KESHAVANANDA HARINARAYAN SWAMI v. STATE — 1996 DIGILAW 340 (GUJ)

S. D. DAVE, J. ( 1 ) THE principle sought to be canvassed at the Post-Conviction stage is "bail and not the Jail". Appellant, Keshvananda Swami has been convicted by the learned Addl. Sessions Judge, Jamnagar, in Sessions Case No. 118 of 1994 vide the orders dated 18/03/1996, for the commission of the offence punishable under Sec. 376 (2) (c) I. P. Code, and has been sentenced to the R. I. for 10 years, and to a fine of Rs. 35,000. 00; in default to the S. I. of two years. The appeal presented by the appellant has been admitted. The notice was given to the State on the question regarding the entitlement of the appellant-accused of being enlarged on bail during the pendency of his appeal before this Court. ( 2 ) WE thus concerned with a prayer for bail at the post-conviction stage. The endeavour on the part of the learned Counsel for the appellant was to convince us that, regard being had to the overall evidence on record, it is not possible for a court to come to the conclusion that, ultimately at the conclusion of the appeal the appellant shall necessarily have to undergo the sentence awarded to him by the trial Court. In other words, the contention coming from learned Counsel for the appellant is that, if ultimately the proceedings against the appellant-accused are to result in acquittal and if the hearing of the Criminal Appeal, as usual, is likely to take very long, the appellant-accused would be entitled to the orders of bail. A reference in this respect requires to be made to the decision rendered by the Supreme court in Kashmira Singh v. State of Punjab, 1977 (4) SCC 291 . The say of the supreme Court is that, so long as the Supreme Court is not in a position to hear the appeal of an accused, within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted. The say of the supreme Court is that, so long as the Supreme Court is not in a position to hear the appeal of an accused, within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted. It is pointed out that, the very fact that, the Supreme Court has granted to the appellant special leave to appeal against his conviction, shows that, in the opinion of the Supreme Court, he has prima facie a good case to be considered and in the circumstances it would be highly unjust to detain him in jail, any longer during the hearing of the appeal. A reference is also required to be made to another Supreme Court pronouncement in Gudikant narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh, 1978 (1) scc 240 . It has been pointed out that, various aspects, including the nature of the charge and the nature of the evidence would be relevant and pertinent. It has been said that, it makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded into custody. ( 3 ) ON the basis of these pronouncements of the Supreme Court, it is being urged before us that, in the instant case, the evidence as a whole would not lead us to believe that, ultimately the proceedings would result in the confirmation of the conviction of the appellant-accused and if that would be the position, justice would demand that, instead of keeping the appellant behind the bars for a pretty long time and ultimately saying him that he has been acquitted and he is a free citizen would be meaningless. With a view to appreciate this contention, a reference to certain aspects of the evidence was found to be necessary. Learned Counsel for the appellant mr. Buddhbhatti has taken us to various aspects of the case and to some extent to the fine details of the evidence tendered by the prosecution. The emphasis being laid by the learned Counsel is that, the evidence brought in by the prosecution falls short of establishment of the charge for the offence punishable under Sec. 376 (2) (c) i. P. Code. On the other hand, learned Government Counsel Mr. The emphasis being laid by the learned Counsel is that, the evidence brought in by the prosecution falls short of establishment of the charge for the offence punishable under Sec. 376 (2) (c) i. P. Code. On the other hand, learned Government Counsel Mr. D. N. Patel urges, with the assistance of the evidence on record that, except some minor discrepancies apart, the substratum of the case of the prosecution been duly proved remains intact and that, when the prosecutrix remains unshaken so far as the thrust of the charge is concerned, it cannot be inferred or legitimately conceived that in all probabilities the accused would ultimately be acquitted by this Court on the hearing of the appeal. Learned Government Counsel, therefore, urges that, the prayer for the bail coming from the appellant at the post-conviction stage, cannot and should not be countenanced by us. ( 4 ) LEARNED Government Counsel Mr. Patel while placing reliance upon the supreme Court pronouncement in the State of Punjab v. Gurmit Singh and Ors. , JT. 1996 (1) SC 298 : [ 1996 (2) SCC 384 ] also urges that, the Courts must, while evaluating evidence in the rape cases should remain alive to the fact that in such cases no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour. Learned Government Counsel urges that, in Indian society a woman or a girl would not come out with a false accusation against a man and expose herself to a great peril. If a girl or a woman chooses to launch a false and frivolous prosecution against a man for such a charge, she knows that she would be an outcast in the society with practically no chance of rehabilitation. Naturally, therefore, she would always be reluctant to involve anybody at the cost of her own honour and life. ( 5 ) WE do not for a moment suggest that in a rape case if the evidence of a