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2015 DIGILAW 81 (GUJ)

Mukeshbai Laxmanbhai Machhi v. State of Gujarat

2015-01-21

K.J.THAKER

body2015
JUDGMENT : K.J. Thaker, J. This is an appeal by the original accused-appellant, herein, seeking to assail the order of the learned Additional Sessions Judge, Bharuch, Dated : 07.04.1994, whereby, the accused was convicted and sentenced as under; (1) For the offence under Section 366 of the IPC, to undergo simple imprisonment for three years and to pay fine of Rs.250/- and in default to undergo further simple imprisonment for one month; (2) For the offence under Section 376 of the IPC, to undergo simple imprisonment for four years and to pay fine of Rs.250/- and in default to undergo further simple imprisonment for one month; (3) For the offence under Section 3(1) (xi) read with Section 3(2)(5) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act (for short, 'the Atrocities Act'), 1989, to undergo simple imprisonment for four years and to pay fine of Rs.250/- and in default to undergo further simple imprisonment for one month. 2. The brief facts of the case of the prosecution, as set out before the trial Court, are that a complaint came to be lodged by the prosecutrix before the police on 07.02.1990, wherein, she stated that her father has expired and she along with her mother, three sisters and one brother resides at Jadeshwar, Koli Faliya and she does household work along with her mother. It is, further, stated in the complaint that on the date of the alleged offence, i.e. on 05.02.1990 while the prosecutrix was going to grocery shop to make some purchases, at that time, the accused-appellant, herein, came there in an autorickshaw, bearing registration No. GRV 928, and forcefully made the prosecutrix get in the same. It is stated in the complaint that, though, the prosecutrix requested the accused to let her go, the accused did not allow her to do so and instead took her to Vadodara, at the house of his uncle. It is, then, stated in the complaint that at night, at his uncle's house, the accused had sexual intercourse with her and despite the fact that the prosecutrix was shouting for help nobody came to help her. Then the accused along with the prosecutrix left his uncle's place at about 04:00 a.m. and when they reached near Palej, there again he had sexual intercourse with the prosecutrix. Later on, when the accused took halt to have gutkha, the prosecutrix escaped. Then the accused along with the prosecutrix left his uncle's place at about 04:00 a.m. and when they reached near Palej, there again he had sexual intercourse with the prosecutrix. Later on, when the accused took halt to have gutkha, the prosecutrix escaped. Later on, she filed the complaint in question. On registration of the offence, police carried out the investigation and on finding sufficient evidence filed a charge-sheet against the accused. At the time of trial, the accused did not plead guilty and claimed to be tried, and therefore, the case was committed before the competent Court for trial. 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 The prosecutrix 5 2 Dr. Vinaychand Lallubhai Patel 7 3 Laxminben Arjunbhai 10 4 Ibrahimbhai Maqboolshah Diwan 11 5 Uttamrao Auchit Mahajan 12 6 Kali @ Vidhyaben Ramsinh 14 7 Dr. Hemantkumar Ratilal Kaniya 15 8 Urmilaben Desaibhai 19 9 Pratapbhai Sindhabhai 21 10 Salim Jalauddin Tirmizi 26 11 Dhansukhlal Ratilal Chaudhary 34 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 The complaint of the prosecutrix 6 2 Medical case papers of the accused 8 3 Panchnama of place of offence 13 4 Medical certificate of the prosecutrix 17 5 Certificate of sending sample of the prosecutrix to the police station 18 6 Extract of the school register of the prosecutrix 20 7 Panchnama of seizure of the clothes put on by the prosecutrix at the time of offence 22 8 Arrest panchnama of the accused 23 9 Panchnama of seizure of the clothes put on by the accused at the time of offence 24 10 Muddamal despatch note 27 11 Receipt of acknowledgment of FSL 28 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 judgment and order, as referred to herein above. Hence, the present appeal. 6. Though served, none appears on behalf of the original accused-appellant, herein. 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 judgment and order, as referred to herein above. Hence, the present appeal. 6. Though served, none appears on behalf of the original accused-appellant, herein. However, it is stated in the memo of the appeal 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 voluntarily accompanied the accused. The trial Court ought to have appreciated the fact that the panch witnesses did not support the case of the prosecution. The trial Court failed to appreciate that there is no material to show that the prosecutrix was subjected to physical exploitation. It is also stated that accused, himself, is coming from a backward community, and therefore, the trial Court ought not to have convicted him for the offence under the schedule Castes and Schedule Tribes (Prevention of Atrocities Act). Thereby, it is prayed in the memo 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. Heard learned APP for the Respondent- State and perused the material on record with her assistance. 9. Since, it is the case of the prosecution that on the date of the alleged incident, the accused forcefully took away the prosecutrix and then subjected her to physical exploitation at different places, here, it would be relevant first to advert to the evidence of the prosecutrix, who was examined as P.W.-1. P.W.-1, in her examination-in-chief (Exhibit-5), stated that on the date of the alleged offence, while she was going to grocery shop, the accused was standing there with an autorickshaw and while she was passing by the autorickshaw, the accused forcefully made her to get in and took her to Vadodara, at the house of his uncle. P.W.