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2016 DIGILAW 183 (GUJ)

Abdulbhai Isakbhai Miyana v. State of Gujarat

2016-01-25

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present Appeal is directed against the judgment and order rendered in Sessions Case No. 28 of 2012 by the learned Sessions Judge, Surendranagar dated 8.8.2012 recording conviction of the Appellant Accused for the offence under Sections 376, 506(2) of the Indian Penal Code imposing the sentence as stated in detail in the judgment and order. The facts of the case briefly summarized are as follows. 2. As it transpires from the record that on 14.1.2012 at about 6:30 PM when the victim had gone to answer the natural call in the compound of the Jilla Panchayat Office known as Pathik Ashram, which is a lonely area, the Appellant/Accused had dragged her in the bushes, gagged her mouth, overpowered her and committed the offence of rape. Therefore the complaint came to be filed which is registered as FIR No. 9/2012 with Surendranagar City Police Station for the offence under Sections 376, 323, 504and 506(2) of IPC. 3. After the investigation was over the charge sheet was filed and as the offence under Section 376 IPC is triable by the Court of Sessions, the learned Sessions Judge, Surendranagar framed the charges for the offence and proceeded with the trial. 4. In order to bring home the charges leveled against the Appellant/Accused, the prosecution has examined the witnesses including the victim and also produced the documentary evidence in the form of medical evidence which shall be referred to hereinafter. 5. After the recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Surendranagar recorded the further statement of the Appellant/Accused under Section 313 of the Code of Criminal Procedure. 6. After hearing the learned APP as well as learned Advocate for the Accused, the learned Sessions Judge, Surendranagar recorded the conviction of the Accused and sentenced him as stated in detail in the impugned judgment and order. It is this judgment and order which has been assailed in the present Appeal on the grounds stated in the memo of Appeal. 7. Heard learned Advocate Shri Y.J. Patel for the Appellant/Accused and learned APP Shri H.L. Jani for the Respondent - State of Gujarat. 8. Learned Advocate Shri Y.J. Patel for the Appellant/Accused referred to the testimony of the victim PW-2 at Exh. 13 and her complaint at Exh. 14. 7. Heard learned Advocate Shri Y.J. Patel for the Appellant/Accused and learned APP Shri H.L. Jani for the Respondent - State of Gujarat. 8. Learned Advocate Shri Y.J. Patel for the Appellant/Accused referred to the testimony of the victim PW-2 at Exh. 13 and her complaint at Exh. 14. Learned Advocate Shri Patel pointedly referred to the testimony of the victim and submitted that on the one hand she has stated the name of the Accused and on the other hand she has said that she does not know the Accused and therefore there is a discrepancy in her evidence. Learned Advocate Shri Patel has referred to the testimony of PW-3 at Exh. 15 and submitted that he has not supported the prosecution case. Similarly, he has referred to the testimony of Dr. Bansi PW-6 at Exh. 19 and the certificate at Exh. 21 and Exh. 24. Learned Advocate Shri Patel submitted that there are no marks of injuries as stated by the another Doctor named Shetal Prajapati - PW-9 who is a Gynecologist. Learned Advocate Shri Patel referred to the testimony of Dr. Shetal Prajapati PW-9 at Exh. 31 to emphasize that on one hand she has stated that there were no injuries and the act was consensual. Learned Advocate Shri Patel submitted that the victim was a married woman with children and therefore absence of any injury would suggest about her consent. Learned Advocate Shri Patel submitted that this aspect has not been properly appreciated by the court below. Learned Advocate Shri Patel has also referred to the FSL report and submitted that the FSL report does not confirm about the act and therefore the same may not attract Section 376 IPC. 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. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2013) 4 SCC 206 in case of State of Rajasthan v. Babu Meena. Learned Advocate Shri Patel submitted that the conviction recorded by the court below is not proper and the present Appeal may be allowed. Lastly, learned Advocate Shri Patel submitted that considering the young age of the Accused and other circumstances, the sentence may be reduced or modified. 9. Learned Advocate Shri Patel submitted that the conviction recorded by the court below is not proper and the present Appeal may be allowed. Lastly, learned Advocate Shri Patel submitted that considering the young age of the Accused and other circumstances, the sentence may be reduced or modified. 