prosecutrix is found worthy of credence and inspires confidence, we, as a rule, should insist for independent corroboration. Naturally, therefore, she would always be reluctant to involve anybody at the cost of her own honour and life. ( 5 ) WE do not for a moment suggest that in a rape case if the evidence of a prosecutrix is found worthy of credence and inspires confidence, we, as a rule, should insist for independent corroboration. Asking for independent corroboration to the say coming from a prosecutrix, which otherwise appears to be creditworthy and unblemished so far as the substratum of the case of the prosecution is concerned, would amount to nothing less than an insult to the injury, which she has suffered at the hands of the accused. ( 6 ) OUR endeavour, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which ultimately the appellant-accused stands fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corrollary, we shall have to say that, if ultimately the appellant-accused appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. It would be unjust incarceration for the offence for which ultimately he is found not guilty. ( 7 ) WE have been taken through the evidence laid by the prosecution with all the necessary details. Before proceeding ahead to express our opinion in respect of the evidence presented by the prosecution, we may say by way of a brief resume that, the appellant who is popularly known as "keshavananda Swami" has got an establishment at Dwarka known as "sanatan Seva Mandal". The appellant-accused inter alia used to run an Ashram inter alia with a hostel or a boarding house, not only for the boys but for the girls also. It appears that, at all the relevant times, about 30 girls and 250 boys used to stay in the hostel. There were gossips in the town which had assumed larger proportions in the town and ultimately the inquiries were initiated. It appears that, at all the relevant times, about 30 girls and 250 boys used to stay in the hostel. There were gossips in the town which had assumed larger proportions in the town and ultimately the inquiries were initiated. These inquiries and the investigations which had followed had led to the filing of about 9 cases against the appellant-accused, inter alia for the offence punishable under Sec. 376 I. P. Code. We have been told that, out of these cases, as many as eight cases have resulted in the acquittal. So far as the case on hand is concerned, it requires to be appreciated that, during the investigation or inquiry statements of various people came to be recorded and ultimately on 18/06/1994, the complaint of Mitesh Shah, a boy aged about 15 years, who happens to be the elder brother of victim Rita came to be registered. Mitesh Shah in this belated complaint has stated that, a second marriage of their mother with a man staying at Bombay had obliged to take shelter in the Ashram, and before a period of about three months at about 1-00 p. m. he had seen his sister Rita coming out of the room of the appellant-accused and she was in tears and she had complained to him that, she was ravished by the appellant against her will and without her consent. This f. I. R. has resulted in the prosecution and at the end of trial in the conviction of the appellant-accused. ( 8 ) THE Court below was required to firstly decide as to whether Rita could be said to be under the age of 16 years at the relevant time. The school records which show the victim to be a minor have not been relied upon by the learned Addl. Sessions Judge, on the ground that, the persons who had gone for furnishing the necessary date and completing the records have not been examined. The reliance has been placed upon the medical evidence on record, which would go to show that, victim Rita could be in the age around of 15 to 17 years. Taking into consideration the credence of the say of the girl Rita during her evidence, the Court below has come to the conclusion that, she should be taken as a girl below the age of 16 years. Taking into consideration the credence of the say of the girl Rita during her evidence, the Court below has come to the conclusion that, she should be taken as a girl below the age of 16 years. We have examined the evidence in this respect with the assistance of learned Counsels for the appellant and for the State. We shall have to accept that, victim Rita must be between the age group of 15 to 17 years at the relevant time. This evidence would never lead us to a conclusion that the victim Rita had completed in all probabilities the age of 16 years. ( 9 ) GOING through the evidence tendered by victim Rita, we could see that there are certain discrepancies in her evidence. Her earlier version was that, she could be ravished by the appellant-accused more than once. Putting her version precisely, we should say that, according to her, this relationship could have been repeated for 5 to 6 times. Any how, ultimately during her evidence at Exh. 11 she says that, this had happened only once. Thus, it is true that some exaggeration was made not in the evidence before the Court below but in the F. I. R. also. But it should not be over- looked that, the F. I. R. could be filed at a very late juncture when the hue and cry in the town had reached at its peak and the police had gone in search of the brother of the prosecutrix, Mitesh Shah, so that if necessary and expedient his f. I. R. could be taken. Because of this discrepancy, we are not in a position to say that, the say of victim Rita regarding a one-time affair or occurrence could be thrown overboard. She has stated in clear words that, she was called in the room of the appellant-accused who was in loco parentis, not