Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 214 (GUJ)

Premjibhai Shamjibhai Barot v. State of Gujarat

2011-03-16

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT M. CHHAYA, J. (1) The present appeal arises out of the judgment and order rendered by the Sessions Court, Ahmedabad (Rural), in Sessions Case No. 149/2003, on 15.3.2004, convicting the appellant for the offences of kidnapping and rape on Tejalben alias Gangaben, aged about 9 years, punishable under Sections 363, 366 and 376 of the Indian Penal Code ["IPC" for short]. The learned trial Judge was pleased to sentence the appellant-accused to undergo R.I for five years and to pay fine of Rs. 500/-, in default to undergo further S.I for six months, for the offence punishable under Section 363 IPC. For committing offence punishable under Section 366 IPC, the appellant was sentenced to undergo R.I for five years and to pay fine of Rs. 500/-, in default to undergo further S.I for six months. The appellant was sentenced to undergo life imprisonment and to pay fine of Rs. 5000/-, in default to undergo further. S.I for one year, for the offence punishable under Section 376 IPC. All the sentences were ordered to run concurrently. (2) The prosecution case, in brief, is that the prosecutrix Tejalben alias Gangaben was aged about 9 years and was studying in 4th standard, ordinarily residing in Vasani Sheri, Ranpur, District: Ahmedabad. As annual examination of the prosecutrix was over and it was summer vacation, the prosecutrix was playing in the falia behind the house of her uncle situated near the residence of the prosecutrix, on 27.5.2003 in the evening hours. It is the case of the prosecution that the appellant-accused came there on a bicycle, lifted the prosecutrix and took her on his bicycle towards crematory situated near Mahaniya temple. It is further the case of the prosecution that by alluring the prosecutrix of giving her a ride on his bicycle, kidnapped her, in the manner indicated above. It is the case of the prosecution that thereafter the appellant-accused committed rape on the prosecutrix. It is further the case of the prosecution that on the next day at about 5.30 A.M. the prosecutrix reached her house and started crying. On asking, the prosecutrix narrated the incident to her mother Hansaben and Hansaben informed her neighbours about the same and Kamalaben, Labhuben and Amadubhai, along with the prosecutrix, went to the crematory. It is further the case of the prosecution that on the next day at about 5.30 A.M. the prosecutrix reached her house and started crying. On asking, the prosecutrix narrated the incident to her mother Hansaben and Hansaben informed her neighbours about the same and Kamalaben, Labhuben and Amadubhai, along with the prosecutrix, went to the crematory. It is the case of the prosecution that on reaching the crematory, they found the appellant-accused there and, therefore, they took him to the police station, where the prosecutrix lodged F.I.R on 28.5.2003. The investigating officer registered the F.I.R and started investigation. The I.O recorded the statements of the victim, her mother Hansaben and other persons, who were found conversant with the facts of the case. On completion of the investigation, the appellant was charge sheeted in the Court of learned J.M.F.C. Dhandhuka for the offences punishable under Sections 363, 366 and 376 of IPC. As the offence punishable under Section 376 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Ahmedabad (Rural), for trial, where it was registered as Sessions Case No. 149/2003. (3) The learned Judge, to whom the case was made over for trial, framed charge against the appellant at Exh.5 for the offences punishable under Sections 363, 366 and 376 IPC. The charge was read over and explained to the appellant, who pleaded not guilty and claimed to be tried. (4) After recording of evidence of the prosecution case was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required by Section 313 of the Code. In his further statement, the case of the appellant was that he had not committed rape and was falsely implicated in the case due to political rivalry. However, no evidence was led by him to substantiate his defence. After appreciating the evidence adduced by the prosecution and hearing the learned counsel for the parties, the learned Judge held that the case of the prosecution against the appellant of the offences punishable under Sections 363, 366 and 376, IPC was proved beyond reasonable doubt. However, no evidence was led by him to substantiate his defence. After appreciating the evidence adduced by the prosecution and hearing the learned counsel for the parties, the learned Judge held that the case of the prosecution against the appellant of the offences punishable under Sections 363, 366 and 376, IPC was proved beyond reasonable doubt. In view of this conclusion, the learned Judge has convicted the appellant of the offences punishable under Sections 363, 366 