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2016 DIGILAW 371 (GUJ)

Chauhan Aaminmiya Mohmadhusen v. State of Gujarat

2016-02-16

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. Criminal Appeal No. 857 of 1999 is filed by the appellants who are original accused Nos. 2 & 3 and Criminal Appeal No. 872 of 1999 is filed by the appellant, who is original accused No. 1, challenging the impugned judgment and order rendered in Sessions Case No. 14/94 by the Addl. Sessions Judge, Banaskantha at Palanpur dated 30.7.1999 recording conviction of the accused for the offences under sections 344, 366 and 376 read with sec. 114 of IPC and imposing sentence as stated in detail in the impugned judgment and order. 2. The facts of the case, briefly summarized, are as follows: "2.1 As it transpires from the material and evidence on record, on 30.1.1990 the victim was in the house with the mother-in-law who was lying there as she was not well. The sister-in-law had gone to deliver milk at the dairy and at that time original accused Nos. 2 & 3, appellants in Criminal Appeal No. 857 of 1999, had come to her stating that her father had a heart attack and is ill and they have come to inform her. Therefore, the victim believed them and when they offered to take her in the jeep to village Vaghna at her parental house she accompanied them and boarded the jeep. However, when the driver was instructed to take the jeep towards Mehsana she inquired and she was conveyed that her father is in a Mehsana hospital. However, when she again inquired as to which hospital, the appellant, original accused Nos. 2, got angry and threatened her with a knife to sit quietly failing which she may be killed and therefore due to the threat she kept quiet. It is also stated that they made advances in the jeep and ultimately taken her to one vadaland near the S.T. depot where rape was committed on her and thereafter she was detained by original accused No. 1, appellant in Criminal Appeal No. 872 of 1999, who had kept her for 25 days. It is stated that original accused No. 1, appellant in Criminal Appeal No. 872 of 1999, used to provide her food and would keep a watch over her though he has not committed any act or assaulted and thereafter there were some photographs taken. It is stated that original accused No. 1, appellant in Criminal Appeal No. 872 of 1999, used to provide her food and would keep a watch over her though he has not committed any act or assaulted and thereafter there were some photographs taken. It further appears that the victim accompanied by original accused No. 1, appellant in Criminal Appeal No. 872 of 1999, had gone to village Sami to the cousin of the victim where she disclosed to her cousin and thereafter she was sent to her parental house. On the basis of that a complaint was registered which came to be registered as C.R. No. 29/90 with Chhipa Police Station for the offences under sections 344,366, 376 read with sec. 114 of IPC. 2.2. After the investigation was over, the charge-sheet was filed before the Court of Magistrate and it was committed to the Court of Sessions as the offences are triable by the court of sessions. 2.3 In order to bring home the charges levelled against the appellants accused, the prosecution examined the witnesses including the complainant-victim and other witnesses. 2.4 After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 313 of Cr.P.C. was recorded and the evidence of the defence was also recorded. 2.5 After hearing the learned APP as well as the learned advocate for the accused, the learned Addl. Sessions Judge, as stated above, recorded conviction for the offence under sec. 344, 366 and 376 r/w sec. 114 of IPC. 2.6 It is this judgment and order which has been assailed in the present appeals on the grounds stated in the memo of appeals." 3. Heard learned counsel Shri Nitin Amin for the appellants in Criminal Appeal No. 857 of 1999, original accused Nos. 2 & 3, learned advocate Shri BJ Trivedi for the appellant in Criminal Appeal No. 872 of 1999, original accused No. 1, and learned APP Shri HL Jani for the respondent State. 4. Learned counsel Shri Amin referred to the material and evidence at length and he also referred to the complaint at exh. 46 given by the victim. He submitted that there is a delay in filing the complaint. 4. Learned counsel Shri Amin referred to the material and evidence at length and he also referred to the complaint at exh. 46 given by the victim. He submitted that there is a delay in filing the complaint. He also submitted that the first version as per the husband disclosed before the police is that she is not traceable and thereafter the complaint came to be lodged by the victim at exh. 46. He submitted that the version stated by the victim in her complaint requires a closer scrutiny as it is not believable. Learned counsel Shri Amin submitted that as it is stated that she had accompanied the accused persons and thereafter from Mehsana, Radhanpur and other places they had gone where she had ample opportunity to raise alarm which is not done. Therefore, the manner in which the incident is said to have taken place may not be accepted as a Gospel truth. He pointedly referred to