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2016 DIGILAW 101 (GUJ)

State of Gujarat v. Hemudan Nanbha Gadhvi

2016-01-13

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge (Fast Tract Court No. 5), Bhavnagar passed in Sessions Case No. 68 of 2004, by which, the learned trial Court has acquitted the accused for the offence punishable under Section 376 of the Indian Penal Code, the State has preferred present Criminal Appeal. 2. The prosecution case in nutshell are as under:- 2.1 That one Ambaben mother of the prosecutrix lodged a complaint with the Vartej police Station on 20.02.2004 which was registered as FIR being CR-I-55 of 2004 alleging the inter alia that she resides with her husband and children at village Khadsaliya. That her husband Mohanbhai was doing agricultural work. That she had three son and two daughters, out of which two daughters, one elder daughter got married and the younger daughter Gavu was aged 9 years. That she had three buffalo and said Gavu used to take three Buffalo to the field for grassing. It was alleged that on 20.02.2004 at about 9.30 a.m. Gavuben and one Jasiben daughter of Maganbhai went towards pond for the purpose of grassing the cattle. That thereafter at about 3 p.m. Jasiben rushed to the home and told that when they were returning from the pond near Sosariya place one unknown person had caught hold of Gavu and that she shouting and thereafter the complainant and her son Bhubhat went to the place and wife of her son went to call hear husband. It was further alleged that when she asked Gavuben about what happened, she told that while she was returning with Jasiben at that time one unknown person who had put on white pant and shirt, was slim and tall and told her in Gujarati language to give him some water to drink and at that time Gavuben offered water from the plastic bottle and at that time he caught hold of Gavuben and took her to Sosariya Gala and committed the rape on her and thereafter he run away by giving push to Gavuben. It was alleged that there was a bleeding on the private part of the Gavuben and her cloths were also having bloodstain. It was alleged that there was a bleeding on the private part of the Gavuben and her cloths were also having bloodstain. That thereafter, they went to Vadi and on gathered all family members took Gavuben in Bhavnagar hospital and at that time the original complainant lodged the complaint which was recorded by the Police Sub Inspector Shri Kalsariya which was sent to Vartej Police Station with Vardhi and the same was recorded in the police station diary as CR-I-26 of 2004 by one Jesingbhai Mavjibhai Boriya in charge PSO of Vartej Police Station. That the said FIR/complaint was investigated by one B.P. Kalsariya, PSI, Vartej Police Station who as such recorded the complaint given by the original complainant. During the course of investigation, he recorded the statement of concerned witness. He also prepared the panchnama of place of incident. He sent prosecutrix/victim for medical check up. He also collected the medical evidence. He also collected the cloths of the victim as well as accused who was arrested in the meantime and sent it to the FSL. He also sent the yadi to the Executive Magistrate for conducting TI Parade. He also sent the accused for medical check up. After having prima facie case against the accused, the Investigating Officer filed the charge sheet against the accused in the Court of learned JMFC for the offence under Section 376 of the Indian Penal Code. As the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Bhavnagar committed the case to the Sessions Court, Bhavnagar which was sent to the Court of the learned Additional Sessions Judge, Fast Track Court No. 5, Bhavnagar for trial, which was registered as Sessions Case No. 68 of 2004. The accused pleaded not guilty and therefore, he came to be tried by the learned Sessions Court for the offence under Section 376 of the Indian Penal Code. The learned Sessions Court framed the charge against the accused at Exh. 6 and thereafter as he denied having committed any offence and pleaded not guilty, he came to be tried for the aforesaid offence. 2.2 To prove the case against the accused, the prosecution examined following 12 witnesses:- PW No. Name of the Witness Exhibit No. 1. Ambaben W/o Mohanbhai 14 2. Gavuben D/o Mohanbhai 16 3. Jasiben Maganbhai 20 4. Pratapsing Dansing 21 5. Ramesh Vashrambhai 24 6. 