and 376, IPC and sentenced him, as referred to above, by judgment dated 15.3.2004 giving rise to this appeal. (5) Learned advocate Mr.Raval for the appellant has submitted that the prosecution has not been able to establish the identity of the appellant-accused and no T.I.Parade was held. Mr. .Raval further submitted that from the evidence on record and more particularly the medical evidence, the prosecution has not been able to establish that it is a case of complete rape. Mr. Raval has pleaded that the medical evidence is not sufficient to prove that the offence alleged was committed by the appellant-accused. Mr. Raval asserted that the oral testimony of the prosecutrix alone cannot be relied upon by the prosecution to prove the guilt of the appellant-accused. Mr.Raval stressed that the medical evidence in the form of examination of the accused would show that there was no penetration, as smegma was present on the penis of the appellant. The learned-advocate for the appellant therefore, submitted that the prosecution has not been able to prove the charges levelled against the appellant-accused and the learned Judge has erred in convicting the appellant and, therefore, the appeal deserves to be allowed and the conviction and sentence is liable to be set aside. (6) Learned A.P.P. Mr.Sejpal has opposed this appeal. He contended that the conclusion arrived at by the learned Judge that the prosecution has proved that the appellant has committed offences punishable under Sections 363, 366 and 376, IPC is neither unreasonable nor perverse, but is based upon the evidence on record. It was pleaded that the victim has narrated the incident in most natural manner and there is no reason whatsoever to disbelieve her testimony, more particularly in absence of exaggerations or contradictions or omissions. It was pleaded that the victim has narrated the incident in most natural manner and there is no reason whatsoever to disbelieve her testimony, more particularly in absence of exaggerations or contradictions or omissions. He has submitted that the version of the prosecutrix (PW.4) who was aged about 9 years at the relevant point of time, clearly establishes the fact that the prosecutrix was abducted by alluring her for a ride on the bicycle and was taken away to a remote place where she was raped by the appellant-accused and was detained for whole night. He has further submitted that the testimony of the victim is also corroborated by the injuries proved through medical evidence as well as contents of the complaint. Mr.Sejpal has contended that the evidence of mother of the prosecutrix, Hansaben (PW.5) reveals that she was knowing the appellant and when she and other persons along with the prosecutrix went to the scene of offence in the morning, the appellant was present and even the bicycle was lying there. Mr. Sejpal has submitted that the medical evidence on record fully corroborates the version of the prosecutrix as well as the evidence of PW.5 Hansaben. He has further submitted that even in absence of actual penetration, looking to the medical evidence, the offence committed by the appellant is rape. He has contended that even the evidence, in the form of Serological Report, establishes the fact that the prosecution has been able to prove the guilt of the appellant-accused. The learned counsel for the State submitted that no ground is made out by the learned counsel for the appellant to interfere with the well reasoned conviction of the appellant under Sections 363, 366 and 376, IPC and, therefore, the appeal is liable to be dismissed being devoid of any merits. We have heard Mr. Hemang Raval, learned advocate for the appellant and Mr.D.C.Sejpal, learned A.P.P for the respondent-State. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. (7) The case of the prosecution mainly rests on the testimony of the victim, who is child witness and was aged 11 years when her evidence was recorded. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. (7) The case of the prosecution mainly rests on the testimony of the victim, who is child witness and was aged 11 years when her evidence was recorded. In order to satisfy whether the victim understood the questions put to her and was in a position to give rational answers to those questions or not, the learned Judge has maintained record incorporating the answers given by her to the questions put by the learned Judge. On holding of preliminary inquiry, the learned Judge was satisfied that the victim was capable of giving rational account of what was done to her at the particular occasion and, therefore, has recorded her testimony. