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2015 DIGILAW 504 (GUJ)

Hamidkhan Vahidkhan Pathan v. State of Gujarat

2015-04-29

K.J.THAKER

body2015
JUDGMENT Kaushal Jayendra Thaker, J. 1. This is an appeal by the original accused-appellant, herein, challenging the judgment and order of the learned 2nd Additional Sessions Judge, Dahod (for short, 'the Trial Court'), Dated: 12.02.2014, whereby, the trial Court convicted and sentenced the original accused as under; (1) For the offence punishable under Section 452 of the IPC, to undergo rigorous imprisonment for two years and to pay fine of Rs. 10,000/- and in default to undergo further simple imprisonment for three months; (2) For the offence punishable under Section 376 of the IPC, to undergo rigorous imprisonment for seven years and to pay fine of Rs. 30,000/- and in default to undergo further simple imprisonment for one year; (3) For the offence punishable under Section 506(2) of the IPC, to undergo rigorous imprisonment for two years and to pay fine of Rs. 10,000/- and in default to undergo further simple imprisonment for three months; and (4) For the offence punishable under Section 452 of the IPC, to undergo rigorous imprisonment for two years and to pay fine of Rs. 10,000/- and in default to undergo further simple imprisonment for three months. 2. The brief facts of the case of the prosecution, as set out before the trial Court, are that the prosecutrix lodged a complaint before the Dahod Town Police Station, wherein, she stated that she along with her parents is residing in a rented house at Dahod. It is stated in the complaint that about 15 days prior to the alleged incident, the prosecutrix had gone to tailoring shop and at that time, the accused met her and told her that he lover her and that he would come to his house. However, the complainant did not inform anybody about the same out of fear. It is stated in the complaint that on 27.01.2010, while the mother of the complainant had gone to MP to attend a marriage and the prosecutrix was alone at home along with her younger sister and brothers, the accused came to her house and took her into adjoining room and threatened her to let him have sexual intercourse or he would kill her, and then, the accused had sexual intercourse with the prosecutrix against her will. Then, on 28.01.2010, the accused again entered into the house of the prosecutrix and had sexual intercourse with her against her will. Then, on 28.01.2010, the accused again entered into the house of the prosecutrix and had sexual intercourse with her against her will. On return of her mother from MP, the prosecutrix informed her about the alleged incident and lodged the complaint with the police. On registration of the complaint, police carried out investigation into the alleged offence and on finding sufficient evidence filed a charge-sheet against the accused. At the time of trial, since, the accused did not plead guilty, the trial was conducted. 3. At the time of trial, in order to establish the guilt of the accused, the prosecution examined the following witnesses; PROSECUTION WITNESS NUMBER NAME OF THE WITNESS EXHIBIT NO. 1 Dr. Kamleshkumar Jagatprasad Keshri 9 2 Majarbhai Hatimbhai Kundavala 14 3 Asadbhai Samirbhai Kazi 15 4 Salman Yusufkhan Pathan 19 5 Kaid Fakruddin Nalawala 20 6 Yunus Fakruddin Bhabhrawala 21 7 The prosecutrix 32 8 Burhanuddin Juzar Abdulhussain Burhanpurwala 35 9 Sirinben Juzar Abdulhussain 36 10 Juzar Abdulhussain Burhanpurwala 38 11 Dr. Ashok Devidas Bachani 40 12 Chandubhai Titabhai Damor 46 13 Shaileshkumar Jayantilal Mori 50 14 Khatubhai Muljibhai Solanki 48 4. Over and above the oral evidences, the prosecution also produced the following documentary evidences in support of its case; SR. NO. PARTICULARS OF THE DOCUMENTS EXHIBIT NO. 1 MLC Certificate of the prosecutrix 13 2 Panchnama of seizure of clothes of the accused 16 3 Panchnama of place of offence 4 Panchnama of search of house of the accused 28 5 Complaint 33 6 Birth certificate of the prosecutrix 39 7 MLC certificate of the accused 44 8 FSL report of the house of the prosecutrix 52 5. At the end of the trial, the further statement of the accused under Section 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the impugned judgment and order, as referred to herein above. Hence, the present appeal. 6. Mr. Tirmizi, learned Advocate for the original accused-present appellant, submitted that the trial Court committed a grave error in passing the impugned judgment and order of conviction, inasmuch as it failed to appreciate that the prosecutrix was not a minor. It is, further, stated that from the evidence of the prosecutrix, herself, it clearly transpires that there was no force or coercion on the part of the accused and the prosecutrix was a consenting party. It is, further, stated that from the evidence of the prosecutrix, herself, it clearly transpires that there was no force or coercion on the part of the accused and the prosecutrix was a consenting party. He, further, stated that the trial Court ought to have appreciated the fact that the panch witnesses did not support the case of the prosecution. Therefore, it is prayed that the present appeal be allowed. 