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2015 DIGILAW 1053 (GUJ)

State of Gujarat v. Pradipkumar Jaguji Thakor

2015-10-16

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Both these Criminal Appeals are preferred against judgment and order dated 25.4.2012 passed by learned Additional Sessions Judge, Court No. 7, Ahmedabad City, in Sessions Case No. 248 of 2011. By the said judgment, accused was convicted for offences punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and ordered to pay fine of Rs. 2,000/- and in default, he was ordered to undergo simple imprisonment for six months; for offence punishable under Section 323 of IPC, the accused was convicted an ordered to undergo rigorous imprisonment for one month and for offence punishable under Section 506 (1)of IPC, the accused was convicted and ordered to undergo rigorous imprisonment for three months. Being aggrieved by the impugned judgment, the accused has preferred Criminal Appeal No. 1786 of 2012, while Criminal Appeal No. 1066 of 2012 is preferred by the State for enhancement of sentence imposed by the impugned judgment upon the accused. 2. As both these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in these appeals, the same are taken up for hearing together. 3. The facts in brief giving rise to the filing of present appeal are as under: 3.1 The case of the prosecution is that on 22.2.2011 between 13.30 to 15 hours, the accused allegedly enticed the victim, a minor, aged four years, and took her to the terrace of Gujarat Housing Board House No. 356/1864, situated opposite the house of the accused and raped her. The victim came back to her house crying and informed about the incident. The complainant, thereupon, went to the scene of offence and scolded the accused, who was present there. The accused got enraged and beaten up the complainant and banged her head against the wall and threatened to kill her. With these allegations, the complaint was lodged before Bapunagar Police Station, Ahmedabad. 3.2 Investigation was carried out and charge sheet was submitted in the Court of learned Metropolitan Magistrate, Court No. 14. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 3.3 During the trial, the prosecution had examined following witnesses; Sr. No. Name Exh. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 3.3 During the trial, the prosecution had examined following witnesses; Sr. No. Name Exh. 1 Jayantibhai Pathuji Thakor 6 2 Nareshbhai Bhimsinh Rajput 9 3 Dr. Alpesh Zaverbhai Shah 11 4 Pinkiben Anilsinh Rajput 19 5 Rajveer Anilsinh Rajput 24 6 Dr. Manish Bachubhai Ghelani 25 7 Bipinbhai Jitendrasinh Rajuput 28 8 Ramaben Rajendrasingh Chauhan 29 9 Ravindarkumar Raghuvansh Mishra 30 10 Raysinh Roopsinh Rathva 32 3.4 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Panchnama of clothes of victim 7 2 Medical Certificate of victim 12 3 Yadi written of Police 13 4 Case paper of the victim 14 5 Medical Certificate of the accused 15 6 Yadi written to Police 16 7 Case papers of the accused 17 8 Original complaint of the complainant 20 9 Photograph 21 10 Photograph 22 11 Panchnama of seizure of samples of victim taken by the doctor 23 12 Certificate regarding injury of the accused 26 13 Yadi written to Police 27 14 Report of in charge officer 31 15 Panchnama of place of offence 33 16 Panchnama of clothes of the accused 34 17 Panchnama of seizure of samples of accused taken by the doctor 35 18 Forwarding report 36 19 Receipt of FSL 37 20 Forwarding letter of FSL 38 21 Report of FSL 39 22 Serological result of FSL 40 23 Serological report of FSL 41 3.5 At the end of trial, the Court below recorded further statement of accused under Section 313 of Cr. P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Mr. Alok Thakkar, learned advocate for the appellant, original accused, in Criminal Appeal No. 1786 of 2012 has taken us through the oral as well as documentary evidence referred above and submitted that the prosecution has miserably failed to prove its case against the appellant. He contended that the panch witnesses have not supported the case of the prosecution and it has not been proved that the clothes which are recovered are of accused. He contended that the panch witnesses have not supported the case of the prosecution and it has not been proved that the clothes which are recovered are of accused. He also submitted that apart from this, there are serious contradictions in the evidence of the complainant PW-4 and his brother PW-7 and the prosecution has failed to prove its case against the accused. He also submitted that Ramaben Chauhan, PW-8 has also not supported the case of the prosecution and the brother of the victim, PW-5 has also not stated the name of the accused in the statement before the police. He further contended that neither the medical evidence nor the pathology report supports the case of the prosecution and the accused is wrongly roped in the present offence as the accused had given a complaint against the mother of the victim i.e. the complainant regarding her illegal business of liquor. He also submitted that Medical Officer, Dr. Alpesh Zaverbhai Shah, in his cross-examination has admitted that the abrasion marks and bleeding might be possible due to self-itching by victim herself and that the injury on the private parts might be possible due to fall while playing or when something strikes against the private part. He, therefore, submitted that the accused has not committed the alleged offence and he is wrongly roped in the present case. In support of his submission, he has relied upon the definition of Hymen given in Lyon's Medical Jurisprudence & Toxicology, Eleventh Edition, 2005, which reads as under:-- "3. Hymen: The anatomy of hymen varies from individual to individual. It may be thick, rigid or elastic and varies in shape but is usually circular or crescentic in virgins. Usually the membrane is more pronounced posteriorly. Diameter of hymen varies with age. In a study carried out by Adams et al, in 1988 the mean diameter for age 1-5 years was 5.4 mm, for 6-9 years it was 9.7 mm and for age 10-12, it was 11.7 mm. During childbirth the hymen is lacerated and later represented by cicatrized nodules of varying size, called the carunculae myrtiformes. Rupture of hymen usually occurs on first penetration, but it is not inevitable. Hymen may not rupture if the membrane is thin and elastic or thick and fleshy. In cases of sexual assault on young children hymen usually does not rupture due to deeper placement. Rupture of hymen usually occurs on first penetration, but it is not inevitable. Hymen may not rupture if the membrane is thin and elastic or thick and fleshy. In cases of sexual assault on young children hymen usually does not rupture due to deeper placement. Cases are on record where the married women having regular intercourse, have intact hymen. Contrary to this, the hymen may be ruptured due to trauma, surgical procedures, foreign body insertion, chronic irritation due to lack of cleanliness and worm infestation and occasionally by the regular use of tampons.............. " 4.1 Mr. Alok Thakkar further submitted that as per the complaint, the victim stated to her mother that the accused had inserted stick in her private part while the victim has stated to the medical officer that the accused had inserted finger in her private part. Therefore, there are contradictions and inconsistencies in the depositions of the victim. He, therefore, submitted that present appeal may be allowed by setting aside the impugned judgment. