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2015 DIGILAW 1317 (GUJ)

Govindbhai Somabhai Tadvi v. State of Gujarat

2015-12-23

RAJESH H.SHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. The present Appeal is directed against the impugned judgment and order rendered in Sessions Case No. 97 of 2005 (old) and 5 of 2006 (New) by the learned Additional Sessions Judge, District Narmada at Rajpipla dated 5.4.2006 recording conviction of the Appellant/Original Accused for the offence under Section 376 of the Indian Penal Code and sentencing him as stated in detail in the impugned judgment and order. The facts of the case briefly summarised are as follows. 2. As it transpires from the material and evidence on record, on 1.7.2005, the daughter of the complainant, who was studying in a primary school, had gone to the school. However, in the evening, when she returned from the school, she complained about pain in her stomach. Initially it was not viewed seriously by the complainant mother, but in the early morning, as the undergarments of the minor daughter of the complainant was found with blood stains, and thereafter, on an inquiry, the minor daughter is said to have stated that, on previous day, when she returned to the school after the recess, the Appellant/Original Accused, who is a teacher in the school had committed an offence of rape under Section 376 of the Indian Penal Code by laying her down in the class room. Therefore, the complainant mother had taken the victim to the Doctor at Vijay Maternity Home, where she was serving and was examined by the Doctors including the Gynecologist. The victim is also said to have stated that she was threatened by the accused that if she tells anybody she would be killed. Therefore, the victim was taken to the Government hospital at Rajpipla where the Doctor had called the police. The complaint was registered by the police being I-CR No. 99 of 2005 for the offence under Section 376 IPC. 3. After the investigation was made, the charge sheet came to be filed. However, as the offence is under Section 376 it was committed to the court of Sessions. The learned Sessions Judge framed the charges and proceeded with the trial. 4. After the recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge has recorded the further statement of the accused person under Section 313 of the Criminal Procedure Code. In his further statement the accused denied the charges levelled against him. 5. The learned Sessions Judge framed the charges and proceeded with the trial. 4. After the recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge has recorded the further statement of the accused person under Section 313 of the Criminal Procedure Code. In his further statement the accused denied the charges levelled against him. 5. After hearing the learned Public Prosecutor as well as learned Advocate for the accused, the learned Sessions Judge convicted the accused for the alleged offence under Section 376 IPC and sentenced him as stated in the impugned judgment and order. 6. It is this judgment and order, which has been assailed on the grounds stated in the memo of Appeal. 7. Heard learned Advocate Shri Nirad Buch for learned Senior Counsel Shri N.D.Nanavaty for Nanavaty Advocates for the Appellant/Original Accused. 8. Learned Advocate Shri Nirad Buch referred to the testimony of PW-1 Mother at Exh. 11 and her Complaint at Exh.12. Learned Advocate Shri Nirad Buch referred to the testimony of the victim PW-2 at Exh.13 and submitted that there is a discrepancy in the version of both the complainant mother and the victim. For that purpose he tried to emphasise that the victim has stated in her cross-examination that she had complained her mother about the pain in her stomach on the next day whereas the complainant mother has stated about such complaint in the evening. Similarly, he tried to refer to the contradictions with regard to the complain as well as testimony of the complainant and the victim. Learned Advocate Shri Buch submitted that there is a delay in filing the complaint which has not been explained. He has also referred to the testimony of PW-3 Doctor Nirav at Exh.15 and the testimony of PW-4 Dr. Falguni Solanki at Exh.22 and also the testimony of Dr. Ushaben Seth PW-5 at Exh.23. Learned Advocate Shri Buch submitted that the medical evidence do not suggest any intercourse or any other injury. He therefore tried to submit that merely because there are some red marks over the vagina or the private part by itself would not be sufficient to infer about the offence. Learned Advocate Shri Nirad Buch also referred to the testimony of Sanjaybhai PW-8 at Exh.28 and the testimony of I.O. PW-15 at Exh.46. He therefore tried to submit that merely because there are some red marks over the vagina or the private part by itself would not be sufficient to infer about the offence. Learned Advocate Shri Nirad Buch also referred to the testimony of Sanjaybhai PW-8 at Exh.28 and the testimony of I.O. PW-15 at Exh.46. Learned Advocate Shri Buch submitted that there is nothing in the medical case papers or the FSL report