7. On the other hand, learned APP supported the order of the trial Court and submitted that the trial Court passed the order of conviction, after perusing the entire material on record, and hence, no interference is called for at the hands of this Court. 8. In order to appreciate as to whether the trial Court was justified in convicting the accused appellant for the charges levelled against him, it would be relevant to refer to the evidence of the prosecutrix, who was examined as P.W. - 7. P.W. - 7, in her deposition (Exhibit-32), stated that when she used to go to the shop of the accused, who was doing the tailoring work, the accused used to tell her that he loves her and that he would come to her house. Then, the prosecutrix has narrated the incident which took place on 27.11.2010 stating that on that day her mother had gone to Manwar (M.P.) attend a marriage, whereas, his father, who was working as driver in Mumbai, was away on his job and the prosecutrix was alone at her house along with her younger brothers and sister at night and while they were watching television, the accused entered into the her house and went into the next room, which is adjoining to the main room and called the prosecutrix, therein. When the prosecutrix went into the said room, it is alleged that the accused threatened her of defaming her in the society and had sexual intercourse with her twice, and then, he went away. Then, it alleged that on 28.11.2010 also, the accused again entered into the house of the prosecutrix taking the advantage of absence of her parents and again had sexual intercourse with her. The prosecutrix, then, stated that on 29.11.2010, when her mother returned from Manwar, she informed her about the incident and the complaint came to be lodged. Then, it alleged that on 28.11.2010 also, the accused again entered into the house of the prosecutrix taking the advantage of absence of her parents and again had sexual intercourse with her. The prosecutrix, then, stated that on 29.11.2010, when her mother returned from Manwar, she informed her about the incident and the complaint came to be lodged. Now, in that regard, if, the cross-examination of the prosecutrix is seen, then, she stated that they are residing in a rented house, which is situated on the ground floor and which consists of two rooms and second room can be entered into by going through the first room. The prosecutrix stated that at the time of the alleged offence she did not try to shout or to raise any alarm. She, further, stated that she even did not inform her brothers and sister about the alleged incident, but then, she clarified that they were knowing about the incident. In an answer to a question as to whether she had tried to save herself, the prosecutrix stated that the accused had applied force on her and due to that she had sustained injury on her left thigh. She, further, stated that she did not inform her mother about the first or the second incident over phone. Here, it is pertinent to note that the date of birth of the prosecutrix is 03.09.1994, i.e. at the time of alleged offence she was nearly 17 years of age. Further, the prosecutrix is stated to have studied upto 8th Standard, and therefore, she is expected to possess reasonable understanding. Thus, had the accused had sexual intercourse with her against her will on 27.11.2010, the natural reaction from her would have been to inform her mother about the same, but, she did not do the same. Further, she also does not inform her mother about the incident of 28.11.2010. From the evidence of the prosecutrix, herself, it is clear that they are residing in an area, which is well populated. The prosecutrix also conceded, in her cross-examination, that people used to ingress and outgress in her locality even at night. Meaning thereby, there was all the opportunity with the prosecutrix to raise an alarm and ask for help from her neighbours or the passersby, but, she did not do anything of the kind. The prosecutrix also conceded, in her cross-examination, that people used to ingress and outgress in her locality even at night. Meaning thereby, there was all the opportunity with the prosecutrix to raise an alarm and ask for help from her neighbours or the passersby, but, she did not do anything of the kind. Not only that, her brothers and sisters who were sitting in the front room, while the accused and the prosecutrix were in the second room, which was locked up from inside, also did not raise any alarm or shout for help, which also raises doubt about the case of the prosecution. Since, it cannot be believed that the accused would threaten the prosecutrix and would have sexual intercourse with her against her will and the younger sister and brother would sit in the outer room, without any hue and cry for about two-three hours. 