the testimony of the victim, PW 1 at exh. 13 and submitted that though it is stated that the act was committed by both the accused, there are no marks of injury and the injury which is said to have been caused to her on her private part is also not corroborated by the medical evidence. He pointedly referred to the medical evidence on this aspect. He referred to the testimony of Dr. Dhuvad, PW-11 at exh. 36 who had examined the victim and submitted that it raises doubt about the age of the injury. He pointedly referred to the cross-examination and submitted that on the one hand she has stated that the injuries were healed and it could be before 7-8 days and therefore the say of the victim about the injury on her private part caused by the accused is belied by this medical evidence. He also referred to the medical certificate at exh. 39. He referred to the panchnama at exh. 15 abut the physical condition of the victim and submitted that PW-2 panch witness is not believable as he was known to the victim as it is stated by the witness in her evidence/testimony at exh. 14. He therefore submitted that the testimony of this panch witness regarding panchnama of the physical condition of the victim is not believable. 5. 15 abut the physical condition of the victim and submitted that PW-2 panch witness is not believable as he was known to the victim as it is stated by the witness in her evidence/testimony at exh. 14. He therefore submitted that the testimony of this panch witness regarding panchnama of the physical condition of the victim is not believable. 5. Again, learned counsel Shri Amin referred to the testimony of the victim and submitted that her testimony does not appear to be truthful as, though she had sufficient opportunity to raise alarm, she has not raised. Further, though the act is said to have been committed in the open bushes there are no injuries. Learned counsel Shri Amin further submitted that if the act was committed in open bushes near the bus depot, there would be people around and she could have raised shout for help. He referred to her testimony and submitted that admittedly she has not raised any shout for help. Learned counsel Shri Amin referred to the testimony of PW-4, panch witness for the scene of offence and submitted that he has turned hostile. He referred to the testimony of PW-5, who is the husband of the cousin Zubeda whom the victim had visited. He submitted that she has also not corroborated or supported the prosecution case. Learned counsel Shri Amin submitted that as stated by this witness that his wife, cousin of the victim, is said to have stated that the victim had run away and thereafter they were caught. He therefore submitted that it has to be considered with the initial version of the prosecution case that the victim was not traceable. Learned counsel Shri Amin therefore submitted that no recovery or discovery of the weapon knife is made by which the injury is said to have been caused. He also referred to the testimony of PW-12, investigating officer and referred to the cross-examination that Janvajog entry No. 4 was given at Chhapi Police Station earlier and some investigation was made which has not been brought on record. He therefore submitted that the investigation is not fair and it has kept back certain relevant material with regard to the papers of the inquiry made on the basis of initial entry No. 4/90. 6. He therefore submitted that the investigation is not fair and it has kept back certain relevant material with regard to the papers of the inquiry made on the basis of initial entry No. 4/90. 6. Learned counsel Shri Amin has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2011 SC 715 in the case of Alamelu and anr. v. State, represented by Inspector of police. He pointedly referred to the observations made in para 46 to reflect about the conduct and submitted that in the facts of the present case also the behaviour of the victim is unnatural as she had an opportunity to complain or to raise shout and she had not made any effort. 7. Learned advocate Shri Trivedi appearing for the appellant in Criminal Appeal No. 872 of 1999, original accused No. 1, submitted that he would adopt the submissions made by learned advocate Shri Amin. However, he submitted that the appellant in Criminal Appeal No. 872/99, original accused No. 1, is admittedly not attributed with any charge for the offence under sec. 376. He pointedly referred to the testimony of the victim and submitted that as stated in her complaint also, though she was left by original accused Nos. 2 & 3 with the present appellant, original accused No. 1, he had kept a watch on her but had not committed any offence and therefore his role is only for abetment and that too for keeping the victim and not for the actual offence under sec. 376. Learned advocate Shri Trivedi, therefore, submitted that though the offence under sec. 366 and 376 r/w sec. 114 of IPC is said to have been attributed, the evidence is not supporting and therefore the appellant is convicted erroneously. He submitted that if the initial entry No. 4/90 is considered, it is required to be considered whether the victim had voluntarily remained there. Learned