about any violence or the injury. He therefore submitted that the absence of injury, both on the victim as well as on the accused would suggest that no such incident has occurred and he has been falsely implicated. Learned Advocate Shri Buch referred to his further statement under Section 313 of the Code of Criminal Procedure and submitted that as the Appellant/Accused had raised some voice against some appointment, he has been falsely implicated. Learned Advocate Shri Buch again emphasised about the delay in filing the FIR and tried to submit that there was a meeting with regard to the appointment and the management of the school, where the Appellant has raised objection which has led to the filing of the complaint thereafter. Learned Advocate Shri Buch submitted that the delay in filing the FIR is not explained. In support of his submission he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2015) 7 SCC 272 in case of Mohd. Ali Alias Guddu v. State of Uttar Pradesh. Learned Advocate Shri Buch also submitted that the Appellant/Original Accused has already served the sentence and this matter is pursued as he has been dismissed from service. 9. Learned APP Shri H.L.Jani for the Respondent - State of Gujarat submitted that as stated by learned Advocate Shri Nirad Buch for the Appellant/Original Accused, he has served the sentence and he has been pursuing the present Appeal to get the benefit of pension if he succeeds in the Appeal, and therefore, it would amount to giving a premium on such conduct if the version of the defence is to be believed. Learned APP Shri H.L.Jani submitted that there is no dispute about the fact that the victim is a minor girl aged about 8 years who is studying in the school and admittedly the Appellant/Original Accused is the teacher, and therefore, he is in fiduciary relation, which has been misused and abused, and on the contrary strict view should have been taken. Learned APP Shri Jani submitted that the minor victim in her testimony at Exh.13 has clearly stated as to what has transpired which has been corroborated by the medical evidence. For that purpose, learned APP Shri Jani referred to the testimony of Dr. Nirav PW-3 at Exh.15 and submitted that he has stated that when he examined the victim, hymen was torn and though the marks were found on her private part, he has explained that the intercourse may not be possible and therefore there may not be any forcible intercourse and there may not be any serious injury or bleeding. Learned APP Shri Jani submitted that, however, that does not absolve the Appellant/Original Accused from the offence. He submitted that the penetration is not necessary, and if the visiting organ has visited the organ of the victim, it would be sufficient. Learned APP Shri Jani referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2010) 2 SCC 9 in case of Wahid Khan v. State of Madhya Pradeshand submitted that penetration is not necessary. He has pointedly referred to the reference made about the Medical Jurisprudence & Toxicology (22nd Edn.) at page 495 by Modi which reads as follows: "Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." 10. Therefore, learned APP Shri H.L.Jani submitted that this aspect has been considered time and again. He submitted that the red marks which have been found on the genital part of the victim is sufficient as stated in the medical evidence. For that he referred to the medical certificate at Exh.18. Learned APP Shri H.L. Jani emphasised that the patient herself is the informant. Learned APP Shri Jani also referred to the testimony of Dr. Falguni Solanki PW- 4 at Exh.22 and submitted that on her clinical examination, she thought it fit to refer to the Gynecologist as the hymen was ruptured. He also referred to the testimony of Dr. Ushaben Seth PW-5 at Exh.23 and submitted that she has stated that there were red marks found on the genital part of the victim and there was swelling also, for which she had given the antibiotic. Learned APP Shri H.L.Jani submitted that as she was treated as an outdoor patient, the case papers were not prepared and therefore there is no discrepancy in the evidence of the prosecution or the prosecutrix which is corroborated by the testimony of the complainant mother as well as the medical evidence in the form of testimony of the doctor who examined the victim. Learned APP Shri H.L.Jani also submitted that the submission that there are no marks of injury either on the victim or the Appellant/Original Accused is also misconceived. He submitted that it is not necessary or sine qua non that there has to be an injury. Learned APP Shri H.L.Jani also submitted that the submission that there are no marks of injury either on the victim or the Appellant/Original Accused is also misconceived. He submitted that it is not necessary or sine qua non that there has to be an injury. In support of his submission, learned APP Shri H.L.Jani referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2010) 5 SCC 445 in case of Santhosh Moolya and anr. v. State of Karnatakaand (2014) 10 SCC 327 in case of Mukesh v. State of Chhattisgarh. Learned APP Shri H.L.Jani submitted that absence of injury would not be a ground to record acquittal and what is relevant is the substantive evidence of the victim or the prosecutrix. 