it transpries that the trial court while convicting the accused has giving importance to (1) torn kincker of the prosecutrix (2) finding of the book pen and handkerchief of the prosecuterix; and (3) injuries on the person of the prosecutrix. As discussed above all these things have no significance when examined in the light of the overall facts and probabilities of the case. ( 6 ) MR. K. P. Raval the learned APP countering the arguments of Mr. Panchal as a last ditch effort submitted that the evidence of the prosecutrix Taraben (PW-3 Exh-13) should be accepted and relied upon for the simple reason that there was no earthly reason whatsoever for her to falsely and maliciously implicate the accused if he indeed was an innocent as he now pauses to be more particularly on a charge no less serious than that of the rape. In the opinion of this Court this is hardly an argument worth the name to be entertained. In the opinion of this Court this is hardly an argument worth the name to be entertained. The fate of the accused facing the criminal trial cannot be permitted to be left to be determined on the basis of answer to some abstract questions as to why a particular witness should falsely implicate the innocent person. That is not the way to look at the charge against the accused to reach at the ultimate conclusion at the end of trial In fact the end result in any criminal trial ultimately and always depends upon and is reached at on the basis of testing the overall credibility of oral documentary and/or circumstantial evidence brought on the record. The criminal trial means testing the evidence of the witness and finding out whether it inspires any confidence in the mind of Court or not. The credibility of the witness therefore is always a matter of confidence that it inspires regarding its intrinsic genuineness and truthfulness of its overall dependability beyond any maner of doubt and this doubtless dependability of the witness in turn depends upon the answers to the questions like (i) Is the prosecution story probable ? (ii) Does it suffer from any patent infirmities like enmity between the parties ? (iii) Does it suffer from any vital contradiction which cuts at the very root of the prosecution case ? and (iv) Whether reading the evidence of the prosecution-witness as a whole does it inspire the confidence of the court ? etc. Ignoring the above guiding principles if the mechanical general and the abstract test as suggested by the learned APP is to be applied viz. that witness has no earthly reason to falsely implicate the accused then the court is bound to commit some mistake which may ultimately result into serious miscarriage of justice. Whether any prosecution witness has any ulterior motive to falsely implicate any accused person or not is indeed always difficult to find out as such motives are never writ large on the face of witnesses to be easily marked. Whether any prosecution witness has any ulterior motive to falsely implicate any accused person or not is indeed always difficult to find out as such motives are never writ large on the face of witnesses to be easily marked. In fact such motives lie deep down in the inter-most layers and the recesses of the heard of the witnesses where no one has any access Thus if the arguments of the learned APP are to be accepted it comes to this that there is no need to test the evidence of the prosecutrix and for that purpose any prosecution-witnesses by cross-examining him/her and that each and every allegation levelled in the examination-in-chief made before the court should be accepted at its face-value as a gospel truth sufficient enough to convict the accused for the crime alleged against him. This is not the law This also is not the way to appreciate evidence and certainly not the way to do justice. Howsoever heinous and revolting in nature the crime may be creating emotional turmoil in the heart and mind of the Judge the same cannot be permitted to blinden the judicial vision from objectively appreciating the case in its proper perspective by seeing whether apart from the heinousness of the crime there was any credible evidence worth the name to connect the accused with the crime alleged against him. Between the allegations of the heinousness of the crime on the one hand and the accused on the other hand before any conclusion as to the guilt of the accused is reached in between the two there is a definite gap which is required to be bridged only by the cogent and convening reliable prosecution evidence This gap can not be bridged bogging some answer to the abstract hypothetical question like the one raised by the learned APP in the instant case as to why the prosecutrix or for that purpose any other prosecution witness should falsely implicate any innocent person as the accused and that too on some serious charge ? Thus in the instant case as seen above when the probability of the case revolts against the very intrinsic credibility of the victim witness the doubt arising out of the same has got to be resolved in favour of the accused. Thus in the instant case as seen above when the probability of the case revolts against the very intrinsic credibility of the victim witness the doubt arising out of the same has got to be resolved in favour of the accused. ( 7 ) THUS having carefully examined the entire prosecution evidence brough on the record it appears that the same is not trust-worthy and credible enough to record the order I of conviction and sentence. When such is the fact-situation there is no alternative left with this Court but to quash and set-aside the impugned judgment and order of conviction and sentence and acquite the appellant. ( 8 ) IN the result this appeal is allowed. The impugned judgment and order of conviction and sentence is hereby quashed and set- aside. The bail bond to be cancelled. Fine if paid to be refunded. Notice for enhancement of sentence is discharged. Appeal Allowed. .