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2009 DIGILAW 488 (GUJ)

Dineshbhai Naginbhai Vasava v. State of Gujarat

2009-07-21

K.S.JHAVERI, Z.K.SAIYED

body2009
JUDGMENT : K.S. Jhaveri, J. The above appeal under section 374 of the Code of the Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 22.3.2007 passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No.43 of 2006, whereby the appellant has been convicted for offence under section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.2000/-, in default, to undergo further rigorous imprisonment for a period of six months and convicted him under section 506(2) of Indian Penal Code and ordered to undergo rigorous imprisonment for two years and fine of Rs.500/-, in default, to undergo rigorous imprisonment for two months. All the sentences were ordered to run concurrently. 2. The prosecution case, in short is as under: 2.1 The complainant herself is the victim. She is residing in village Mota Mandala along with his father,mother, four sisters and three brothers. Her father is serving as peon in City Survey Office, Dediyapada. On the day of the incident the prosecutrix had gone to cut grass in the nearby field where sugarcane is grown. While she was cutting grass, her Aunt's husband (Fua) Dineshbhai Naginbhai came there. He caught the prosecutrix by hand and asked her to go along with him. When the prosecutrix refused, he threatened to kill her and forcibly took her to sugarcane field. When the prosecutrix started shouting, he gagged her and committed rape on her against her wish. After raping he threatened her not to tell about it to anybody. The prosecutrix went home and informed about the incident to her father. Thereafter the complaint came to be filed against the accused. 2.2 Necessary investigation was carried out and the statements of several witnesses were recorded. During the course of investigation, respondent was arrested and ultimately charge-sheet was filed against him. 2.3 Thereafter as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No.43 of 2006. The trial was initiated against the respondents. 2.4 To prove the case against the accused, the prosecution has produced the following documents: 1 Exh.13 – Yadi from Dediapada police station. The trial was initiated against the respondents. 2.4 To prove the case against the accused, the prosecution has produced the following documents: 1 Exh.13 – Yadi from Dediapada police station. 2 Exh.14 – Doctor's certificate of Nirmalaben 3 Exh.15 – Treatment report of victim 4 Exh.17 – FSL Report 5 Exh.18 – Serological report 6 Exh.10 – Report from Physical Laboratory 7 Exh.21-24 – Receipts of signature of panchas taken from muddamal. 8 Exh.25 – Panchnama of clothes of victim. 9 Exh.26-27 – Receipts of signatures of panchas. 10 Exh.29 – Panchnama of body of accused. 11 Exh.29 – Panchnama of scene of offence. 12 Exh.31 – school leaving Certificate of victim. 13 Exh.35 – Yadi to Police Sub-Inspector. 14 Exh.36 – Doctor's certificate of Dineshbhai Naginbhai. 2.5 To prove the case against the accused, the prosecution has examined following witnesses: 1. Deposition of victim Nirmalaben M. Vasava (Exh.10). 2. Deposition of M.B. Vasava – father of victim(Exh.37). 3. Deposition of Dr. Dayaram G. Vasava (Exh.12). 4. Deposition of Dr. Satyam Shivam Sundaran Devprasad (Exh.34). 5. Deposition of Pirubhai H.Mogal (Exh.20). 6. Deposition of A.V. Katkar (Exh.38). 2.6 At the end of trial, after recording the statement of the accused under section 313 of Criminal Procedure Code, and hearing arguments on behalf of prosecution and defence, the learned Sessions Judge passed the order of conviction and sentence as stated herein above. 3. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the original accused has preferred the present appeal. 3.1 Mr. P.M. Raval, learned Advocate for the appellant submitted that the judgment and order of the Sessions Court is against the provisions of law and the Sessions Court has not properly considered the evidence led by the prosecution. He submitted that the evidence of the witnesses are full of infirmities and improbabilities and the learned Judge has totally misread the evidence on record, more particularly the evidence of Dr. Dayaram. According to him there are no eyewitnesses nor any one could hear the shouting of the victim, which is highly impossible when the alleged incident took place at around 1-30 in the noon. He submitted that these facts were overlooked by the learned Judge. 3.2 Learned counsel for the appellant contended that in view of the evidence of Dr. Dayaram. According to him there are no eyewitnesses nor any one could hear the shouting of the victim, which is highly impossible when the alleged incident took place at around 1-30 in the noon. He submitted that these facts were overlooked by the learned Judge. 