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2013 DIGILAW 654 (GUJ)

Thakor Sureshji Dahyaji v. State of Gujarat

2013-11-11

K.J.THAKER, K.S.JHAVERI

body2013
Judgment K.S. Jhaveri, J.—This appeal is directed against the judgment and order dated 05.03.2010 passed by the learned Addl. Sessions Judge and Presiding Officer, Fast Track Court No. 3, Mehsana, Camp – Visnagar in Sessions Case No. 80/2009 whereby, the appellant, original accused, has been convicted for the offences punishable under Section 363, 366 and 376 of Indian Penal Code (for short, “the IPC”) and has been sentenced to life imprisonment and fine of Rs. 10000/- and in default, rigorous imprisonment for a further period of six months. The accused was also ordered to pay compensation of Rs. 25000/- to the survivor under Section 357(3) of Cr.P.C. 2. The facts in brief are as under; Vishnubhai Karamsinhbhai Rabari, the complainant herein, is a resident of “Rabarivaas” situated in Panjarapole area of Unjha, District Mehsana. The complainant has four brothers and amongst them, Laljibhai Madhabhai, resides along with his family in his vicinity. Naynaben, one of the daughters of Laljibhai Madhabhai, who was married to one Rameshbhai Kamsibhai, had come to her parental house at Unjha along with her daughter, aged around four (04) years, for few days. 2.1 On 02.06.2009 at around 1730 hrs. the daughter of Naynaben was playing in the veranda of the house. However, at around 1800 hrs., she went missing. Therefore, Naynaben, the complainant and other family members carried out necessary search. However, all the efforts went in vain. At around 2100 hrs., they came to know that the appellant herein, who was a resident of the same locality, was seen taking the survivor to a nearby place. They carried out search of the appellant. However, he was not traceable. A telephonic complaint was given to the police. On search being made, the appellant was traced out and on inquiry, it was known that the appellant had abducted the survivor from her home and thereafter, had committed the offence of rape on her. Immediately, the police went to the scene of offence and thereafter, took the survivor to Unjha Cottage Hospital for necessary treatment. 2.2 A complaint in connection with the above incident was lodged before Unjha Police Station vide I-C.R. No. 91/2009. Necessary investigation was carried out and statements of witnesses were recorded. At the end of investigation, chargesheet was filed against the accused before the concerned magisterial Court. 2.2 A complaint in connection with the above incident was lodged before Unjha Police Station vide I-C.R. No. 91/2009. Necessary investigation was carried out and statements of witnesses were recorded. At the end of investigation, chargesheet was filed against the accused before the concerned magisterial Court. Being a sessions triable offence, the case was committed to the Sessions Court for adjudication on merits. 2.3 During the trial, the prosecution has examined nine witnesses; Prose. Name of Witness Exhibit No. Witness No. 1 Dr. Dipakkumar Vitthalbhai Parmar 7 2 Pravinkumar Popatlal Soni 10 3 Nileshbhai Arvindbhai Brahmbhatt 18 4 Vishnumbhai Karamsi Rabari 20 5 Maheshbhai Harjibhai Rabari 22 6 Rabari Rameshbhai Lalji 23 7 Chandreshbhai Joitram Patel 24 8 Dineshbhai Naranbhai 31 9 Tribhuvanbhai Karsandas Patel 34 2.4 The prosecution has also placed reliance upon documentary evidence being the complaint at Exh. 21, Report prepared by P.I., Unjha at Exh.- 35, panchnama regarding physical condition of survivor at Exh. 25, panchnama regarding physical condition of accused at Exh. 27, panchnama of scene of offence at Exh. 36, panchnama regarding seizure of clothes of survivor at Exh. 32, medical certificate of survivor at Exh. 8, Medical Certificate of accused at Exh. 9, Medical certificates of survivor issued by M.O., Mehsana Civil Hospital at Exh. 11 & 13, purshis regarding dropping of witnesses at Exh. 42 and closing purshis at Exh. 43. 2.5 At the end of trial, the Court below recorded further statement of accused under Section 313 Cr.P.C. and ultimately, passed the impugned judgment and order, which has led to the filing of present appeal. 3. Mr. H.V. Darji learned counsel for the appellant submitted that the entire case is based upon circumstantial evidence and that prosecution has failed to establish the chain of circumstances pointing to the guilt of appellant. He submitted that the prosecution has not led any cogent evidence to prove the overt act of appellant. In the alternative, he submitted that a sympathetic view may be taken since the appellant was of a very young age at the time when the offence in question was committed. 4. Mr. HS Soni learned APP supported the impugned judgment and submitted that the evidence on record clearly establish the guilt of appellant. He submitted that in the past also, the appellant had committed a similar offence, for which he was charge-sheeted. 4. Mr. HS Soni learned APP supported the impugned judgment and submitted that the evidence on record clearly establish the guilt of appellant. He submitted that in the past also, the appellant had committed a similar offence, for which he was charge-sheeted. He, therefore, submitted that being a habitual offender against women, the Court may take a serious view in the matter and may not disturb the punishment imposed by the Court below. He, therefore, prayed to dismiss the present appeal. 5. We have heard learned counsel for both sides and have perused the oral as well as documentary evidence on record. We have also gone through the impugned judgment and order rendered by the Court below. 6. The prosecution has placed heavy reliance upon the testimony of Maheshbhai Harjibhai Rabari (PW-5) to bring home the charge against the appellant. From his testimony, it is established that the survivor was last seen with the appellant at around 1730 hrs. This witness has categorically deposed that the appellant was seen purchasing a cold-drink for the survivor from a shop situated in the locality and thereafter, proceeding towards the Unjha – Dasaj road with the survivor. This witness is not a relative of the survivor or her family and there is nothing on record to show that he has any enmity with the appellant either. 6.1 Both the appellant and this witness reside in the same locality and therefore, there is no question of mis-identification as well. This witness was employed in private sector and being a holiday, he was present at the place when the alleged offence came to be committed. Thus, the presence of this witness was natural, particularly, when the survivor went missing in the company of the appellant in the early evening hours. 