2.2 To prove the case against the accused, the prosecution examined following 12 witnesses:- PW No. Name of the Witness Exhibit No. 1. Ambaben W/o Mohanbhai 14 2. Gavuben D/o Mohanbhai 16 3. Jasiben Maganbhai 20 4. Pratapsing Dansing 21 5. Ramesh Vashrambhai 24 6. Ashok Ramjibhai 25 7. Gordhanbhai Nagijibhai 27 8. Kalubhai Alibhai 28 9. Dr. Meghna Narendrabhai Mehta 30 10. Jasingbhai Mavjibhai Boriya 32 11. Dilipkumar Kantilal Rathod 36 12. Bachubhai Patabhai Kalsariya 39 2.3 Through the aforesaid witnesses, the prosecution also brought on record the following documentary evidence:- S. No. Name of the Witness Exhibit No. 1. Complaint 15 2. Panchnama of place of Incident 19 3. Panchnama of Gavuben 22 4. Panchnama of cloths of victim 23 5. Panchnama of collection of sample of victim 26 6. Arrest Panchnama 29 7. Medical Certificate of Gavuben Mohanbhai 31 8. Xerox copy of station diary 33 9. Yadi of offence lodged by PSO 34 10. Report of offence 35 11. Yadi sent for TI Parade to Executive Magistrate 36 12. Panchnama of TI Parade 38 13. Yadi for Medical check up of victim 40 14. Collection of sample of victim by Medical Officer 41 15. Yadi of accused for Medical Treatment 42 16. Collection of sample of the accused by Medical Officer 43 17. Yadi Mudamal FSL 44 18. Receipt of Mudamal FSL 45 19. Report of Mudamal 46 20. Yadi for sketch 47 21. Dropping purshis of prosecution witnesses by the APP 49 22. Closing purshis of prosecution witness by APP 50 2.4 At this stage, it is required to be noted that at the time when the charge sheet was filed, Investigating Officer received the report from the FSL with respect to cloths of the victim as well as accused having bloodstain and having semen stain. However, the detailed serological report was awaited which was received during the trial and as such by production purshis at Exh. 17, the detailed Serological report received from the FSL was placed on record and the learned Judge passed an order recorded. However, through oversight and for whatever reasons the same was not given exhibit number. Thereafter, closing purshis was given by the prosecution at Exh. 17, the detailed Serological report received from the FSL was placed on record and the learned Judge passed an order recorded. However, through oversight and for whatever reasons the same was not given exhibit number. Thereafter, closing purshis was given by the prosecution at Exh. 50, further statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded, in which he denied having committed any offence and it was stated that because of the political rivalry, he has been falsely implicated in the case. 2.5 That during the trial for whatever reasons and it appears that there might be some settlement between the accused and the complainant, the original complainant - Ambaben who was examined as PW No. 1 at Exh. 14, victim - Gavuben who was examined as PW No. 2 at Exh. 16 and Jasiben who was examined as PW No. 3 at Exh. 22 turned hostile and did not support the case of the prosecution and despite the fact that Gavuben identified the accused in the TI parade conducted by the Executive Magistrate and despite the medical evidence having injuries on the private part of the victim and despite the medical evidence, all the aforesaid witnesses stated that they do not know/identified the accused and they had specifically denied having committed any rape on Gavuben. It was deposed that one unknown person asked water for drinking from Gavuben and Gavuben gave the water from the plastic bottle and at that time the said unknown person gave pushed to Gavu and because of that blood came out on the hand and except that nothing was done with the Gavuben and thereafter the said unknown persons run away and Gavuben came home. That despite the medical evidence suggesting having rape committed on victim and despite the police evidence, more particularly, deposition of PW No. 10 Jesing Mavjibhai Boriya; deposition of PSI Bachubhai Kalsariya and the deposition of Executive Magistrate Dilip Rathod before whom in TI parade Gavuben and Jasiben identified the accused and solely relying upon the deposition of hostile witness and ignoring the deposition of other independent witnesses, by impugned judgment and order the learned trial Court has acquitted the original accused for the offence under Section 376 of the Indian Penal Code. Hence, the State has preferred present Criminal Appeal challenging the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused for the offence under Section 376 of the Indian Penal Code. 3. Shri Mitesh Amin, learned Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the original accused for the serious offence under Section 376 of the Indian Penal Code. 3.1 It is vehemently submitted by Shri Mitesh Amin the learned Public Prosecutor appearing on behalf of the State that learned trial Court has materially erred in acquitting the original accused for the serious offence under Section 376 of the Indian Penal Code. 3.2 It is vehemently submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that while acquitting the original accused the learned trial Court has ignored the evidence of the independent witness and has materially erred in considering the deposition/evidence of the hostile witness. 