9. Learned APP Shri H.L. Jani referred to the testimony of the victim PW-2 at Exh. 13 and submitted that she has clearly stated as to what has transpired when she has gone to answer a natural call. She was dragged in the bushes, her mouth was gagged and the act was committed. Learned APP Shri Jani submitted that the aspect of consent is wholly irrelevant and the submission about the absence of marks of injury is also misconceived. Learned APP Shri Jani has referred to the medical evidence of Dr. Bansi PW-6 at Exh. 19 and the medical evidence in the form of certificate at Exh. 21. Learned APP Shri Jani emphasized that in the history given by the Accused himself, which is an extra judicial confession, he has admitted about the act and there are also some injuries on his hands and the left cheek. Learned APP Shri Jani also referred to Exh. 24 which is a certificate of the victim where the victim has also stated while giving history about the incident which is corroborated by her testimony that she was dragged in the bushes and the act was committed and there are also marks of injuries including the injuries on her buttocks. Therefore, learned APP Shri Jani submitted that it cannot be said that there is no injury. The marks of injury would suggest about some resistance offered. Learned APP Shri Jani further submitted that the injury is not a sine qua non. Learned APP Shri Jani submitted that when the Accused himself while giving the history to the Doctor has stated before the Doctor about the act and how the incident has occurred is an extra judicial confession which has to be considered. In support of this submission, he has referred and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 3 SCC 85 in case of B.A. Umesh v. Registrar General, High Court of Karnataka. In support of this submission, he has referred and relied upon the judgment of the Hon'ble Apex Court reported in (2011) 3 SCC 85 in case of B.A. Umesh v. Registrar General, High Court of Karnataka. Learned APP Shri Jani submitted that as observed in this judgment in paragraphs 44 to 46 and paragraph 65 referring to Section 24 of the Evidence Act 1872, it is a clear evidence and the Hon'ble Apex Court has made the observation that such extra judicial confession also cannot be brushed aside. He further submitted that the submission made relying on the FSL report that there are absence of blood stains or semen would indicate that no such act has taken place, cannot be believed. Learned APP Shri Jani submitted that the definition of rape under Section 375 does not require any penetration and the over all circumstances has to be considered. Again he referred to the judgment of the Hon'ble Apex Court reported in (2011) 3 SCC 85 in case of B.A. Umesh v. Registrar General, High Court of Karnataka and submitted that as observed, the circumstantial evidence has to be considered and merely because the FSL report does not corroborate about the blood stains or the stains of semen would not be sufficient to discard the prosecution case which is otherwise established. Learned APP Shri Jani referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2012 SC 1377 in case of Rajendra Pralhadrao Wasnik v. State of Maharashtra and submitted that as observed in this judgment that even if the FSL report is not connecting to the Accused or not fully corroborates, it would not be sufficient if the offence is otherwise proved by other evidence and the benefit of doubt cannot be given. Learned APP Shri Jani pointedly emphasized the observations made in this judgment; "Merely because the report was inconclusive, it is not necessary that that the irresistible conclusion is only one that the accused is not guilty, particularly where the prosecution has been able to establish its case on circumstantial evidence as also by direct oral evidence. It is a settled principle of law that the evidence has to be read in its entirety. It is a settled principle of law that the evidence has to be read in its entirety. If, upon reading the evidence as such, there are serious loopholes or lacking in the case of the prosecution and they do not prove that the accused is guilty, then the Court would be justified in giving the benefit of doubt to the accused on the strength of a weak FSL report." Learned APP Shri Jani therefore submitted that the impugned judgment and order recording conviction may not be disturbed. He submitted that considering the nature of offence, the modification in the sentence or the reduction may also not be justified. 10. In view of this rival submissions, it is required to be considered whether the present Appeal deserve consideration. 