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2016 DIGILAW 587 (GUJ)

Vijaybhai Babubhai Makwana v. State of Gujarat

2016-03-14

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present Appeal is directed against the impugned judgment and order rendered in Atrocity Sessions Case No. 11 of 2011 by the learned Additional Sessions Judge, Jetpur dated 21.12.2013 recording conviction and sentence of the Appellants - Original Accused Nos. 1 and 2 as stated in detail in the impugned judgment and order. The facts of the case briefly summarized are as follows. 2. On 26.4.2011, the complainant victim had given the complaint that the Appellant - Original Accused No. 1 is the husband and he had been gambling and was making the complainant to do the labour work. Thereafter the Appellants - Original Accused Nos. 1 and 2 are said to have sold her for Rs. 50,000/- to the friend of Original Accused No. 1 i.e. Original Accused No. 3. It is also stated by the complainant that the Original Accused No. 2 - mother-in-law had forcibly administered her the medicine for abortion and termination of pregnancy and thereafter the Appellant/Original Accused No. 1 had taken her to the village Dhansuria to the house of the Original Accused No. 3, where the Appellant/Original Accused No. 1 - husband left her and the Original Accused No. 3 is said to have committed offence of rape, which has led to the complaint, which was registered as FIR No. 49/2011 with Jetpur Police Station. An application was also given for adding the offence under Section 376 IPC and therefore the said complaint being FIR No. 49/2011 has been registered for the offence under Sections 376, 323, 506(2) and 114 of the IPC with Jetput Police Station. 3. After the investigation was over, the charge sheet came to be filed for the offences under Sections376, 323, 506(2) and 114 of the IPC, and as the offences are triable by the Court of Sessions, it was committed to the Court of Sessions, Jetpur. 4. The learned Additional Sessions Judge proceeded with the trial and recorded the evidence of the prosecution witnesses. After the recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded the further statement of the Accused persons under Section 313 of the Code of Criminal Procedure. 5. After hearing learned PP as well as learned Advocate for the defence, the learned Sessions Judge recorded the conviction as stated in detail in the impugned judgment and order. 5. After hearing learned PP as well as learned Advocate for the defence, the learned Sessions Judge recorded the conviction 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 Appeal. 6. Heard learned Advocate Shri M.A. Bukhari for the Appellants and learned APP Shri H.L. Jani for the Respondent - State of Gujarat. 7. Learned Advocate Shri M.A. Bukhari for the Appellants referred to the testimony of the victim PW-3 at Exh. 61 at length. Similarly, he referred to the testimony of Dr. Dilipbhai Trivedi PW-14 at Exh. 84 and tried to submit that the offence is not established and there was a consent. Learned Advocate Shri Bukhari further referred to the testimony of Ambabhai PW-15 (father of the victim) at Exh. 88 and submitted that in fact he had sought to compromise, and the allegations, which have been made are only to extract the money. Learned Advocate Shri Bukhari also referred to the testimony of the I.O. PW-17 at Exh. 91 and the testimony of the another I.O. PW-18 at Exh. 93 and submitted that there is no evidence about the offence of rape by Original Accused No. 3. He further referred to the testimony of Dr. Shetalben Prajapati PW-19 at Exh. 97 and pointedly referred to the history. Learned Advocate Shri Bukhari therefore submitted that in the history recorded by another Dr. Kaushikbhai Dholeria PW-20 at Exh. 100, there is a discrepancy as regards the history, and if the testimony of all the three Doctors, including the testimony of Dr. Kaushikbhai Dholeria PW-20 at Exh. 100 and Dr. Sanjaykumar Sinha PW-21 at Exh. 107 is considered, there is no mark of any injury, and the history is not consistent and corroborating the version of the prosecution. Learned Advocate Shri Bukhari pointedly referred to the history recorded by Dr. Sanjaykumar Sinha PW-21 at Exh. 107 and submitted that it leaves the doubt, and in any case, there are discrepancies in the prosecution case even as per the history given by the victim herself and recorded by different Doctors. 8. Learned Advocate Shri Bukhari pointedly referred to the history recorded by Dr. Sanjaykumar Sinha PW-21 at Exh. 107 and submitted that it leaves the doubt, and in any case, there are discrepancies in the prosecution case even as per the history given by the victim herself and recorded by different Doctors. 