3.3 It is further submitted by Shri Amin learned Public Prosecutor appearing on behalf of the State that in the present case though the mother of the prosecutrix/victim, the victim herself and Jasiben an eyewitnesses turned hostile may be because of the settlement between the accused and the original complainant side, the prosecution has been successful in proving the case against the accused by leading the cogent evidence and by examining the independent witness. 3.4 It is vehemently submitted by Shri Amin, learned Public Prosecutor appearing on behalf of the State that in the present case the medical evidence and the deposition of Dr. Mehgna Narendrabhai Mehta - PW No. 9 who has examined at Exh. 30 fully supports the case of the prosecution that there was a rape on the victim. It is submitted that in the deposition of Dr. Meghna Narendrabhai Mehta-who examined the victim specifically stated that there was a bleeding on the private part of the body of the victim; that serious injuries on the private part of the body which were afresh. It is submitted that the injuries were mentioned in certificate produced at Exh. 31. It is submitted that hymen was found to be ruptured. It is submitted that therefore, from the medical evidence the prosecution has been successful in proving that there was rape committed on victim. It is submitted that the injuries were mentioned in certificate produced at Exh. 31. It is submitted that hymen was found to be ruptured. It is submitted that therefore, from the medical evidence the prosecution has been successful in proving that there was rape committed on victim. It is submitted that the though the original complainant has turned hostile, the prosecution has been successful in proving the complaint which was given by the original complainant (Exh. 15) by examining the police witness - PSI Kalsariya who recorded the complaint given by Ambaben which was sent to Jesingbhai Boriya PSO of Vartej Police station for recording the complaint along with vardhy and which was in fact recorded as FIR. It is submitted that in the complaint the original complainant specifically alleged that there was rape committed on the victim. 3.5 It is submitted by Shri Amin learned Public Prosecutor for the State that even Gavuben and Jasiben identified the accused before the Executive Magistrate at the time of conducting TI Parade and same has been proved by examining Executive Magistrate - Dilip Rathod as PW No. 11 at Exh. 36 and also by examining the panchas of panchnama of TI Parade. 3.6 It is submitted by Shri Amin learned Public Prosecutor for the State that the learned trial Court has disbelieved the identification of the accused in TI parade by Gavuben and Jasiben on the ground that said witnesses do not support the case of the prosecution, ignoring the deposition of the independent witnesses and Executive Magistrate. It is submitted that even the learned trial Court has ignored the Serological report sent by the FSL and the FSL report with respect to semen stain and bloodstain found on the cloths of the victim as well as accused and has ignored the fact that semen and bloodstain found on the cloths of the victim were that of the accused i.e. same group of the accused. It is submitted that the detailed semen report was produced on record along with the production purshis at Exh. 17 and the same was in fact on record, the learned trial Court has materially erred in ignoring the same. It is submitted that if the same would have been considered by the learned trial Court, the learned trial Court would not have even acquitted the accused. 17 and the same was in fact on record, the learned trial Court has materially erred in ignoring the same. It is submitted that if the same would have been considered by the learned trial Court, the learned trial Court would not have even acquitted the accused. 3.7 It is submitted that therefore, the findings recorded by the learned trial Court are perverse and/or contrary to the evidence on record and/or ignoring the relevant material/ evidence on record and thereby the learned trial Court has committed grave error in acquitting the original accused which has resulted in miscarriage of justice. It is submitted that as such the learned trial Court has failed to perform his duty as a Judicial Officer and though the Prosecution Witness Nos. 1, 2 and 3 and mother of the prosecutrix/victim and Jasiben were declared hostile because of the settlement, the learned trial Court has hurriedly disposed of the trial and has acquitted the original accused, which has resulted in miscarriage of justice. It is submitted that as such learned trial Court ought to have been more vigilant and sensitive when the offence alleged was a heinous crime of rape on girl aged about 9 years only and more particularly when for whatever reasons and may be because of the settlement, the mother of the prosecutrix/ original complainant, the victim and Jasiben turned hostile and did not support the case of the prosecution. Making above submissions, Shri Amin, learned Public Prosecutor has requested to allow