11. Learned APP Shri Jani also submitted that the submission with regard to the false implication referring to the objection raised by the Appellant/Original Accused as stated in his statement under Section 313 of Cr.PC is not believable. Learned APP Shri Jani submitted that in fact it is merely a defence sought to be raised. Learned APP Shri Jani pointedly referred to the judgment of the court below and submitted that this aspect has been considered in paragraph 32 where he has stated that he raised objection as the political conspiracy was made to implicate him. He submitted that the Appellant Accused had no discretion and therefore there is no reason to implicate him. Further, on his own say in his defence, reference is made to some settlement with regard to the another case between the accused and one Chimanbhai and the witness Shri Bharat Vasava has clearly declined that he is not aware about any such case. He submitted that he himself in his defence has referred to different theories and therefore the impugned judgment and order recording conviction may not be disturbed considering the nature of offence and particularly the fact that the victim girl who is aged about 8 years was raped by the Appellant Accused who is in fiduciary relation as a teacher. Learned APP Shri Jani therefore submitted that the present Appeal may not be entertained. He further submitted that as the Appellant/Original Accused has not served the sentence and was not even granted bail, there is no justification to entertain the present Appeal now. 12. Learned APP Shri Jani therefore submitted that the present Appeal may not be entertained. He further submitted that as the Appellant/Original Accused has not served the sentence and was not even granted bail, there is no justification to entertain the present Appeal now. 12. In rejoinder, learned Advocate Shri Nirad Buch for the Appellant Accused however made a feeble attempt to support his submission with regard to the discrepancies as well as the delay in filing the FIR. 13. In view of this rival submissions, it is required to be considered whether the present Appeal deserve consideration and whether the impugned judgment and order recording conviction calls for any interference. 14. As it transpires from the appreciation of material and evidence, the complainant mother in her testimony at Exh.11 and her complaint at Exh.12 has clearly stated as to what has transpired and there is no inconsistency which is sought to be raised in her version about the incident. Similarly, the testimony of minor victim PW-2 at Exh.13 fully corroborates the manner in which the incident is said to have occurred. The submissions which have been made referring to the medical evidence that there are no marks of injury either on the victim or the Appellant/Original Accused, is thoroughly misconceived. The Hon'ble Apex Court has clearly observed in judicial pronouncements including the observations made in a judgment reported in (2010) 5 SCC 445 in case of Santhosh Moolya and anr. v. State of Karnataka that such injury is not sine qua non. Further, the same aspect has been considered by the Hon'ble Apex Court in another judgment reported in (2014) 10 SCC 327 in case of Mukesh v. State of Chhattisgarh. In fact, as stated in the judgment referred to by learned APP Shri H.L. Jani reported in (2010) 2 SCC 9 in case of Wahid Khan v. State of Madhya Pradesh, this aspect has also been considered with reference to the medical jurisprudence which has been quoted herein above. Therefore, the medical person can give the opinion of examination, and what is transpired or the victim was subjected to such offence, could be better considered on her own testimony. Therefore, it is a matter of appreciation of evidence and material and to consider whether the offence of rape is established or not by the courts. In the facts of the case, PW-2 victim in her testimony at Exh. Therefore, it is a matter of appreciation of evidence and material and to consider whether the offence of rape is established or not by the courts. In the facts of the case, PW-2 victim in her testimony at Exh. 13 has stated in a most natural way about the incident. It is well settled that if the testimony of the victim is trust worthy and reliable, it does not require any corroboration. It is also well settled that it is not that the corroboration is essential in every case and it is looked for as a matter of prudence. In the facts of the case, the version of the victim PW-2 at Exh. 13 is fully corroborated by the medical evidence in the form of testimony of Dr. Seth PW-5 at Exh. 23 who had examined her and has stated in her testimony at Exh. 23 that she found red marks over the genital parts for which she had prescribed the medicines and antibiotic. Therefore, the injury is not sine qua non. Further, it is not necessary that injury has to be substantive or there has to be full penetration for the purpose of establishing the offence of rape as provided in Section 375. Therefore, the submissions made by learned Advocate Shri Nirad Buch for the Appellant/Original Accused are devoid of merits on the aspect of absence of injury or penetration and cannot be accepted. 