-1, in her examination-in-chief (Exhibit-5), stated that on the date of the alleged offence, while she was going to grocery shop, the accused was standing there with an autorickshaw and while she was passing by the autorickshaw, the accused forcefully made her to get in and took her to Vadodara, at the house of his uncle. The prosecutrix, further, stated that at Baroda, during night, the accused had sexual intercourse with her. Then, next day, while the accused and the prosecutrix were coming back to Bharuch, the accused again had sexual intercourse with her near Palej. Then, the prosecutrix narrated as to how she managed to escape and lodged the complaint. The prosecutrix also identified the clothes put on by her, at the time of offence, before the Court as well as the accused. 10. In her cross-examination by the learned Advocate for the accused, the prosecutrix stated that at the time of offence, there were other persons present on the spot, however, I did not raise any alarm for help. Then, she stated that the accused was sitting beside her and he had closed her mouth, whereas, the friend of the accused was driving the autorickshaw. The prosecutrix, further, stated that when they reached at the house of uncle of the accused, she did not raise any alarm for help. She, further, stated in her cross-examination that while the accused was having sexual intercourse, she did shout for help. The prosecutrix also admitted that on the next day, when they reached Palej at about 11:00 a.m., despite the fact that there was traffic and the vehicles were going to and from, she did not cry for help. The prosecutrix also stated that at Palej, the accused had not closed her mouth. 11. P.W.-2 is the Medical Officer, who had carried out the medical examination of the accused. P.W.-2 in his deposition(Exhibit-7) stated that on 08.02.1990, the accused was brought before him for medical examination and on examining him, P.W.-2 did not found any signs of injury on his body or genital. In his cross- examination, P.W.-2 admitted that the accused had disclosed before him that he twice had sexual intercourse with the prosecutrix with her consent. 12. P.W.-2 in his deposition(Exhibit-7) stated that on 08.02.1990, the accused was brought before him for medical examination and on examining him, P.W.-2 did not found any signs of injury on his body or genital. In his cross- examination, P.W.-2 admitted that the accused had disclosed before him that he twice had sexual intercourse with the prosecutrix with her consent. 12. P.W.-3, who was residing in the same vicinity as that of the prosecutrix, in her deposition (Exhibit-10) stated that on the date of the alleged offence, he saw the accused made the prosecutrix sit in the autorickshaw and then he sped away. In her cross-examination, this witness stated that she know the accused, as he used to come at the house of the prosecutrix. This witness, further, stated that the prosecutrix had told him that the name of the accused was Mukesh. 13. P.W.-6 is the mother of the prosecutrix. The evidence of this witness of are not of much importance, since, she herself has not witnessed the incident and that she came to know about the same through P.W.-3, who informed her that the accused has taken away the prosecutrix. 14. P.W.-7 is the Medical Officer, who had carried out the medical examination of the prosecutrix. P.W.-7, in his deposition (Exhibit- 7), stated that during the external medical examination of the prosecutrix, he found as under; (1) The prosecutrix was having secondary sexual characters; (2) There were no signs of external injuries or signs of sand on her clothes and that there was an injury mark on her wrist, which was about 15 days old; (3) There was no sign of either blood or semen found on her clothes; (4) There was no injury mark on her vagina; 15. According to P.W.-7, having carried out medical examination of the prosecutrix, the prosecutrix was aged about 15 years and there was no sign, which would suggest that the prosecutrix had sexual intercourse in the recent past. In his cross-examination, P.W.-7 stated that the age of the prosecutrix could 17 or 18 years. He further stated that when the prosecutrix was brought before him, she did not complaint of any pain in her vagina. 16. P.W.-8 is the Head Master of the school, where the prosecutrix was admitted in Standard-1. P.W.-8 in his deposition (Exhibit-19), after verifying the school register, stated that date of birth of the prosecutrix is 01.06.1974. He further stated that when the prosecutrix was brought before him, she did not complaint of any pain in her vagina. 16. P.W.-8 is the Head Master of the school, where the prosecutrix was admitted in Standard-1. P.W.-8 in his deposition (Exhibit-19), after verifying the school register, stated that date of birth of the prosecutrix is 01.06.1974. However, in his cross-examination, P.W.-8 stated that in a case, where the parents do not know the exact date of birth of their child, they register same as 1st of June. P.W.-8, then, stated that he cannot say with certainty that date of birth of the prosecutrix is 01.06.1974. 17. P.W.-9 is one of the panchas to the panchnama of seizure of clothes of the prosecutrix. P.W.-9, in his deposition (Exhibit- 21), stated that the prosecutrix had produced one maroon colour petticoat, one yellow colour underwear and one old gown before the police. P.W.-9, then, identified his signature in the panchnama. In his cross-examination, P.W.-9 denied that he had signed a ready-made panchnama. 18. P.W.-10 is the I.O., who had carried out the investigation into the alleged offence. P.W.- 10, in his deposition (Exhibit-26), narrated as to how after taking over the investigation, he recorded the statement of the prosecutrix, seized the clothes put on by her, seizure of autorickshaw used in committing the offence etc.. In his cross-examination, P.W.-10 denied that, since, the mother of the prosecutrix is a bootlegger, he helped her lodge a false case. So far as the evidence of P.W. Nos. 4 and 5 are concerned, they did not support the case of the prosecution and were declared hostile. 