advocate Shri Trivedi further submitted that the aspect of photograph with someone is referred to but there is nothing placed on record and therefore the investigation is not fair. He therefore submitted that when the prosecution has failed to establish these material aspects, the benefit could have been given to the appellant, accused No. 1. He submitted that the accused has not disproved and the burden lies on the prosecution to prove beyond reasonable doubt. He therefore submitted that when the prosecution has failed to establish these material aspects, the benefit could have been given to the appellant, accused No. 1. He submitted that the accused has not disproved and the burden lies on the prosecution to prove beyond reasonable doubt. He therefore submitted that the appeal may be allowed. 8. Learned APP Shri Jani referred to the testimony of the victim at exh. 13 and other testimonies of the persons including the panch witness and of the doctor. Learned APP Shri Jani submitted that the testimony of the victim at exh. 13 is corroborated by the medical evidence. For that purpose he again referred to the testimony of the doctor, PW-11 at exh. 36. He also referred to the police yadi at exh. 37 & 38 and also the injury certificate at exh. 39. Learned APP Shri Jani submitted that the medical certificate at exh. 39 clearly establishes the version of the victim and there are marks of injuries found. He therefore submitted that it cannot be said from the testimony of Dr. Dhuvad, PW-11 at exh. 36 that there were no injuries or that the version of the victim is not corroborated by medical evidence. He pointedly referred to the testimony of Dr. Dhuvad, PW-11, exh. 36 and submitted that he has specifically stated about the injuries and he has also referred to the injury on her private part. He has also confirmed that such an injury could be caused with the weapon knife by hitting which has caused the scar. 9. Learned APP Shri Jani, therefore, submitted that the evidence has to be read as a whole and it cannot be dissected by separate lines. Learned APP Shri Jani submitted that the submission made with regard to the age of the injury to suggest that the doctor has stated that it was healed and therefore such an injury could not have been caused by the accused is thoroughly misconceived as what has been stated is about the healing process by the doctor who examined the victim. He submitted that in any case it is a medical opinion corroborating the direct version of the victim. He submitted that in such issues the testimony or version of the injured victim has to be preferred as it is the direct evidence and it cannot be discarded easily. He submitted that in any case it is a medical opinion corroborating the direct version of the victim. He submitted that in such issues the testimony or version of the injured victim has to be preferred as it is the direct evidence and it cannot be discarded easily. Therefore, learned APP Shri Jani submitted that in fact it is a case of gang rape. However, as there are no charges we may have to proceed considering the time lag. Further, he submitted that the testimony of the victim is truthful and the submission about her not raising shout or alarm though she had the opportunity has to be considered in background of the facts. He submitted that she was kept in the bushes and thereafter the appellants, original accused Nos. 2 & 3, had left her with original accused No. 1 (appellant in Criminal Appeal No. 872/99) who has kept a watch over her. He submitted that the bushes may be near the S.T. depot, but if such an act is committed in the bushes nobody would know and as she was threatened she may not have been able to raise any shout. Learned APP Shri Jani submitted that it may also be considered that a helpless woman overpowered by two strong men could hardly be said to have any scope for resistance. He submitted that merely because some suggestions are made or the submission is made on hypothesis cannot be accepted. Further, learned APP Shri Jani submitted that the injury on the body of the victim established and corroborated by the medical evidence cannot be discarded merely because a contention is raised about the age of the injury. It cannot be a ground to discard the entire evidence. He further submitted that the process of healing may have a different stage qua individual patient and the doctor would give opinion about the duration of healing which need not be considered as the age of injury to nullify the entire evidence. Learned APP Shri Jani also referred to the testimony of PW-7, owner of the premises at exh. 21, and submitted that he has also corroborated that the victim was there with the original accused No. 1 who was kept under a disguise. 10. Learned APP Shri Jani also referred to the testimony of PW-7, owner of the premises at exh. 21, and submitted that he has also corroborated that the victim was there with the original accused No. 1 who was kept under a disguise. 