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2011 DIGILAW 251 (GUJ)

Bhavanbhai Bhayabhai Panelia v. State of Gujarat

2011-03-25

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : R.M. Chhaya, J. The present Appeal arises out of judgment and order passed by learned Sessions Judge, 3rd Fast Track Court, Amreli, dated 25.4.2005 in Sessions Case No. 105 of 2004 convicting the appellant-accused for the offences punishable under section 376(f) of the Indian Penal Code (IPC) sentencing him for life imprisonment and fine of Rs.10,000/- (Rupees Ten thousand only) and in default to undergo further rigorous imprisonment for three months. 1.1 By that very judgment, the learned Addl. Sessions Judge has been pleased to acquit the appellant accused from the charge of offence punishable under section 506(2) of IPC. 2. It is the case of the prosecution that on 19.1.2004 between 13.00 hrs. to 13.30 hrs. the appellant accused who is resident of village Jasvantgadh, Taluka and District Amreli, took prosecutorix Simaben, aged about 11 years, near Khojawadi plot and against her wish and without consent committed rape. It is also the case of the prosecution that after committing the offence of rape the appellant accused threatened prosecutorix that he would kill if she would disclose the fact of the rape to anyone. 2.1. It is further the case of the prosecution that after the said incident, the prosecutorix Simaben returned and on the said day after supper informed about the incident to her mother Pushpaben-PW2 at night. It is the case of the prosecution that father of the prosecutorix had gone out to the Bazar and on his return, Pushpaben(PW1) informed about the said incident. It is the case of the prosecution that as it was night, the prosecutorix was taken to Chital Government Hospital by her parents on the next day. However, as the Medical Officer was not available she was taken to Amreli Government Hospital. FIR was lodged before the Amreli Police Station by Pushpaben Kalubhai,PW1. On such FIR being lodged, the investigating agency recorded statements of various witnesses including first informant and the prosecutorix, collected medical evidence. Chargesheet was filed in the Court of Judicial Magistrate, First Class, Amreli, who in turn committed the case to the Court of Sessions, Amreli, as the offence under section 376(f) was exclusively triable by the Sessions Court and it came to be registered as Sessions Case No. 105 of 2004. 3. Chargesheet was filed in the Court of Judicial Magistrate, First Class, Amreli, who in turn committed the case to the Court of Sessions, Amreli, as the offence under section 376(f) was exclusively triable by the Sessions Court and it came to be registered as Sessions Case No. 105 of 2004. 3. The charge was framed at Exh.3 by the learned Sessions Judge for the offence punishable under section 376(f) of the Act as well as section 506(2) of the IPC. The charge was read and explained to the appellant-accused to which he pleaded not guilty and came to be tried. 4. The Sessions Court proceeded with the trial and after considering the evidence led by the prosecution came to the conclusion that the prosecution has successfully established the charge of rape against the appellant-accused and, specifically believed the case of the prosecution based on oral testimony of prosecutorix as well as other prosecution witnesses. The Trial Court, however, reached the conclusion that the prosecution has not been able to prove the charge under section 506(2) of the IPC and acquitted the appellant-accused. Being aggrieved by the aforesaid judgment and order recording conviction and sentence to the appellant-accused under section 376(f) of the Act, the present appeal is filed. 5. Heard Mr. P.M.Lakhani for the appellant-accused and Mr. D.C. Sejpal, learned APP. for the State. 6. Mr. Lakhani has taken us through the oral testimony of PW1-Pushpaben Kalubhai, PW2-Samaben Kalubhai, the prosecutorix, as well as PW5-Dr. Arshibhai Sidibhai Vadher, the Medical Officer of Amreli Government Hospital, who had examined the prosecutorix. Mr. Lakhani has stated that on the basis of the evidence on record, the prosecution has not been able to prove the offence of rape. Mr. Lakhani submitted that as per the medical evidence and oral testimony of PW5 the Medical Officer, rape was not complete. Mr. Lakhani submitted that the prosecutorix being a minor her testimony is not reliable as the same is not corroborated by medical evidence on record. Mr. Lakhani further stated that other prosecution witnesses have turned hostile. As an alternative submission, Mr. Lakhani further stated that from the medical papers on record, it transpires that there was no rape committed by the appellant-accused and if the evidence led by the prosecution is taken as it is, it is not a complete rape but only an attempt to commit rape. Mr. As an alternative submission, Mr. Lakhani further stated that from the medical papers on record, it transpires that there was no rape committed by the appellant-accused and if the evidence led by the prosecution is taken as it is, it is not a complete rape but only an attempt to commit rape. Mr. Lakhani stated that the learned Sessions Judge has wrongly awarded compensation of Rs.1 lac to the prosecutorix Samaben. He also submitted that the same is excessive and in view of the provisions of section 357 of the Code of Cr.P.C. the same should be adjusted with the amount of fine imposed upon the appellant-accused. Mr. Lakhani, therefore, submitted that taking into consideration this alternative submission, this Court may reduce the sentence from life imprisonment to rigorous imprisonment of seven years and adjust the amount of compensation awarded with that of fine imposed upon the appellant. Mr. Lakhani submitted that the learned Sessions Judge has erred in convicting the appellant-accused and the appeal deserves to be allowed by setting aside the order of conviction and sentence. 