19. Having gone through the oral evidence of the witnesses examined by the prosecution, it cannot be said that the prosecution has successfully established its case beyond reasonable doubt. The prosecutrix in her evidence has clearly stated that when the accused made her sit in the autorickshaw forcefully, she did not raise any alarm. Further, when they reached Vadodara at the house of the uncle of the accused, there also she did not make any complaint against the accused that he made her to accompany him against her will. Not only that, in her cross-examination, she admitted that while the accused was having sexual intercourse with her, at his uncle's house, she did not shout for help. Not only that, in her cross-examination, she admitted that while the accused was having sexual intercourse with her, at his uncle's house, she did not shout for help. She, further, stated that, on the next day, when she along with the accused reached Palej, though, there was ample opportunity to raise alarm and shout for help, she did nothing of the kind and instead, as per her own statement, there the accused again had sexual intercourse with her. 20. Now, if, the evidence of the prosecutrix are examined in the light of the evidence of P.W.-7, who had carried out medical examination of the prosecutrix, then, it transpires that there were no signs of injury on the body of the prosecutrix as well as on her private part. Further, P.W.-7 in no unclear terms stated that there was no sign, which would suggest that the prosecutrix had sexual intercourse in the recent past. P.W.-7 also stated that when the prosecutrix was brought before him, she did not complaint about any pain in her vagina. Thus, the story narrated by the prosecutrix with regard to sexual intercourse by the accused against her will, stands falsified by the medical evidence. Even, the evidence of P.W.-3, who had examined the accused and had found no injury marks either on the body or genital of the accused, also raises doubt about the story put forward by the prosecution. 21. So far as the aspect of age of the prosecutrix is concerned, the prosecution examined the Head Master of the School, where the prosecutrix was first admitted, as P.W.-8, who gave date of birth of the prosecutrix as 01.06.1974. However, in his cross-examination, this witness admitted that he cannot say with certainty that date of birth of the prosecutrix is 01.06.1974. The evidence of P.W.-7 is also not very clear on the aspect, since, this witness stated that the age of the prosecutrix could be 17 or 18. Thus, the exact age of the prosecutrix remains shrouded in mystery. However, in his cross-examination, this witness admitted that he cannot say with certainty that date of birth of the prosecutrix is 01.06.1974. The evidence of P.W.-7 is also not very clear on the aspect, since, this witness stated that the age of the prosecutrix could be 17 or 18. Thus, the exact age of the prosecutrix remains shrouded in mystery. Under the circumstances, when the exact age of the prosecutrix is not coming on record and when prosecutrix, herself, did not make any attempt to get herself freed from the grip of the accused and instead remains silent, even when the accused was having sexual intercourse with her, as stated by the prosecutrix in her cross-examination, and more particularly, when the story of her physical exploitation by the accused is not getting support from the medical evidence, the trial Court ought to have given the benefit of doubt to the accused. This Court is, therefore, of the opinion that the trial Court committed a grave error in convicting the accused under Section 366 and 376 of the Indian Penal Code. 22. Insofar as the conviction of the accused under Section 3(1)(xi) read with Section 3(2)(5) of the Atrocities Act, is concerned, here, it would be relevant to refer to the aforesaid sections. Section 3(1)(xi) of the Atrocities Act reads as under; "3. Punishments for offences of atrocities.-(1)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- (xi) assaults or uses force to any woman belonging to a Schedule Caste or a Schedule Tribe with intent to dishonour or outrage her modesty;" Section 3(2)(v) of the act reads as under; "3(2)(v). commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Schedule Caste or a Schedule Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine; 23. Thus, from the reading of the aforesaid sections it becomes clear that a person, who is not a member of either a Schedule Caste or a Schedule Tribe commits an offence, as stated in the aforesaid sections, he can be punished with imprisonment for life and with fine. In the instant case, the accused himself belongs to 'Macchi' community, which is considered to be a backward community. In the instant case, the accused himself belongs to 'Macchi' community, which is considered to be a backward community. Under the circumstances, it cannot be said that he has committed the offences under the aforesaid sections. Even otherwise, it is not the case of the prosecution that the prosecutrix was targeted by the accused because of her caste. Further, when there is no material on record to held the accused guilty for the principal offence, he cannot be held guilty for the offence under the Atrocities Act. 24. In the result, for the reasons recorded herein above, present appeal preferred by the original accused is ALLOWED. The order of the trial Court, Dated : 07.04.1994, is quashed and set aside and the accused is ACQUITTED of the offence punishable under Section 366 and 376 of the Indian Penal Code as well as Section 3(1)(xi) read with Section 3(2)(v) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act. The bail bonds of the accused stands discharged and the amount of fine, if any, paid by him, be refunded to him. R&P be send back to the concerned trial Court, forthwith. Appeal Dismissed.