for her alone but to all the girls, staying in the hostel of the Ashram and was made to remove her skirt and under garments, and to lie down on a mattress, and later on she was ravished. This say which is the very basis for the establishment of the offence punishable under Sec. 376 I. P. Code remains intact throughout. This say which is the very basis for the establishment of the offence punishable under Sec. 376 I. P. Code remains intact throughout. We, therefore, are not inclined to accede to the request coming from learned Counsel for the appellant to throw the entire evidence of the prosecutrix overboard, because there has been some exaggeration. ( 10 ) IT was sought to be urged with great vehemence that, there has been a very late filing of the F. I. R. This is a fact apparent and obvious. The girl and her brother were not in a position to say anything at the relevant time. The Ashram of which the appellant-accused was the supremo was their only shelter on earth. Boy Mitesh, it appears, had to leave the hostel later on and had stated to work at a local hotel and he used to stay there. When the inquiries in the affairs of the Ashram had started he was contacted and his belated F. I. R. could be registered. Appreciating the circumstances under which the victim and her brother were placed and the circumstances in which the inquiries had started and ultimately the complaint could be registered we do not feel it proper and expedient to discard the say of the prosecutrix on the ground of the late filing of the F. I. R. The fiduciary capacity enjoyed by the accused and hopeless present and future of Mitesh and Rita appear to be the reason for a long silence and a belated complaint. ( 11 ) IT was sought to be suggested for and on behalf of the appellant-accused that, there is no corroboration from the medical evidence. We have seen the medical evidence under a close look. It is true that the medical expert could not see any injury or signs of violence. Moreover, it could be seen during the medical examination that the hymen was found to be intact and the vaginal passage was a narrow one. But it should not be overlooked that the offence of rape would be complete in other circumstances also. It is not always necessary that there should be a complete action of coitus for the constitution of the offence punishable under sec. 376 I. P. Code. A mere touch of visiting organ with the visited organ would suffice to constitute the offence of rape. It is not always necessary that there should be a complete action of coitus for the constitution of the offence punishable under sec. 376 I. P. Code. A mere touch of visiting organ with the visited organ would suffice to constitute the offence of rape. The medical evidence says that, the possibility of a partial sexual action cannot be ruled out. Therefore, merely because of the said two aspects coming out from the medical evidence, we would not like to throw out the case of the prosecution coming from the victim that there had been a sexual action upon her against her will and without her consent. ( 12 ) WE are conscious of the fact that, ordinarily if the evidence of a prosecutrix appears to be worthy of credence and if the discrepancies are brought on record are not major and vital in nature so as to nullify the case of the prosecution, then the Court should not seek for any corroboration. This settled legal position has been reiterated time and again. Learned Government Counsel in this respect draws our attention to the say of the Supreme Court in case of the State of Punjab v. Gurmit singh and Ors. (supra ). The Supreme Court prefers to put this principle in the following manner :". . . . . . The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. "here we could see a lot of corroboration coming from the evidence of Mitesh, the complainant. He has stated that, on that fateful day he was sitting in the campus of the Ashram near the personal room of the appellant-accused. Mitesh says that, he had seen victim Rita coming out of the room of the appellant-accused and she was found to be sobbing. Mitesh says further that, upon the inquiries being made by him, victim Rita had narrated the entire incident before him and later on he himself had gone to the appellant-accused making a grievance in this respect. His say is that, he was threatened of dire consequences and therefore, he had not revealed this to anybody. Any how, the fact remains that, Mitesh saw the victim coming out of the room of the appellant and on inquiry the victim had narrated the incident to him. Thus, Mitesh fully supports and corroborates the say of the prosecutrix. Therefore, though ordinarily we should not be in search of the corroboration to the evidence of the prosecutrix in such cases, we find complete corroboration in this respect coming from the evidence tendered by Mitesh, the brother of the victim. Thus, Mitesh fully supports and corroborates the say of the prosecutrix. Therefore, though ordinarily we should not be in search of the corroboration to the evidence of the prosecutrix in such cases, we find complete corroboration in this respect coming from the evidence tendered by Mitesh, the brother of the victim. We find it extremely difficult to discard this evidence and not to allow it to influence our conscience when we are of the job of examining the question of the existence or otherwise of a case against the appellant and that too at a post-conviction stage. ( 13 ) IT is true that the appellant-accused is a Swami. He could have his own inhibitions and limitations. But the evidence of Dr. Gupta would go to show that the appellant-accused was found not to be incapable of having a