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 1066 of 2012 is concerned, which is preferred for enhancement of sentence imposed on accused, she has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. She also submitted that considering the fact that the accused has committed rape on a girl aged about four years, the sentence imposed by the learned trial Court is not sufficient. She submitted that the accused had taken the victim on the terrace with an intention to commit rape. Not only that when the complainant went to scold him, he gave kick and fist blows to the complainant and administered threat to her life. She submitted that the learned trial Judge has failed to appreciate the FSL report, which clearly suggests that the accused person has committed rape on the victim. Not only that when the complainant went to scold him, he gave kick and fist blows to the complainant and administered threat to her life. She submitted that the learned trial Judge has failed to appreciate the FSL report, which clearly suggests that the accused person has committed rape on the victim. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused. She submitted that the prosecution has examined 10 witnesses in support of its case and has also produced 23 documentary evidences on the record of the case. However, without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective the learned Judge has erred in imposing lesser punishment upon the accused. She submitted that the reason put forth on behalf of the accused is not sufficient and reasonable for imposing the lesser sentence on the accused. Therefore also, as the sentence imposed by the learned Judge is not sufficient and reasonable the same deserves to be enhanced by this Hon'ble Court. She also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused deserve maximum sentence of life as provided under Section 376 of IPC as this kind of cases against minors are increasing in the society. She further submitted that the learned Judge has failed to appreciate that there is no any mitigating circumstance to impose lesser punishment and it is very clear from the facts and circumstances of the case available on the record of the case that there are aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. She also submitted that the trial Court has committed an error in not considering the evidence forthcoming on the record in right perspective and without considering the medical evidence, maximum sentence which was required to be imposed had not been imposed. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on the accused and, therefore, the sentence imposed is required to be enhanced. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on the accused and, therefore, the sentence imposed is required to be enhanced. Therefore, she submitted that Criminal Appeal No. 1066 of 2012 may be allowed and the sentence imposed by the trial Court may be enhanced. 6. We have heard Mr. Alok Thakkar, learned advocate for the accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment and evidence on record. From the evidence on record, presence of the accused is proved at the place of offence. Not only that in the history before doctor, the victim has narrated the incident and the complainant as well as brother of the victim have also supported the case of the prosecution. Moreover, the injuries caused to the victim supports the case of the prosecution and the immediate reaction of the accused at the time when the complainant went to scold her also allows this Court to draw a presumption that the accused was involved in the offence, otherwise he would have lodged a complaint against the complainant for making false allegations. Therefore, from the evidence on record, it is clear that the prosecution has remained successful in proving its case beyond reasonable doubt against the accused and the submissions advanced by Mr. Thakkar on behalf of the accused cannot be accepted. It is important to note that FSL examination report is supporting the case of the prosecution and the learned trial Judge has discussed this point in detail in paragraph No. 19 of the impugned judgment and we find ourselves in agreement with the same. Though it has been vehemently submitted that as the accused had given a complaint against the complainant-mother of the victim regarding her illegal business of liquor, the accused had been wrongly roped in the present offence. But except the oral submission, no evidence has been forthcoming on the record on the said point. The learned advocate Mr. Thakkar for the accused has admitted that they have no evidence nor anything to show that as the complaint filed by him against the mother of the victim was not recorded by the police, the accused had made any attempt to forward the said alleged complaint to the higher official of the concerned police station who had denied to lodge the complaint. Therefore, we are of the opinion that the accused is rightly convicted by the learned trial Judge of the offences alleged against him and Criminal Appeal No. 1786 of 2012 filed by the accused against his conviction is required to be dismissed. We are in agreement with the view taken by the learned Sessions Judge while convicting the accused. Though it can be said to be a very heinous offence, considering the fact that the learned trial Judge has imposed punishment of ten years rigorous imprisonment, in our opinion, the same is not required to be enhanced. Therefore, we are not increasing the sentence of punishment imposed upon the accused. Accordingly, the appeal filed by the State for enhancement of sentence imposed on accused is also required to be dismissed. 7. For the foregoing reasons, both these appeals are dismissed. The impugned judgment and order dated 25.4.2012 passed by learned Additional Sessions Judge, Court No. 7, Ahmedabad City, in Sessions Case No. 248 of 2011 is hereby confirmed. The accused shall undergo the remaining period of sentence. Record and proceedings be sent back to the concerned trial Court forthwith.