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. Considering the evidence of the victim, it can be seen that she has narrated the facts as they were and she has narrated the facts and the incident in a most natural way. The way in which she has narrated the incident, has inspired confidence of the trial Court and also inspired confidence of this Court. Her evidence does not show that she was tutored nor it is so suggested by the appellant in her cross-examination. Even her testimony is corroborated by medical evidence of Dr. Piyush Soni and the evidence of Hansaben, mother of the victim. Therefore, it cannot be said that the learned trial Judge has erred in relying upon the testimony of the victim while convicting the appellant of the offences punishable under Sections 363, 366 and 376, IPC. (8) Hansaben Parmanandbhai, who is examined on oath as PW.5 at Exh. 15, has stated that on coming to know about the incident in question from the prosecutrix, she immediately informed her neighbours about the incident and she and some other persons along with the prosecutrix went to the scene of offence. The witness has mentioned the incident as was mentioned in the complaint. The witness is subjected to cross-examination and there is no any contradictions or omissions as regards the occurrence of the crime. Dr. The witness has mentioned the incident as was mentioned in the complaint. The witness is subjected to cross-examination and there is no any contradictions or omissions as regards the occurrence of the crime. Dr. Piyush Soni, PW.l, is examined on oath at Exh.7. In his deposition, the doctor has stated that on medical examination of the prosecutrix after the incident, bloodstains were found on her vaginal portion and there were injuries on her chest. He has also stated that there were abrasions on the back and even on the right forearm, measuring 3x2x2 cm., of the prosecutrix. The doctor has opined that the injuries on the person of the prosecutrix are possible due to forcible attempt of committing coitus. Similarly, certain injuries found on the body of the accused are corroborated by the medical evidence on record. The doctor has further opined that the injury on the top of private organ of the appellant-accused would be caused when attempt was made to forcibly insert the organ in a case of an infant. The doctor has fully supported the case of the prosecution. (9) The prosecution has also examined Usmanbhai Hussainbhai as PW.3 at Exh. 11. He has stated in his evidence that he was doing the business of cycle repairing and the appellant-accused had taken bicycle on rent from him on 24.5.2003 at about 11.00 a.m and had not given back the bicycle. He had also produced the extract of the register maintained by him. (10) The Investigating Officer Mr. Vinodrai Ramaniklal Dave, who is examined as PW.7 at Exh.20, has categorically denied the suggestion of the defence that the police had arrested the appellant-accused from his house. The sum total of the above discussion would be that the prosecution has been able to prove guilt of the appellant-accused. Only because T.I.Parade was not held, cannot be a ground for not believing the oral testimony of the prosecutrix. The prosecutrix was aged 9 years on the date of the incident and was subjected to cross-examination and nothing was brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The prosecutrix has in her deposition stated that the appellant-accused, after committing crime threatened the prosecutrix with a knife in the morning to run away. The prosecutrix has in her deposition stated that the appellant-accused, after committing crime threatened the prosecutrix with a knife in the morning to run away. The evidence of the prosecutrix, who is child witness, is found to be cogent, convincing and trustworthy, and is fully corroborated by the evidence of her mother Hansaben (PW.5) and the medical evidence. It is not always necessary that there should be a complete action of coitus for the constitution of the offence punishable under Section 376, IPC. A mere touch of visiting organ with the visited organ would suffice to constitute the offence of rape. Therefore, presence of smegma on the genital of the appellant-accused would be of no consequence and it cannot be inferred that since smegma was found on the genital of the appellant, there was no penetration and no offence of rape was committed. The medical evidence on record in the form of medical examination of the prosecutrix clearly indicates that the prosecutrix had received injuries on her vagina, in addition to other injuries on her breast, back and forearm, which would constitute the offence of rape. (11) Cumulatively, therefore, we hold that the prosecution was able to prove the guilt of the appellant-accused and the Sessions Court has rightly convicted and sentenced the appellant-accused for the offences punishable under Sections 363, 366 and 376, IPC and, therefore, no interference with the impugned judgment and order is warranted. (12) "The foregoing discussion would show that the trial Court was justified in recording the conviction of the appellant. Even while awarding sentence the trial Court has used its discretion judiciously and, therefore, we do not find any merits in the appeal. The appeal must fail and stands dismissed. Appeal dismissed.