the present appeal and quash and set aside the impugned judgment and order of acquittal and convicted the original accused for the offence punishable under Section 376 of the Indian Penal Code and has requested to impose the maximum punishment provided under Section 376 of the Indian Penal Code. 4. Present appeal is opposed by Shri L.R. Pathan, learned advocate for the original accused. Shri Pathan, learned advocate for the original accused has vehemently submitted that present appeal is against the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused for the offence under Section 376 of the Indian Penal Code. 4. Present appeal is opposed by Shri L.R. Pathan, learned advocate for the original accused. Shri Pathan, learned advocate for the original accused has vehemently submitted that present appeal is against the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused for the offence under Section 376 of the Indian Penal Code. It is submitted that as such the findings recorded by the learned trial Court while acquitting original accused are on appreciation of evidence and same cannot be said to be perverse and therefore, the impugned judgment and order passed by the learned trial Court acquitting original accused is not required to be interfered with by this Court in exercise of appellate jurisdiction. In support of his above submissions, he has relied upon the following decisions:- (1) In the case of Raj Singh vs. State of Haryana, (2015) 6 SCC 268 . (2). In the case of Golbar Hussain & Others vs. State of Assam and Another, (2015) AIR SCW 3248. 4.1 It is further submitted by Shri Pathan, learned advocate for the original accused that in the present case even neither the complainant - Ambaben in the complaint nor even the victim while giving history before the Doctor disclosed the name of the accused. It is submitted that both of that stated that one unknown persons caught hold of the victim and committed the rape on her. 4.2 It is submitted that in the present case as material witness i.e. PW Nos. 1, 2 and 3 mother of the prosecutrix, prosecutrix herself and Jasiben had not supported the case of the prosecution and as such they were declared hostile and in absence of any other corroborative evidence the learned trial Court has rightly acquitted the original accused. 4.3 It is further submitted that even the learned trial Court has rightly disbelieved the identification of the accused by the victim and Jasiben in TI parade as the original complainant - mother of the prosecutrix who was alleged to have present at the time of TI Parade, the victim Gavuben and even Jasiben denied in their deposition having identifying the accused in the TI Parade conducted by the Executive Magistrate. 4.4 Now, so far as semen report sent by the FSL is concerned, Shri Pathan, learned advocate for the original accused has vehemently submitted that same was not on record and/or same was not exhibited, the same cannot be considered by this Court. It is submitted that if semen report by the FSL is not considered, in that case, the prosecution has failed to prove by leading cogent evidence that the semen found on the cloth of the victim and even on the pant of the accused were that of the accused. 4.5 It is submitted that therefore, when the prosecution has failed to establish and/or proved the identity of the accused and thereby learned trial Court has acquitted the original accused, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. Making above submissions and relying upon the above decisions, it is requested to dismiss the present appeal. 5. Heard the learned advocates for the respective parties at length. We have gone through the impugned judgment and order of acquittal passed by the learned trial Court, more particularly, reasoning given by the learned trial Court while acquitting the original accused. We have re-appreciated the entire evidence on record. At the outset, it is required to be noted that in the complaint given by one Ambaben mother of the victim which was recorded by the PSI Bachubhai Kalsariya produced at Exh. 15 she has categorically stated that there was a rape committed on the victim Gavuben. However, for whatever reasons and may be because of the settlement between the accused and the complainant side thereafter she had turned hostile and has not supported the case of the prosecution and even denied what was stated by her in the complaint. However, the factum of rape committed on the victim - Gavuben has been established and proved by the prosecution by other cogent evidences such as by examining Dr. Meghna Narendrabhai Mehta (PW No. 9) who when the victim was brought to the hospital, examined the victim and also from her medical certificate produced at Exh. 31. In the deposition Dr. However, the factum of rape committed on the victim - Gavuben has been established and proved by the prosecution by other cogent evidences such as by examining