8. Learned Advocate Shri Bukhari also submitted that the complaint of the victim may not be accepted as a gospel truth as it is stated that it was dictated by some other person, for which, he referred to the testimony of the victim PW-3 at Exh. 61. 9. Learned Advocate Shri Bukhari submitted that there is no evidence that the victim was sold for Rs. 50,000/- by the Appellant/Original Accused No. 1. Similarly, learned Advocate Shri Bukhari strenuously submitted that though it is said that the Appellant (mother-in-law) - Original Accused No. 2 is said to have administered the medicine for termination of pregnancy forcibly, there is no evidence. In fact the Investigating Officer has not collected any further evidence and therefore the charges qua the Appellant/Original Accused No. 2 cannot be said to have been established. Learned Advocate Shri Bukhari also tried to submit referring to the evidence as regards the pregnancy and submitted that the charge with regard to the termination of pregnancy is misconceived. For that, learned Advocate Shri Bukhari again referred to the testimony of Dr. Dilipbhai Trivedi PW-14 at Exh. 86. He therefore submitted that the Doctor has not clearly stated as he has only opined that it could be verified with the other doctors and therefore the charges regarding administering the medicine for termination of pregnancy are not proved. 10. Learned Advocate Shri Bukhari also submitted that though there is a charge under Section 120B IPC regarding conspiracy, there is no evidence qua the Appellant/Original Accused No. 2 - mother-in-law that there was any such discussion with regard to any conspiracy about selling her away to the Original Accused No. 3. There is no evidence that Appellants/Original Accused Nos. 1 and 2 had conspired or had ever any agreement for selling her away to Original Accused No. 3. 11. Learned Advocate Shri Bukhari submitted that there is an issue with regard to the jurisdiction as the incident is said to have taken place in Sabarkantha. There is no evidence that Appellants/Original Accused Nos. 1 and 2 had conspired or had ever any agreement for selling her away to Original Accused No. 3. 11. Learned Advocate Shri Bukhari submitted that there is an issue with regard to the jurisdiction as the incident is said to have taken place in Sabarkantha. For that he referred to Section 154 of Cr.P.C. and submitted that if there is a cognizable offence, the Court at Sabarkantha could take the cognizance. Learned Advocate Shri Bukhari also also referred to Sections 157 and 177 and submitted that the entire trial has been proceeded without jurisdiction and therefore the judgment and order recording conviction may be quashed and set aside and the present Appeal may be allowed. 12. Learned APP Shri H.L. Jani for the Respondent - State of Gujarat however referred to the testimony of the victim PW-3 at Exh. 61 and submitted that her testimony is natural and she has revealed about her plight that first she was abused and harassed as the Appellant/Original Accused No. 1 husband was having the habit of gambling and was not doing any work. She was forced to do the labour work and thereafter because of the debts and other reasons he is said to have sold her to the Original Accused No. 3. For that purpose, learned APP Shri Jani referred to her testimony as well as the complaint given initially and thereafter further report for the offence under Section 376 IPC. Learned APP Shri H.L. Jani submitted that in fact a memorandum of understanding at Exh. 65 as well as the affidavit at Exh. 66 reflect about the mentality and the attitude of the Appellants/Accused persons, and therefore, the submission about the lack of conspiracy is without any substance. In fact the Appellant No. 1/Original Accused No. 1 - husband in connivance with Appellant No. 2/Originalo Accused No. 2 - mother-in-law, had managed to sell her away and it would be established that all the Accused Persons were together, and in fact, there is no cross-examination with regard to this document at Exh. 65 and Exh. 66 which clearly establishes the case of the prosecution and the version of the victim. 13. Learned APP Shri H.L. Jani submitted that Exh. 92 is the FIR and thereafter the offence under Section 376 is added. He also referred to the testimony of PW-19 Dr. 65 and Exh. 66 which clearly establishes the case of the prosecution and the version of the victim. 