7. Mr. D.C. Sejpal, learned APP. has opposed this appeal. Mr. Sejpal has submitted that the prosecutorix has clearly stated in her oral testimony that even though she was declared hostile, has in her cross-examination supported the case of the prosecution. Mr. Sejpal submitted that in the testimony of prosecutorix, it has clearly come on record that the appellant-accused had clearly committed the offence. Mr. Sejapl further submitted that there is no contradiction between ocular evidence and medical evidence and even the Serological report. Mr. Sejpal further submitted that fine and compensation are different and distinct and, therefore, the learned Sessions Judge has rightly imposed fine and has rightly awarded compensation to the prosecutorix. Mr. Sejpal further submitted that the prosecution has been able to prove the guilt its hilt and submitted that the learned Sessions Judge has correctly appreciated the evidence on record and has rightly convicted the appellant-accused. Mr. Sejpal therefore, submitted that the appeal is devoid of any merits and the same deserves to be dismissed. 8. We have examined the Record & Proceedings in context of the rival submissions. 9. Upon reading the evidence of (PW2) Samaben Kalubhai, the prosecutorix, we find that she is aged 11 years. We also find that it was Sunday when the incident occurred. 8. We have examined the Record & Proceedings in context of the rival submissions. 9. Upon reading the evidence of (PW2) Samaben Kalubhai, the prosecutorix, we find that she is aged 11 years. We also find that it was Sunday when the incident occurred. She had gone to the adjoining farm with her sister Bhumika. We also find that she has stated that an unidentified person harassed her. We find that she has been declared hostile. However, in her cross-examination by the prosecution we find that she had clearly mentioned the name of present appellant-accused and has narrated the incident. Similarly we find in the cross-examination of the defence also where she has clearly stated that it was the appellant-accused who had misbehaved. We also find in her cross-examination that she had clearly denied the suggestion of the defence that it was not the appellant-accused who had misbehaved. We also find that she has clearly stated that on the date of the incident the appellant accused and the prosecutorix were together. 10. Upon reading the evidence of PW1 the mother of the prosecutorix, we find that she has clearly stated the occurrence of crime as stated by prosecutorix. In cross-examination also, though we find that she has stated that they have compromised with the appellant-accused, however, the same would not nullify the other corroborative evidence on record. 11. Reading the evidence of PW3 - father of the deceased Kalubhai though declared hostile has stated the fact of rape having been committed upon the prosecutorix. 12. Upon reading the evidence of (PW5) Dr. Arshibhai Vadher, Medical Officer, it is noticed that vaginal area of the prosecutorix was radish and on touching the same she had pain over it. We also find that he had opined that complain of such pain would be present in case when girl aged 11 years is raped. 13. Upon reading the evidence of PW4 - Maganbhai Khodabhai, Investigating Officer, we find that he has stated the fact of recording the FIR as per information given by first informant. In cross-examination, we find that he has denied the suggestion of the defence that the complaint was written without asking the first informant. 14. Sum total of the above discussion would be that the prosecution has been able to prove the guilt of the appellant-accused. The prosecutorix is 11 years old and is illiterate and poor. In cross-examination, we find that he has denied the suggestion of the defence that the complaint was written without asking the first informant. 14. Sum total of the above discussion would be that the prosecution has been able to prove the guilt of the appellant-accused. The prosecutorix is 11 years old and is illiterate and poor. In her oral testimony, she has clearly narrated the incident and her testimony is corroborated with other evidence on record. The victim and her mother were subjected to cross-examination and nothing was brought out to doubt their veracity. The evidence of victim is found to be cogent, convincing and trustworthy and the same is fully corroborated by the evidence of her mother PW1 and the medical evidence and her testimony is reliable. Even in her cross-examination, she has not only identified the appellant-accused but has stated occurrence of crime. From the medical evidence it clearly transpires that prosecutorix being a tender age of 11 years the secondary sex character had not developed. The doctor had clearly opined that her vaginal area was red and the prosecutorix had pain over it. The medical evidence, also reveals that hymen was broken and, therefore, whether it was partial penetration or attempted penetration the same would be sufficient to constitute offence under section 376. Therefore, the alternative submission made on behalf of the appellant-accused that it was only an attempt to commit rape and not a complete rape cannot be considered and the learned Sessions Judge has therefore rightly recorded the conviction of the appellant accused. 15. The contention raised by the appellant-accused that the compensation awarded in addition to fine imposed upon the appellant-accused is wrongly awarded and that as per section 357 of the Cr.P.C. the Court can impose either fine or compensation is, in our view, devoid of any merits. The fine and compensation are different and distinct and the power of the Court to grant compensation under section 357(3) of the Code of Cr.P.C. is not ancillary to other sentences but it is in addition thereto as has been held in case of K.A. Abbas H.S.A. v. Sabu Joseph And Another, (2010) 6 SCC 230 , where it is observed: ".....It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. It may be noted that this power of the courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all the courts to exercise this power liberally so as to meet the ends of justice in a better way". 16. Cumulatively, therefore, we hold that the prosecution has been able to prove the guilt of the accused and the Sessions Court has rightly convicted and sentenced the appellant-accused for the offence punishable under section 376(f) of IPC and therefore no interference with the impugned judgment and order is warranted. 17. On overall assessment of the evidence on re-appreciation we find that the Trial Court was justified in convicting the Appellant-Accused for the offence of rape of the minor aged 11 years punishable under section 376(f) of the IPC. We do not find any merits in the Appeal. The Appeal, therefore, deserves to be dismissed and is dismissed. The judgment and order of the learned Additional Sessions Judge, 3rd Fast Track Court, Amreli in Sessions Case No. 105 of 2004 is hereby confirmed. Appeal dismissed.