Dr. Meghna Narendrabhai Mehta (PW No. 9) who when the victim was brought to the hospital, examined the victim and also from her medical certificate produced at Exh. 31. In the deposition Dr. Maghna Mehta had specifically stated that on examining victim there was bleeding found from the private part on the body of the victim and that her hymen was found to be ruptured and that there were injuries found on the private part of the body of the victim and said injuries were fresh. Thus, it has been established and proved beyond doubt that the victim was subjected to rape. 6. Even the complaint given by the Ambaben produced at Exh. 15 has been proved by examining PSI Kalsariya as PW No. 12 at Exh. 39. On reading the complaint given by Bai Amba - mother of the prosecutrix-victim which was recorded in the hospital, same was immediately sent to Vartej police station which was received by the PSO Jasingbhai Boriya along with vardhy, in which, whatever was recorded in the complaint given by the Bai Amba has been mentioned. Both the aforesaid witnesses are thoroughly cross examined by the defence however they were fully supported the case of the prosecution and they have maintained that whatever Ambaben stated the same was recorded as complaint and thumb impression of the Ambaben was also taken. At this stage, it is required to be noted that even injuries on the private part of the body of the victim and the bleeding from the private part has been established and proved by the prosecution by producing FSL report/semen report and by examining the panch witnesses. However, for whatever reasons and might be because of settlement between the accused and the complainant side thereafter by Amba mother of the victim, victim Gavu and Jasiben have turned hostile and have stated that one unknown persons only pushed Gavu and by falling down there was injury and bleeding. However, as stated herein above from the deposition of the Dr. Meghna Narendrabhai Mehta and the medical evidence on record the factum of rape committed on the victim Gavuben has been established and proved beyond doubt. Merely because, for whatever reasons PW Nos. However, as stated herein above from the deposition of the Dr. Meghna Narendrabhai Mehta and the medical evidence on record the factum of rape committed on the victim Gavuben has been established and proved beyond doubt. Merely because, for whatever reasons PW Nos. 1 to 3 have not supported the case of the prosecution and/or they have turned hostile, if by other evidence the factum of rape on the victim has been established and proved, the same can be considered. As observed herein above from the deposition of Dr. Meghna Narendrabhai Mehta and the medical evidence on record and even the complaint given by the Ambaben has been proved by examining PSI Kalsariya and PSO Jesingbhai Boriya. Under the circumstances, it is held that the victim who at the time of offence was aged 9 years was subjected to rape. 7. At this stage, it is required to be noted that even in the history given by Gavuben given before the Medical Officer of Sir T Hospital, Bhavnagar, she had specifically stated that she was subjected to rape. The panchnama of TI Parade has been proved by the prosecution by examining Executive Magistrate - Dilip Kantilal PW No. 11 at Exh. 36 and is independent witness and there is no reason to disbelieve the said witness - Dilip Kantilal. It is required to be noted that even the said panchnama of TI Parade was signed by even Ambaben Mohanbhai. 8. Now, next question would be with respect to identity of the accused. In the present case, in the TI parade conducted before the Executive Magistrate which was conducted in the presence of the mother of the victim - Bai Amba and in presence of the panchas, victim Gavu as well as Jasiben have identified the accused. It is also required to be noted that even the from cloths of the accused semen stains were found which were sent to the FSL. From the FSL report as well as semen report "B" Group was found which is that of the accused. Even semen stains which were found on the cloths of the victim are found to be that of the accused and/or same group of the accused (B group). It is required to be noted that Serological report though was produced by the prosecution by production purshis at Exh. Even semen stains which were found on the cloths of the victim are found to be that of the accused and/or same group of the accused (B group). It is required to be noted that Serological report though was produced by the prosecution by production purshis at Exh. 17 (Serological report of the FSL dated 7.7.2004) and the learned Judge also put the endorsement recorded on the production purshis at Exh. 17 and though the same was placed on record and in fact it is in the record and proceedings, the learned Presiding Judge did not gave the exhibit number to serological report sent by the FSL dated 7.7.2004. However, as the serological report is already on record of the case and in fact the same was produced along with production list at Exh. 17 and same has coming from the Government Department (FSL), the same can be read into evidence and same came to be exhibited. Thus, considering the FSL report and the semen report of the FSL, the semen stains found on the petticoat and miditop of the victim. Thus, as such the prosecution has been successful by leading cogent evidence that it was the respondent accused who committed the rape on the victim. 