13. Learned APP Shri H.L. Jani submitted that Exh. 92 is the FIR and thereafter the offence under Section 376 is added. He also referred to the testimony of PW-19 Dr. Shetalben Prajapati at Exh. 97 as well as the testimony of Dr. Kaushikbhai Dholaria PW-20 at Exh. 100 and submitted that Dr. Kaushikbhai Dholaria, who is the Medical Officer, Government Hospital, has clearly recorded the history. He also referred to the testimony of PW-14 Dr. Dilipbhai Trivedi at Exh. 86, who had first examined her and submitted that this witness has examined the victim and has referred her for further treatment stating that it was not his subject. However, learned APP Shri H.L. Jani emphasized that after the test and the initial examination, when there was a positive report from his examination about the pregnancy, the charges are established. Learned APP Shri Jani submitted that he referred her to the Gynecologist for Sonography and therefore it cannot be said that there is no evidence with regard to the pregnancy and therefore the charges are misconceived. He submitted that the charges are clearly established. 14. Learned APP Shri Jani referred to the judgment of the Hon'ble Apex Court reported in (2003) 11 SCC 126 in case of State of M.P. v. Suresh Kaushal and another and (2011) 11 SCC 301 in case of Sunita Kumari Kashyap v. State of Bihar and Another. 15. Learned APP Shri H.L. Jani also referred to the provisions of Section 179 with regard to the jurisdiction and submitted that the issue regarding jurisdiction could have been raised initially at the time of trial, which is not permissible now to be raised. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2012) 2 SCC 273 in case of Onkar and Another v. State of Uttar Pradesh. 16. In rejoinder, learned Advocate Shri Bukhari again referred to the testimony of the victim PW-3 at Exh. 61 He also emphasized that the victim has stated about the pill which was administered to her, but there is no investigation. He further submitted that she has not stated in her complaint about the forcible administration of such medicine. 16. In rejoinder, learned Advocate Shri Bukhari again referred to the testimony of the victim PW-3 at Exh. 61 He also emphasized that the victim has stated about the pill which was administered to her, but there is no investigation. He further submitted that she has not stated in her complaint about the forcible administration of such medicine. Learned Advocate Shri Bukhari further submitted that there are many omissions, and in fact, in her testimony, she has improvised. Learned Advocate Shri Bukhari submitted that the testimony of Dr. Dilipbhai Trivedi PW-14 at Exh. 86 has not confirmed about the pregnancy as she has clearly stated that she had only gone for check-up and then he had referred her to the Gynecologist and therefore the pregnancy cannot be said to have been confirmed. Learned Advocate Shri Bukhari referred to the testimony of the I.O. PW-18 at Exh. 93 and submitted that the charge qua Appellant No. 2/Original Accused No. 2 (mother-in-law) with regard to forcible administering the medicine are not established and therefore she may be acquitted. Learned Advocate Shri Bukhari further submitted that so far as the charges qua the offence under Section 376 IPC are concerned are only against Original Accused No. 3 and the Appellant No. 1/Original Accused No. 1 (husband) is not involved. He submitted that in fact as stated by PW-16 in his testimony at Exh. 89, the victim came in contact with Appellant No. 1/Original Accused No. 1 voluntarily and had gone with Original Accused No. 3. He emphasized that it is only with a view to get money, the false complaint is filed and it is a case of false implication. Learned Advocate Shri Bukhari therefore submitted that the present Appeal may be allowed. 17. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration. 18. As it transpires from the background of the facts reflected from the charge, the present Appellants, who are the husband and the mother-in-law respectively of the victim, are said to have caused harassment to her, and in fact, the Appellant No. 1/Original Accused No. 2 (mother-in-law) is said to have forcibly administered the medicine for abortion or termination of pregnancy. As it transpires from the background of the facts reflected from the charge, the present Appellants, who are the husband and the mother-in-law respectively of the victim, are said to have caused harassment to her, and in fact, the Appellant No. 1/Original Accused No. 2 (mother-in-law) is said to have forcibly administered the medicine for abortion or termination of pregnancy. Further, thereafter, they have been said to have sold the victim as narrated in detail in the complaint as well as the further application for the offence under Section 376 IPC at Exh. 67. Moreover, the Appellant No. 1/Original Accused No. 1, who is the husband of the victim, is said to have left her deliberately with Original Accused No. 3 at his house in the village and thereafter the offence of rape was committed by Original Accused No. 3 as narrated in detail and considered by the court below. 