10. Learned APP Shri Jani has placed reliance on the judgment of the Hon'ble Apex Court reported in (2004) 3 SCC 106 in the case of Dastagirsab and anr. v. State of Karnataka and submitted that in the facts of the case the testimony of the victim regarding injury is corroborated by medical evidence establishing that there were injuries as stated. Learned APP Shri Jani submitted that as observed in this judgment, injury is not a sine-qua-non and even if there is no injury or marks of injury the testimony of the victim could be believed if it is found to be reliable and trustworthy. He has emphasised the observation, "Injury on the body of the person of the victim is not a sine qua non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot, thus, be the sole criterion for coming to a conclusion that no such offence had taken place." Similarly, he has referred to the judgment of the Hon'ble Apex Court reported in (2015) 4 SCC 491 in the case of Ravindra v. State of Madhya Pradesh and submitted that as observed, the testimony of the victim of sexual assault cannot be tested with suspicion and if her evidence is found to be reliable no corroboration is required. 11. Learned APP Shri Jani also submitted that the submission that the investigation is not properly made or it is not fair is also misconceived. He submitted that in any case the benefit should not go to the accused merely because there is some lapse in the investigation. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2015) 9 SCC 588 in the case of V.K. Mishra and anr. v. State of Uttarakhand and anr. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2015) 9 SCC 588 in the case of V.K. Mishra and anr. v. State of Uttarakhand and anr. and pointedly referred to the Head Note-G and observations in para 33, 38 and submitted that as observed in this judgment any omission on the part of the investigating officer cannot go against the prosecution and the interest of justice demand that such act or omission of the I.O. should not be taken in favour of the accused as otherwise it would amount to giving premium to the accused. 12. In view of these rival submissions, it is required to be considered whether the present appeals deserve consideration. 13. As it transpires from the background of facts, as revealed from the material and evidence on record, the victim has narrated about the incident in her testimony at exh. 13 which is corroborated by the medical evidence. Though the submissions have been made by learned counsel Shri Amin that in spite of sufficient opportunity the victim has not raised any shout or alarm and the offence was committed in the bushes near S.T. depot, she could have raised shout for help requires a closer scrutiny. As it transpires, the victim was taken away in disguise that her father is ill and she has stated in her testimony as to what transpired and when she asked about the hospital she was threatened with a knife. Thereafter, she was taken to the bushes where the act was committed. It is required to be stated that the appellants in Criminal Appeal No. 857 of 1999, original accused Nos. 2 & 3, overpowered her and it would not leave any scope for the victim. It is also required to be borne in mind that a helpless woman in such a situation may have such a diffidence that she may not be able to gather the courage and her mental state could be in a nonplussed situation looking at the impending tragedy. The submission that even though it was bushes there are no marks of injury is misconceived. The testimony of Dr. Dhuvad, PW-11, exh. 36 clearly refers to the injuries of the victim. The submission that even though it was bushes there are no marks of injury is misconceived. The testimony of Dr. Dhuvad, PW-11, exh. 36 clearly refers to the injuries of the victim. Further, the testimony of the victim with regard to the scar with knife on her private part, on the contrary, is corroborated by this medical evidence in the form of testimony of Dr. Dhuvad, PW-11, exh. 36. The submission made by learned counsel Shri Amin referring to the age of the injury, referring to the testimony of Dr. Dhuvad, PW-11 at exh. 36, that he has stated about the injury that it could be before 7 days cannot be read in isolation and/or out of context with the testimony of the victim or the testimony of the doctor at exh. 36. The doctor in his testimony at exh. 36 has stated about the injury which was healing. Admittedly, some time has lapsed between the injury and the examination of the doctor. During this period the healing may start and therefore the opinion could be there with regard to the process of healing which may differ from person to person. Therefore, only by reading one line from the testimony the entire case of the prosecution cannot be thrown overboard. Further, it is well-accepted that during the testimony the injured victim has to be believed when there is any discrepancy in the testimony of the victim and the testimony in the form of medical opinion. 14. A useful reference can be made to the judgment of the Hon'ble Apex Court in the judgment reported in AIR 2008 SC 1747 in the case of Ram Swaroop v. State of Rajasthan, wherein it has been observed that where there is variance between medical evidence and ocular evidence, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. In any case, in the facts of the case, there is no inconsistency in the testimony of the victim and the medial evidence in the form of testimony of the doctor, PW-11 at exh. 36. 