11. As discussed herein above, the victim had gone to answer a natural call in the evening in the area of the office which is known as Pathik Ashram and the Accused is said to have dragged her in the bushes, gagged her mouth and overpowered her and committed the offence of rape. The victim has narrated in her testimony about how she could not offer much resistance and also the fact that she was gagged. Further, as rightly submitted, it cannot be said that there are no mark of injuries. The two certificates at Exh. 21 and Exh. 24 referring to the mark of injuries on the Accused as well as on the victim suggest about some struggle for resistance. Though the Accused is said to have explained that due to Makar Sankranti he has received these injuries, can hardly be accepted. Further, the victim has received injuries on her buttocks and also on the other parts which is indicative of the resistance offered but she may have been overpowered. In light of the above, therefore the direct testimony of the victim, which is natural and reliable, the prosecution case cannot be brushed aside. It is not even the case of the defence that there was any relationship and the Accused was a stranger. There is no question of consent as suggested without any material suggesting any kind of relationship. Therefore, in view of the testimony of the victim at Exh. 13 corroborated by the medical evidence in the form of testimony of Dr. Bansi PW-6 at Exh. There is no question of consent as suggested without any material suggesting any kind of relationship. Therefore, in view of the testimony of the victim at Exh. 13 corroborated by the medical evidence in the form of testimony of Dr. Bansi PW-6 at Exh. 19 and also the injury certificate and the medical certificate of the Accused at Exh. 21 and the victim at Exh. 24, there is hardly any scope of doubt as suggested. Though the submissions have been made by learned Advocate Shri patel emphasizing the testimony of Dr. Shetal Prajapati PW-9 at Exh. 31 that she has not supported the prosecution case and has stated about the absence of injury and the consent, it is required to be stated that she has not been confronted with any such medical papers and without reference to the actual papers regarding the injury as well as the history, she could not have stated anything. In any case, it is well settled that the medical evidence is in the form of an opinion and the direct evidence of the victim has to be preferred over such evidence. 12. The another facet of the submission relying on the FSL report that it does not confirm the act and therefore the offence under Section 376 is not established is also misconceived. Assuming that the FSL report suggesting absence of any blood stains or the semen, it would not help the Accused in any manner inasmuch as it is submitted by learned APP that it does not require full penetration or ejaculation and therefore the fact that there are no blood stains by itself would not be a ground to raise any doubt discarding the other evidence. It is required to be noted that the Accused himself while giving history before the Doctor has confirmed about the act and how it has occurred, which would be an extra judicial confession before the Doctor who is a unknown person who has nothing against the Accused. Therefore, reference made by learned APP Shri H.L. Jani to the judgment of the Hon'ble Apex Court reported in (2011) 3 SCC 85 in case of B.A. Umesh v. Registrar General, High Court of Karnataka supports the submission. The Hon'ble Apex Court in a judgment reported in (2007) 3 SCC 1 in case of Ram Singh v. Sonia and Ors. Therefore, reference made by learned APP Shri H.L. Jani to the judgment of the Hon'ble Apex Court reported in (2011) 3 SCC 85 in case of B.A. Umesh v. Registrar General, High Court of Karnataka supports the submission. The Hon'ble Apex Court in a judgment reported in (2007) 3 SCC 1 in case of Ram Singh v. Sonia and Ors. has referred to this aspect about the extra judicial confession and how it should be considered. It has been quoted from the earlier judgment reported in (2001) 2 SCC 205 in case of Gura Singh v. State of Rajasthan; "It is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement." Therefore the judgment and order recording the conviction of the Appellant/Accused does not call for any interference. 13. The submission made by learned Advocate Shri Y.J. Patel for the Appellant/Accused that while maintaining the conviction, sentence may be reduced or modified referring to the age of the accused, is also misconceived. The Hon'ble Apex Court in a judgment reported in (2015) 4 SCC 762 in case of Deepak v. State of Haryana has clearly observed rejecting such submission that it has no merit and such a ground cannot be considered. 14. Further, the doctrine of proportionality in sentence obliges the court to impose the adequate sentence. The Courts have to consider the right of the Accused and the right of the victim or the society in general which is required to be balanced. Therefore, the Court is required to consider the doctrine of proportionality while imposing the sentence with reference to the gravity of the offence in order to maintain the faith in the criminal justice system. Therefore the submission made for leniency or for reduction of sentence, cannot be readily accepted. 15. In the result, the present Appeal deserves to be dismissed and accordingly stands dismissed. Therefore the submission made for leniency or for reduction of sentence, cannot be readily accepted. 15. In the result, the present Appeal deserves to be dismissed and accordingly stands dismissed. The impugned judgment and order rendered by the learned Sessions Judge, Surendranagar in Sessions Case No. 28 of 2012 dated 8.8.2012 recording the conviction as stated herein above is hereby confirmed. The present Appeal stands dismissed.