15. Further, much emphasis given on the aspect of delay in filing the complaint is also without any substance. In the facts of the case, there is a delay of two days in filing the complaint which cannot be said to be an inordinate delay particularly when the victim is a child who is required to be carefully handled, and on the next day in the morning she could convey to her mother as to what has transpired. It is in such situation delay would not be fatal. The Hon'ble Apex Court time and again has made the observations referring to the situation in the Indian society and some kind of hesitation for registering a complaint in such cases. It is in such situation delay would not be fatal. The Hon'ble Apex Court time and again has made the observations referring to the situation in the Indian society and some kind of hesitation for registering a complaint in such cases. The Hon'ble Apex Court in a judgment reported in (2010) 2 SCC 9 in case of Wahid Khan v. State of Madhya Pradesh referring to the earlier judgment has observed: “It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life...................................................Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity.” It is therefore the relevant criteria that if the testimony of the victim is reliable and trust worthy, the conviction could be recorded. 16. Further, in a judgment of the Hon'ble Apex Court reported in (1996) 2 SCC 384 in case of State of Punjab v. Gurmit Singh it has been observed: “....The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged” 17. This would make the position clear and is an answer to the submission made by learned Advocate Shri Nirad Buch about the delay in filing the complaint. 18. One more aspect which has been emphasised with regard to the false implication on the ground that as the Appellant/Original Accused has raised the objection in his school for some appointment due to conspiracy and he has been falsely implicated, is required to be considered. Though this submission has been made referring to the statement under Section 313 Cr.PC, the scrutiny of the evidence would make it clear that it is devoid of any merits and it is only raised as a defence. Though this submission has been made referring to the statement under Section 313 Cr.PC, the scrutiny of the evidence would make it clear that it is devoid of any merits and it is only raised as a defence. The Appellant/Original Accused has no say in the appointment and therefore his say about raising objection would not have any relevance. Further, this aspect has been considered in the judgment of the court below and as emphasised by learned APP Shri H.L.Jani, he has stated about the reason for false implication on another ground referring to another case. This itself suggests that the Appellant/Original Accused is not consistent in his version and he has given different versions for the purpose of his defence, which cannot be accepted at the face value. Moreover the submission about the false implication and conspiracy cannot be accepted at the face value as there is hardly anything by which it could be shown that the victim and his family have anything to do with the management and the affairs of the school. It is required to be mentioned that if at all he had raised any objection with regard to the school management, there is nothing on record to suggest any link for any such objection. Therefore, considering the background of the facts discussed herein above and also keeping in mind the approach of the court in such cases particularly the observations made by the Hon'ble Apex Court in a judgment reported in (1996) 2 SCC 384 in case of State of Punjab v. Gurmit Singh (supra), which emphasise about the sensitivity and approach of the court in such matters, deserve a careful consideration and no leniency could be shown. 19. The Hon'ble Apex Court in a judgment reported in (1996) 2 SCC 384 in case of State of Punjab v. Gurmit Singh has observed: “A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.” 20. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.” 20. It is required to be mentioned that the Appellant/Original Accused had served the sentence and therefore his purpose of pursuing this Appeal seems to be that if he can get the acquittal, he could get pension, which would otherwise amount to a premium to such persons who are convicted and therefore the ground that he has served the sentence would not make any difference. 21. The present Appeal therefore does not call for any interference as this court is in complete agreement with the reasons recorded and the findings given by the court below. The impugned judgment and order recording conviction of the Appellant/Original Accused for offence under Section 376 is hereby confirmed. The present Appeal stands dismissed. Appeal dismissed.