19. However, for the purpose of the charges qua the offence and conviction of Appellant No. 1/Original Accused No. 1 and Appellant No. 2/Original Accused No. 2, the first aspect is the termination of the pregnancy by forcibly administering the medicine. The submission made by learned Advocate Shri Bukhari that there is no evidence that she was pregnant and in fact he has tried to emphasize on the testimony of Dr. Dilipbhai Trivedi PW-14 at Exh. 86 referring to his cross-examination that he has stated that the laboratory report is important for the purpose of verification about the pregnancy of a woman. Learned Advocate Shri Bukhari has further stated that the two women who had come to him have not returned to him after the laboratory report. Learned Advocate Shri Bukhari emphasized that this witness has stated that if the laboratory report regarding the pregnancy is produced, then only he can specifically and clearly opine about the pregnancy and he cannot say whether the woman was pregnant or not. Though this aspect has been much emphasized by learned Advocate Shri Bukhari, it is well accepted that the evidence has to be read as a whole. The testimony of this witness Dr. Dilipbhai Trivedi PW-14 at Exh. 86 in examination-in-chief has clearly stated that the urine test could be made to prima facie ascertain about the pregnancy. Though this aspect has been much emphasized by learned Advocate Shri Bukhari, it is well accepted that the evidence has to be read as a whole. The testimony of this witness Dr. Dilipbhai Trivedi PW-14 at Exh. 86 in examination-in-chief has clearly stated that the urine test could be made to prima facie ascertain about the pregnancy. He has specifically sated that he has carried out this test which was positive, and therefore, as the victim was pregnant, he referred her to the other Doctor. What he has stated was that he could not say specifically about the exact period of pregnancy as it can be decided after Sonography by the Gynecologist. Therefore, the submission made by learned Advocate Shri Bukhari with much emphasis on this aspect cannot be accepted. 20. Again, the testimony of the victim PW-3 at Exh. 61 is required to be appreciated with reference to her background, the circumstances which have been narrated, and the explanation which she had given. A close scrutiny of her testimony at Exh. 61 clearly suggest that her testimony is natural and truthful. She has stated about the forcible administration of the medicine and thereafter the husband taking her to Surat, but in fact they had gone to Jetpur. It is required to be stated that she had complained about her condition to both the accused and they have asked her to keep quite and thereafter she was taken by the Appellant No. 1-Original Accused No. 1 (husband) and ultimately the husband had left her at the house of the Accused No. 3. She has also stated as to how, in spite of her insistence and request to the Appellant No. 1/Original Accused No. 1 (husband), he left her at the mercy of Original Accused No. 3, when the offence of rape was committed on her particularly with reference to the further details and as to how she had initially tried to resist and thereafter as to how she was made to confine in the room without clothes. Further, she has stated that she had raised the shouts but no one had turned up immediately. These are the factors, which have been further stated by her that as to how the Accused No. 3 is said to have stated that she was sold by Appellant No. 1/Original Accused No. 1 to Accused No. 3 for Rs. Further, she has stated that she had raised the shouts but no one had turned up immediately. These are the factors, which have been further stated by her that as to how the Accused No. 3 is said to have stated that she was sold by Appellant No. 1/Original Accused No. 1 to Accused No. 3 for Rs. 50,000/- and then she reached to Rajkot and then to Jetpur. The entire sequence of events and the situation or the circumstances in which she was placed, has a sufficient corroboration. In fact her testimony is corroborated by the other evidence. 