3.2 Learned counsel for the appellant contended that in view of the evidence of Dr. Dayaram vide Exh.12 read with the medical certificate which clearly states that the victim is habituated for repeated intercourse in past, the impugned judgment is required to be quashed and set aside. He has further submitted that the prosecution case is not supported by any independent witness and therefore the impugned order deserves to be quashed. 3.3 He further submitted that in the complaint the prosecutrix stated that she was dragged and clothes were torn, but the report of the FSL has not supported the case of the prosecution and therefore the accused is required to be acquitted. He further submitted that there are no injury marks on the private parts of the body of the victim and therefore this was a case of pre-consent and in that view of the matter the accused is required to be acquitted. 4. Mr. Kodekar learned A.P.P. appearing for the State submitted that the Sessions Court has considered the matter in depth and the prosecution has proved all the ingredients of the evidence against the present appellant and no case is made out to take a different view of the matter. 4.1 He further contended that since the appellant is a guardian of the victim, the contention of consent is not permissible under the Indian society. Even otherwise, semen was found from the private part of the victim and also from the clothes of the victim. In that view of the matter decision of Sessions Court is just and proper. 4.2 Mr. Kodekar further contended that injury is not possible because grass was there at the place of incident and apart from that merely because injury is not there, it should not be taken as consent and benefit of doubt should not be given to the accused. 4.3 Mr. Kodekar further contended that from the plain reading of the complaint and evidence on record it is clear that accused is a loco parentis (Fua) of the victim but he has committed a crime which was established by the prosecution. 4.3 Mr. Kodekar further contended that from the plain reading of the complaint and evidence on record it is clear that accused is a loco parentis (Fua) of the victim but he has committed a crime which was established by the prosecution. In that view of the matter decision of Sessions Court is just and proper. 5. We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the prosecution before the Sessions Court and also considered the submissions made by the learned Advocates for the parties. 6. The prosecutrix was examined at Exh.10. She deposed that on the day of the incident at about 1.30 pm she had gone to the field for cutting grass. At that time the accused came there, forcibly took her to the sugarcane field in an open place, threatened her by keeping the sickle on her neck, gagged her and committed rape. Thereafter the accused again threatened her and told her not to disclose about the same to anyone and went away. The prosecutrix went home and informed her father about the incident and thereafter the complaint came to be filed. The prosecutrix is known to the accused. She has identified the accused as the accused is her aunt's husband. She has also identified her clothes as well as the clothes of the accused. Though she was cross-examined thoroughly her evidence could not be demolished by the defence. There was no reason to doubt the statement of the prosecutrix. 6.1 Prosecution witness No.5, father of the prosecutrix was examined at Exh.37. He is serving, but on the day in question he was on leave and was sleeping at home. He has deposed that the prosecutrix had gone to cut grass and she came crying an informed him about the incident including the name of the accused. Thereafter immediately the complaint was filed. He was also cross-examined, but nothing incriminating has come out in the said cross examination. 6.2 Witness No.2 Dr. Dayaram Vasava was examined at Exh.12. He deposed that the prosecutrix has clearly explained about the rape committed by the accused. Her story before the doctor fully corroborates with the complaint filed by her. The doctor has clearly opined that the prosecutrix had been raped. 6.2 Witness No.2 Dr. Dayaram Vasava was examined at Exh.12. He deposed that the prosecutrix has clearly explained about the rape committed by the accused. Her story before the doctor fully corroborates with the complaint filed by her. The doctor has clearly opined that the prosecutrix had been raped. In the cross-examination he has also stated that it is not necessary that there should be injury marks in every rape case. It was also proved that there was semen on the clothes of the prosecutrix. Same type of semen was also found on the pants of the accused. FSL report clearly support this aspect and therefore there is an irresistible conclusion that the accused had intercourse with the prosecutrix. The clothes were attached under Panchnama which was duly proved. 