15. In any case, in the facts of the case, there is no inconsistency in the testimony of the victim and the medial evidence in the form of testimony of the doctor, PW-11 at exh. 36. 15. A useful reference can also be made to the judgment of the Hon'ble Apex Court reported in (1996) 2 SCC 384 in the case of State of Punjab v. Gurmit Singh and ors., wherein it has been observed, "....The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury........ Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable..." 16. Further, the submission made with regard to the flaws in the investigation about discovery or recovery of the knife and/or also further investigation with regard to the photo of the victim with other person could hardly be said to be relevant. Assuming that there were some flaws in the investigation, it could not have caused any prejudice to the accused and therefore cannot claim any benefit as rightly emphasised by the learned APP. Assuming that there were some flaws in the investigation, it could not have caused any prejudice to the accused and therefore cannot claim any benefit as rightly emphasised by the learned APP. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (1999) 8 SCC 715 in the case of State of Karnataka v. K. Yarappa Reddy wherein it has been observed, ".....It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case...." 17. Another facet of the submissions made by learned counsel Shri Amin referring to the testimony of the I.O., PW-12 at exh. 41 is that earlier entry No. 4/90 was registered at Chhapi Police Station and whatever inquiry was made those papers are not placed and therefore it is not fair again referring to the aspect of investigation. Further, the submission that the photograph of the victim was taken with one Iqbal which has not been further investigated would not have much relevance for the purpose of deciding the present appeals regarding the offence under sec. 376. The testimony of the victim corroborated by the medical evidence and even the panchnama of the physical condition of the victim at exh. 15 establishes the offence as discussed in the impugned judgment. In fact, it is required to be noted that the victim is truthful in her testimony when she has specifically stated that though she was left by the appellants in Criminal Appeal No. 857/99, original accused Nos. 15 establishes the offence as discussed in the impugned judgment. In fact, it is required to be noted that the victim is truthful in her testimony when she has specifically stated that though she was left by the appellants in Criminal Appeal No. 857/99, original accused Nos. 2 & 3, after the act in the custody of original accused No. 1 (appellant in Criminal Appeal No. 872/99), she has categorically stated that original accused No. 1 has not committed any offence though she was kept under his watch and it would clearly suggest that the victim has been candid in her say about what has transpired. The reliance placed by learned counsel Shri Amin on the judgment reported in AIR 2011 SC 715 in the case of Alamelu and anr. v. State, represented by Inspector of police referring to para 46 will not have any application qua the facts of the present case because, as referred in para 46, the facts were different. 18. Therefore, on appreciating and scanning the entire material and evidence while deciding the present appeal, it cannot be said that there is any error and the present appeal cannot be entertained and the judgment and order recording conviction of the appellants in Criminal Appeal No. 857 of 1999 deserves to be confirmed. 19. Similarly, though the submissions have been made referring to the role of the appellant in Criminal Appeal No. 872/99, original accused No. 1, that he has not been involved or indulged in the offence under sec. 376, nor there can he be said to have abetted and therefore the conviction is recorded erroneously cannot be readily accepted. In fact, while appreciating the role and considering the testimony of the victim and circumstances, the appellant in Criminal Appeal N. 872/99, original accused No. 1, has not committed any offence under sec. 376. He has not been convicted qua the said offence under sec. 366, 376 and his conviction is confined to the offence under sec. 344 regarding wrongful confinement and accordingly the sentence has been imposed. 20. Therefore, in view of the aforesaid discussion and the facts and circumstances, on appreciation of material and evidence, the impugned judgment and order recording conviction does not call for any interference and it is hereby confirmed. Both the appeals accordingly stand dismissed. 344 regarding wrongful confinement and accordingly the sentence has been imposed. 20. Therefore, in view of the aforesaid discussion and the facts and circumstances, on appreciation of material and evidence, the impugned judgment and order recording conviction does not call for any interference and it is hereby confirmed. Both the appeals accordingly stand dismissed. FURTHER ORDER After the order was pronounced, learned counsel Shri Amin has requested for 10 weeks' time to surrender. Request is granted.