21. The testimony of Dr. Shetalben Prajapati PW-19 at Exh. 97, who had also examined the victim and had recorded the history while giving the medical certificate at Exh. 98 speaks for itself. The victim is said to have stated the same thing even while giving the history about the Appellant No. 1/Original Accused No. 1 - husband leaving her at the mercy of the Original Accused No. 3, who is said to have committed rape on her and the Appellant No. 1 - Original Accused No. 1 (husband) had sold her for Rs. 50,000/-. The father of the victim Ambabhai PW-15 in his testimony at Exh. 88 even though had turned hostile as admitted in the cross-examination about the fact that he was called by the victim and there upon he had gone to the victim. Further, the Samjuti Karar or the writing between the victim and the Appellant No. 1/Original Accused No. 1 at Exh. 65 and the Affidavit at Exh. 66 corroborates the testimony of the victim. It is required to be mentioned that though these documents have been executed and accepted on record, there is no cross-examination on this aspect by the Accused persons. The testimony of Dr. Kaushikbhai Dholaria PW-20 at Exh. 100 and the certificate at Exh. 102 as well as the case papers at Exh. 106 corroborates about the version stated by the victim. 22. Though the submissions have been made by learned Advocate Shri M.A. Bukhari for the Appellants, referring to the medical evidence particularly the history and the medical certificate at Exh. 102 as well as the testimony of Dr. Sanjaykumar Sinha PW-21 at Exh. 107 that there are no marks of injuries and it was the victim who had relation with Original Accused No. 3, cannot be believed. 102 as well as the testimony of Dr. Sanjaykumar Sinha PW-21 at Exh. 107 that there are no marks of injuries and it was the victim who had relation with Original Accused No. 3, cannot be believed. Her FIR at Exh. 92 is corroborated by her testimony with regard to the sequence of events and the role by the Appellant Nos. 1 and 2/Original Accused Nos. 1 and 2, and as the Original Accused No. 3 is not the Appellant herein, it may not require further elaboration with regard to the offence under Section 376 committed by him. Moreover, though the charge is also for the offence under Section 120B IPC as the conviction is not recorded and as there is no Appeal by the State, we may rest the matter as it is. Therefore, it is required to be examined with regard to the present Appeal filed by the Appellants/Original Accused Nos. 1 and 2 challenging their convictions. 23. Learned Advocate Shri Bukhari submitted that there is a discrepancy in the evidence and the benefit of doubt should have gone to the Appellants. Learned Advocate Shri Bukhari referred to the complaint as well as the FIR at Exh. 92 and also referred to the testimony of the victim PW-3 at Exh. 61 and submitted that there are many omissions and improvisations in the testimony of the victim which are not to be found in the original complaint/FIR. Learned Advocate Shri Bukhari further submitted that it was dictated by one Dinesh who is not examined, and therefore, it requires a corroboration qua the testimony of the victim. Learned Advocate Shri Bukhari submitted that as there is no such corroboration or rather there is no evidence that the victim was sold by the Appellant No. 1/Original Accused No. 1 (husband) for Rs. 50,000/- to the Original Accused No. 3, the conviction could not have been recorded. 24. Similarly, the submission which has been made by learned Advocate Shri Bukhari referring to the role of Appellant No. 2 - Original Accused No. 2 (mother-in-law) that she is said to have administered the medicine for termination of pregnancy, there is no evidence, and therefore, as there is no evidence collected, the conviction is not maintainable. 24. Similarly, the submission which has been made by learned Advocate Shri Bukhari referring to the role of Appellant No. 2 - Original Accused No. 2 (mother-in-law) that she is said to have administered the medicine for termination of pregnancy, there is no evidence, and therefore, as there is no evidence collected, the conviction is not maintainable. The submission made by learned Advocate Shri Bukhari requires closer scrutiny as it cannot be said that there is no evidence that the victim was sold by Appellant No. 1 - Original Accused No. 1 (husband) to Original Accused No. 3, as her version as stated in her testimony at Exh. 61, is fully corroborated and she has also stated even while stating the history before the Doctor, who is an independent witness. There is no explanation offered on this aspect, and therefore, it cannot be said that there is no evidence for the sale of the victim by the Appellant No. 1/Original Accused No. 1 (husband). Further, the administration of medicine has to be considered in background of the fact that as stated by Dr. Dilipbhai Trivedi PW-14 in his testimony at Exh. 86, the victim was pregnant, which was found prima facie on the basis of the test, and admittedly, she has stated about the harassment and beating her, leading to the abortion. 