9. It is true that the learned Presiding Judge has disbelieved the identification of the accused by victim and Jasiben in the TI Parade solely on the ground that Bai Ambaben, victim and Jasiben have stated in the deposition that they have not identified the accused. However, it is required to be noted that all the aforesaid three were declared hostile and therefore, as such the learned trial Court ought not to have and could not have considered that part of the evidence of the hostile witnesses which do not support the case of the prosecution. However, the learned trial Court has not properly appreciated and considered the fact that Executive Magistrate Dilipbhai Kantilal before whom the TI Parade was conducted, who has been examined as PW No. 11 as an independent witness and nothing has been alleged against the said witnesses. Therefore, as such there was no reason for the learned trial Court to disbelieve the identification of the accused by the victim and Jasiben in presence of the Executive Magistrate and even the panchnama of the TI parade. 10. Therefore, as such there was no reason for the learned trial Court to disbelieve the identification of the accused by the victim and Jasiben in presence of the Executive Magistrate and even the panchnama of the TI parade. 10. From the impugned judgment and order passed by the learned trial Court, it appears that the learned trial Court has disposed of the trial in haste and in hurry as PW Nos. 1 to 3 - mother of victim, victim and Jasiben had turned hostile. However, considering the other evidence on record and offence alleged was heinous crime of rape and that too on the girl aged 9 years only, the learned trial Court ought to have become more vigilant and ought not to have disposed of the trial in a hurriedly manner and/or by taking casual approach. Thus, the learned trial Court has as such failed to taken due care while conducting the trial and it can be said that the learned Judge has failed to perform his duty judiciously. 11. In view of the above and the evidence on record and having held that the victim Gavuben was subjected to rape and identity of the respondent accused has been established and proved, the finding recorded by the learned trial Court while acquitting the accused cannot be sustained. The findings recorded by the learned trial Court can be said to be either contrary to evidence on record and/or misleading of the evidence on record both oral and documentary evidence which has resulted into miscarriage of justice. Under the circumstances, when the finding recorded by the learned trial Court has resulted into miscarriage of justice, this is a fit case to interfere with the impugned judgment and order of acquittal. In view of the above and for the reasons stated above, respondent herein - original accused is held to be guilty for the offence under Section 376 of the Indian Penal Code. In view of the above and for the reasons stated above, respondent herein - original accused is held to be guilty for the offence under Section 376 of the Indian Penal Code. As the victim was aged 9 years of aged at the time of commission of offence, the case would fall under Section 376of the Indian Penal Code and considering the sentence provided under Section 376 and the considering the manner in which the accused committed the offence and rape on the girl aged 9 years, while convicting the original accused under Section 376 of the Indian Penal Code, if sentence of 10 years RI is imposed, it can be said to be adequate punishment. 12. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order of acquittal dated 29.10.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Bhavnagar in Sessions Case No. 68 of 2004 acquitting the respondent herein- original accused is hereby quashed and set aside. Respondent herein - original accused is held guilty and is accordingly convicted for the offence under Section 376 of the Indian Penal Code and is sentenced to undergo 10 years RI with fine of Rs. 5000/- and in default to undergo further six months RI. Bail bond shall stands cancelled and respondent herein - original accused is directed to surrender before the concerned jail authority to undergo sentence as per the present judgment and order on or before 12.02.2016, failing which non-bailable warrant be issued against the respondent herein - original accused. Present appeal is allowed accordingly.