6.3 Dr. Satyam Shivam Sundaray (PW4) was examined at Exh.34. he has examined the accused and issued certificate which is at Exh.34. According to his deposition also it was proved that the accused was physically fit to have intercourse. 6.4 Thus, there is un-rebuttable evidence on record, including the medical evidence, to show that the accused had forcibly taken the prosecutrix to the sugarcane field and after threatening her committed rape. All the evidences on record corroborate with each other. Therefore the definite conclusion is that the accused has committed the offence under section 376 and 506(2) of Indian Penal Code. 6.5 It is required to be noted that the accused is known to the prosecutrix and her family. He must be having knowledge about her family members and their whereabouts at the relevant time. He must also be knowing that the prosecutrix alone is cutting grass and therefore nobody is likely to come there. When the accused went to the prosecutrix, she may not have raised an alarm because he is her aunt's husband. However, the accused caught hold of her, threatened her and forcibly took her to sugarcane field and committed rape. It was the plea of the prosecutrix that when she started raising shouts, he gagged her and threatened to kill her. Therefore, there is no force in the contention that there was no resistance form the prosecutrix and there was consent of the prosecutrix. It was the plea of the prosecutrix that when she started raising shouts, he gagged her and threatened to kill her. Therefore, there is no force in the contention that there was no resistance form the prosecutrix and there was consent of the prosecutrix. It is also required to be noted that the prosecutrix had gone to the field to cut grass and obviously there was grass in the field and it cannot be said that she must have suffered injury while dragging her. Even the panchnama of the place of incident does not show that the said place is filled with stones and shrubs so as to cause bodily injury. 6.6 It is also required to be noted that the incident has happened in a field. The accused had forcibly taken the prosecutrix to sugarcane field and committed rape. Usually no person would commit rape at a place where there will be public. In such cases there cannot be direct eye witnesses. Therefore, the contention of the appellant that there is no eye witness to the incident cannot be accepted. However, the evidence of the prosecutrix and other evidence clearly go to show that the accused have committed the crime and there is no need to have any support from an eye witnesses. The prosecutrix is about 18 years old and she is known to the accused. She had no reason to falsely implicate the accused in the alleged crime especially when he is her aunt's husband. 7. At this stage we may mention that the appellant-accused is the aunt's husband of the prosecutrix. He is aged about 46 years. The prosecutrix is aged about 19 years. There is an age gap of 27 years. In the present case the appellant is in loco parentis inasmuch as he is the husband of the sister of the father of the victim. The fact that her own relative who is a fatherly figure to her had committed rape on her will always haunt on her mind in the remainder of her life. This is an aggravating factor. Even if there was consent on the part of the prosecutrix, then also it was the bounden duty of the appellant as an elderly member of the family to scold the victim or make her understand the family values and that such an act is not permissible in the Indian Society. 8. This is an aggravating factor. Even if there was consent on the part of the prosecutrix, then also it was the bounden duty of the appellant as an elderly member of the family to scold the victim or make her understand the family values and that such an act is not permissible in the Indian Society. 8. The contention of consent of victim by an elder family member or person place in place of loco parentis cannot be accepted. In the present case the appellant-accused has exploited the relation with the prosecutrix. Nowadays, rape has become a curse in the country. Instances of rape being committed rape are on the increase. But when the relatives and that too in the position of loco parents are venturing upon such crime, it becomes a heinous act. The court has, in such cases, the responsibility to meet out stringent sentences which will send clear and unambiguous messages that society is disgusted by such behaviour. Such sentences, therefore, should meet with the approval of the majority of law abiding citizens. Otherwise the administration of justice will not command the confidence and respect of the society. 9. We are therefore of the firm opinion that the judgment and order of conviction and sentence passed by the Sessions Court is just and proper and no interference is called for. 10. In the premises aforesaid, we do not find any merits in the appeal. The appeal is, therefore, dismissed. Appeal dismissed.