25. One more aspect, which is required to be considered is Section 120B IPC with regard to the charge for the conspiracy. It is well settled that it has to be gathered from the totality of the facts and circumstances and the surrounding circumstances. The submission made by learned Advocate Shri Bukhari that there is no evidence qua Appellant No. 2/Original Accused No. 2 (mother-in-law) is also misconceived. 26. Further, the submission made by learned Advocate Shri Bukhari referring to the aspect of jurisdiction contending that information in cognizable cases is required to be registered as provided under Section 154 and much emphasizing on the aspect of jurisdiction is also misconceived. 27. As rightly contended, even if there was an issue with regard to the jurisdiction, it could have been raised at the earliest point of time before the trial proceeded and it is too late in the light of the day now to come out with any such contention. 27. As rightly contended, even if there was an issue with regard to the jurisdiction, it could have been raised at the earliest point of time before the trial proceeded and it is too late in the light of the day now to come out with any such contention. Again, for that purpose, reference could be made to Chapter XIII which provide Jurisdiction of the Criminal Courts in Inquiries and Trials. The provisions of Section 177provide: "177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed." Thus, it has to be where the office is committed. The provisions of Section 178 provide: "178. Place of inquiry or trial. - (a) When it is uncertain in which of several local areas an offence was committed" Section 178(d) clearly provide: "(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas." 28. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (2011) 11 SCC 301 in case of Sunita Kumari Kashyap v. State of Bihar and Another (supra) referring to the provisions of Sections 177, 178 and 179 of Cr.P.C. It has been clearly observed referring to Section 179 of the Cr.P.C: "However, when it is uncertain in which of several local areas an offence was committed or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local area and takes place in different local areas as per Section 178, the court having jurisdiction over any of such local areas is competent to inquire into and try the offence." Therefore, the submission made by learned Advocate regarding the jurisdiction cannot be readily accepted. 29. Moreover, the statement made in the rejoinder referring to the testimony of the witnesses, including the testimony of Dr. Dilipbhai Trivedi PW-14 at Exh. 86 and the other evidence that the investigation is not fair and it is poor, and therefore, the benefit should have gone to the Appellants, is misconceived. 29. Moreover, the statement made in the rejoinder referring to the testimony of the witnesses, including the testimony of Dr. Dilipbhai Trivedi PW-14 at Exh. 86 and the other evidence that the investigation is not fair and it is poor, and therefore, the benefit should have gone to the Appellants, is misconceived. It is well settled that if it does not cause any prejudice and if the investigation has been made having some lapse, it may not be a ground for the benefit to the Accused persons inasmuch as the right of the Accused persons and the right of the society as a whole is required to be considered. In other words, if it is not shown that any prejudice has been caused to the Accused persons, the little amount of flexibility has to be allowed and there is nothing by which it could be said that the prejudice is caused to the Appellants for which they could be given the benefit of doubt. 30. At the cost of repetition, it is required to be stated that the testimony of the victim corroborated by other evidence hardly leaves any doubt for any such apprehension about the benefit of doubt or unfair investigation which could be said to have caused any prejudice. In fact the scanning of the material and evidence as discussed herein above and as recorded in the judgment of the court below, does not call for any interference and the conviction as recorded is just and proper. 31. The present Appeal therefore deserves to be dismissed and accordingly stands dismissed.