9. In the context of the evidence of P.W. - 7, now, if we examine the evidence of P.W. - 1, i.e. the doctor, who had attended the prosecutrix and who was present at the time of physical examination of the prosecutrix, in his evidence (Exhibit-9), stated that at the time of examination they had seen only two abrasions on the right-hand wrist of the prosecutrix and besides that they had seen no external injury on the body of the prosecutrix, whereas, as per the prosecutrix while she tried to resist the accused, she had sustained injury on her left thigh, which does not get support from the medical evidence. This witness, then, stated that as per his opinion an attempt was made to have sexual intercourse and rape was done. This piece of evidence of P.W. - 1, i.e. "as per his opinion an attempt was made to have sexual intercourse...", raises doubt, as to whether the accused really had sexual intercourse with the prosecutrix. Since, had the P.W. - 1 been sure about the having of sexual intercourse by the accused with the prosecutrix, then, he would not have stated that 'an attempt was made to have sexual intercourse. Further, P.W. - 1, in his cross-examination, stated that within 12-24 hours of the sexual intercourse, the sperms can be found in vagina. Since, had the P.W. - 1 been sure about the having of sexual intercourse by the accused with the prosecutrix, then, he would not have stated that 'an attempt was made to have sexual intercourse. Further, P.W. - 1, in his cross-examination, stated that within 12-24 hours of the sexual intercourse, the sperms can be found in vagina. However, he admitted that during the physical examination of the prosecutrix, no sperms were found from her vagina, though, her physical examination was carried out on 29.11.2010, i.e. within 24 hours from the last alleged incident of sexual intercourse. The evidence of the doctor-P.W. - 11 (Exhibit-40), who had carried out physical examination of the accused, also belies the prosecution case, as P.W. - 11 did not find any external injury on the body of the accused. Instead, this witness stated that the accused had given him the history of having sexual intercourse with the prosecutrix with her consent. P.W. - 11, in his cross-examination, conceded that if rape is committed on a female, then, injuries could be caused on the vagina and the penis. In the case on hand, as stated above, no injuries were found either on the body or private parts of the accused or the prosecutrix, and thus, in the opinion of this Court the trial Court committed a grave error in holding the accused guilty for the charges leveled against him. 10. Further, as per the report of FSL, the human blood of blood group 'A' was found on the Pajamas and nicker of the prosecutrix, which are muddamal articles Nos. 1, 2 and 4. Now, muddamal article No. 7-blood, which was the blood sample of the prosecutrix, was found to be of blood group 'A', which is that of the prosecutrix, whereas, the blood group of the blood-muddamal article No. 11, which was the blood sample of the accused, was found to be of group AB. In other words, during serological analysis also nothing could be found, which would support the case of the prosecution. 11. In above view of the matter, here, it would be relevant to refer to a recent unreported decision of the Apex Court in the case of "MD. ALI @ GUDDU VS. STATE OF U.P.", rendered in Criminal Appeal No. 2238 of 2010 and allied matters, Dated: 10.03.2015. 11. In above view of the matter, here, it would be relevant to refer to a recent unreported decision of the Apex Court in the case of "MD. ALI @ GUDDU VS. STATE OF U.P.", rendered in Criminal Appeal No. 2238 of 2010 and allied matters, Dated: 10.03.2015. In that case the original accused-appellant, therein, was held guilty for the offence punishable under Section 366, 368 and 376 of the IPC along with other three accused. Being aggrieved with the order of the trial Court, the appellant, therein, approached the High Court, which confirmed the order of the trial Court. Hence, the accused-appellant, therein, moved the Apex Court and while allowing the appeal of the accused-appellant, the Apex Court observed as under in Paragraph-21 of the said judgment; "21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had traveled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without reappreciating the material on record, by giving the stamp of approval to the same." 12. In above view of the matter, when it has come on record that the prosecutrix, who was about 17 years of age, did not raise any alarm for help or did not try to resist the accused, though, there were ample opportunities to do so, in the opinion of this Court, the conviction of accused cannot be sustained and the trial Court committed a grave error in passing the impugned judgment and order and same requires to be quashed and set aside. 13. Since, the evidence of the prosecutrix, herself, coupled with the medical evidence of P.W. - 1 and P.W. - 11 as well as the documentary evidence in the form of FSL report are sufficient enough to decide the present matter, this Court does not deem it necessary to discuss the evidence of the other witnesses. 14. In the result, this appeal is ALLOWED. The judgment and order of the trial Court, Dated: 12.02.2014, convicting the accused for the offence punishable under Sections 376, 506(2) and 452 of the Indian Penal Code, is quashed and set aside and accused is ACQUITTED. The accused is reported to be in jail, and hence, he is ordered to be released FORTHWITH, if, not required in connection with any other case. The amount of fine, if any paid, be refunded to him. The accused is reported to be in jail, and hence, he is ordered to be released FORTHWITH, if, not required in connection with any other case. The amount of fine, if any paid, be refunded to him. R & P be sent back to the concerned Court, forthwith. Appeal Allowed.