6.2 Considering the overall facts of the case, we do not find any reasons to disbelieve the evidence of this witness. He is an independent witness and the survivor was lastly seen in the company of the appellant. This witness had informed the family of survivor that the survivor was lastly seen in the company of appellant. Later, when the appellant was apprehended by the police and on making necessary inquiry, the survivor was found in the bruised condition at the place mentioned by the appellant. This witness had informed the family of survivor that the survivor was lastly seen in the company of appellant. Later, when the appellant was apprehended by the police and on making necessary inquiry, the survivor was found in the bruised condition at the place mentioned by the appellant. 6.3 Thus, the testimony of this witness (PW-5) throws ample light on the prosecution case and it has come out that the survivor was lastly seen in the company of appellant. 7. The prosecution case also gets support from the testimony of Dr. D.V. Parmar (PW-1) who is the Medical Officer who had examined the appellant. He has categorically deposed that the appellant was found to have forcefully entered into sexual intercourse. 8. The Serological Report (Exh.41) also supports the prosecution case. The blood group of the appellant was ‘B’ and traces of blood belonging to group ‘B’ was found on the clothes belonging to the survivor. Traces of human semen were also found on the clothes belonging to the survivor, which is established from the FSL Report (Exh.40). The control mud seized from the scene of offence and one recovered from the private parts of survivor were similar and it contained traces of blood. 9. The medical evidence on record also supports the case of prosecution. Dr. Dipakkumar Vitthalbhai Parmar (PW-1) is the Medical Officer who had examined the survivor while she was brought before him for medical examination on 02.06.2009. In his deposition, the Doctor has categorically stated that the injuries found on the body of survivor were possible when someone forcibly enters into sexual intercourse. He has deposed that human blood stains were found on the body as also on the clothes worn by the survivor at the relevant point of time, which gets support from the panchnama regarding seizure of clothes worn by survivor at the time of incident (Exh. 32). He has categorically opined that the survivor could have sustained the injuries found on her body had she been raped at a place where thorns would be lying. This opinion of the Doctor (PW-1) gets support from the evidence in the form of panchnama of scene of offence (Exhibit-36). The Doctor has issued Medical Certificate (Exh. 8) in respect of the survivor pursuant to her medical examination, which supports his testimony. This opinion of the Doctor (PW-1) gets support from the evidence in the form of panchnama of scene of offence (Exhibit-36). The Doctor has issued Medical Certificate (Exh. 8) in respect of the survivor pursuant to her medical examination, which supports his testimony. 9.1 The same Medical Officer (PW-1) had examined the appellant while he was brought before him for medical examination on 03.06.2009. He has categorically opined that the injuries found on the genitals of appellant were possible on attempting to forcibly enter into sexual intercourse and that traces of blood were flowing out of the genitals. As discussed herein above, the Serological Report (Exh. 41) supports the prosecution case inasmuch as blood belonging to the appellant was found on the clothes of survivor, seized vide panchnama (Exh. 32). Thus, the medical evidence on record completely supports the prosecution case and it establishes beyond doubt the involvement of the appellant in the crime. 10. Another important factor which is against the appellant is that the scene of offence was shown by the appellant himself immediately after he was apprehended by the police. The complaint came to be filed on the very same day. Considering the totality of facts and circumstances, the factum of the appellant himself pointing out the scene of offence is an incriminating evidence against the appellant. 11. The prosecution has also brought on record another important evidence which goes against the appellant. Vide Exh.46, the charge-sheet filed against the appellant for offences under Sections 354, 323, 504 and 506(1), IPC by Mehasana Taluka Police Station was placed on record. From the said charge-sheet, it appears that the appellant was alleged to have committed a similar offence against a child aged about four years on 05.01.2003. Thus, the appellant was alleged to have committed a similar serious offence in the past also. The charge-sheet (Exh. 46) speaks volumes about the character of the appellant. 12. Considering the totality of facts, we are of the opinion that the prosecution has been successful in bringing home the charge against the appellant. The case is based upon circumstantial evidence and the prosecution has been successful in proving the chain of circumstances pointing towards the guilt of appellant. The survivor was lastly seen in the company of appellant, which the prosecution has established from the testimony of PW-5. The case is based upon circumstantial evidence and the prosecution has been successful in proving the chain of circumstances pointing towards the guilt of appellant. The survivor was lastly seen in the company of appellant, which the prosecution has established from the testimony of PW-5. In our considered opinion, the Court below has appreciated the evidence on record in its proper perspective and was justified in convicting the appellant for the offence in question and no lenient view deserves to be taken in the matter. 13. In the facts and circumstances of the case, it would be relevant to refer a decision of the Apex Court in Bishnu Deo Mishra vs. State of Assam, (2011) 14 SCC 705 . In that case, it was held that apart from being a crime against society, rape is an offence against human dignity. It is a transgression which is destructive of the whole personality of the victim. The commission of rape by the accused upon a tender-aged and helpless victim of his daughters age is also a crime against the religious faith. Therefore, there is no question of being lenient in passing sentence against the accused. In light of the above observations and the in view of the facts of this case, we do not deem it appropriate to take a lenient view and accordingly, confirm the conviction and sentence imposed by the Court below. 14. For the foregoing reasons, the appeal is dismissed. Records and proceedings, if lying with this Court, be sent to the Court below forthwith.