coitus. Therefore, the proposed inhibitions and the limitations and the tradition of celibacy amidst which the appellant-accused is said to be living at the relevant time would not lead us to believe that he was incapable of doing what has been alleged against him. ( 14 ) THUS, upon a scanning of the evidence, we are unable to agree with the contentions coming from learned Counsel for the appellant- accused that, either there is absolutely no case against the appellant- accused or that the evidence against him is so weak or feeble in nature, that, ultimately in all probabilities the proceedings would terminate in favour of the appellant-accused. For the very same reason, we are unable to accept the contention coming from the appellant-accused through his learned Counsel that, it would be meaningless, improper and unjust to keep the appellant-accused behind the bars for a pretty long time till he is found not to be guilty of the charges. ( 15 ) WE would also prefer to place, on a projected pedestal, one more aspect, which may tend to work against the appellant-accused when he asks for bail at a post-conviction juncture, on the ground of an unbelievable case against him. Many principles found to be relevant in Bail Jurisprudence may remain the same, irrespective of the stage, either pre-trial or post-conviction. But the measure to examine the question regarding the existence or otherwise of a prima facie case, gets altered, though not in kind, but in degree. Many principles found to be relevant in Bail Jurisprudence may remain the same, irrespective of the stage, either pre-trial or post-conviction. But the measure to examine the question regarding the existence or otherwise of a prima facie case, gets altered, though not in kind, but in degree. ( 16 ) AT a pre-trial stage the material available and open to scrutiny, for the search of a prima facie case against the accused, would be the police papers or the chargesheet if already filed. The accused has no say in the matter. The aspects tending in his favour generally remain non-highlighted. The judicial mind which is called upon to decide the prime question "bail or Jail ?" does not get any assistance of the probable defence to be canvassed by the accused at the time of trial. The whole game appears to be a one-sided one. But the things in their entirety get changed, when bail is prayed for at the post-conviction stage. The evidence laid by the prosecution, along with the defence is subjected to a judicial scrutiny during the trial. The judicial mind, on a careful consideration of entire material comes to a conclusion that, the case of the prosecution, duly established by legal, reliable and unimpeachable evidence, requires to be accepted. This conclusion is followed by a judgment of conviction and later on by a judgment of sentence. The presumption of innocence vanishes, giving way and place to a finding of guilt. The case of the prosecution which was hitherto only an accusation against the accused, gets the acceptance and recognition by a judicial forum established under Law. ( 17 ) BECAUSE of this metamorphosis, while countenancing the plea of the convict that, there does not appear to be a prima facie case or that he, in all probabilities will be able to secure an acquittal at the hands of the Appellate Court, will always require a scrutiny. But again, this cannot be done by calling upon the Appellate court hearing the Bail Application to marshal the entire evidence on record. This exercise does not appear to be permissible. The accused who is already convicted should be able to point out glaring infirmities in the case of the prosecution which would take out the vital aspects touching the very substratum of the case of the prosecution. This exercise does not appear to be permissible. The accused who is already convicted should be able to point out glaring infirmities in the case of the prosecution which would take out the vital aspects touching the very substratum of the case of the prosecution. If the Appellate Court hearing the Bail Application is convinced that, due to such infirmities the case of the prosecution is apparently impaired to a significant extent, and that such an apparent impairment is likely to result in the acquittal of the appellant-accused, the task of the Appellate Court would be easier, permitting it to lean in favour of granting bail than to refuse it. But, if the Court is not able to take such a view, the course which appears to be open is to reject the plea of bail. We may emphasize; the infirmities to be pointed out must be vital, touching the very substratum of the case of the prosecution. They should be apparent or discernible without much efforts because, obviously the Court cannot be called upon to marshal the entire evidence and to examine it under a miscroscopic vision at the post-conviction bail stage. ( 18 ) THUS, the facts and circumstances of the case and the nature of the evidence to which we have adverted earlier, and the principles indicated above, would not oblige us to take a view in favour of the appellant. ( 19 ) THE prayer for the bail, therefore, coming from the appellant-accused cannot be countenanced and the same is hereby rejected. The notice in this respect shall stand discharged. ( 20 ) WE would like to make it clear that, learned Counsel Mr. Buddhbhatti and learned Government Counsel Mr. D. N. Patel have opted for reasoned orders, either in case of rejection or the allowing of the application. It is, therefore, that, we have assigned the reasons and that too in detail. Our exercise was, of course, limited to the purpose of examining the propositions and combats centering round the question of Bail. .