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2016 DIGILAW 821 (GUJ)

Kanubhai Chandubhai Bhil v. State of Gujarat

2016-04-13

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present appeal is filed by the appellant-accused under Section 374 of the Code of Criminal Procedure, 1973 against the impugned judgment and order rendered in Sessions Case No. 7/2010 by the 4th Additional Sessions Judge, Vadodara dated 18.01.2014 recording conviction of the appellant-accused for the offence under Section 511 of the Indian Penal Code and imposing sentence as stated in detail in the impugned judgment and order. 2. The fact of the case briefly summarized are as follows:-- 2.1 The victim is said to have gone to answer the call of nature in the afternoon after the lunch and the accused, who is also residing in the same locality, is said to have committed act of rape in the bushes behind the vada. Therefore when the shout was raised, the aunt (mother-in-law) came there and the accused is said to have run away. Thereafter, the complaint came to be filed being C.R. No. I-5/2009 before Nasvadi Police Station for the offence under Section 376 of the Indian Penal Code. 2.2 After the investigation was over, the chargesheet for the alleged offences came to be filed and as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions. 2.3 Thereafter, the Additional Sessions Judge below proceeded with the trial and recorded the evidence of the prosecution witnesses. 2.4 After recording of the evidence of the prosecution witnesses was over, the Court below recorded further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, where the accused is said to have given explanation regarding the false implication and the political vendetta. 2.5 After hearing learned APP as well as learned advocate for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein. 3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal inter alia that the Court below has failed to appreciate the material and evidence including the testimony of the victim as well as Champaben. It has been contended that FIR is dictated by one Ramdash and there are discrepancy in the testimony of the victim as well as eyewitness, Champaben and other witnesses, which raises doubt and, therefore, the judgment and order recording conviction may not be sustained. 4. It has been contended that FIR is dictated by one Ramdash and there are discrepancy in the testimony of the victim as well as eyewitness, Champaben and other witnesses, which raises doubt and, therefore, the judgment and order recording conviction may not be sustained. 4. Heard learned advocate, Shri Praful Bhatt appearing with learned advocate, Shri R.S. Panjwani for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State. 5. Learned advocate, Shri Bhatt referred to the testimony of the victim, PW-1 at Exh. 8 and submitted that she has not supported or corroborated the complaint at Exh. 9 as the complaint refers to the offence under Section 376 of the Indian Penal Code, whereas in her testimony at Exh. 8, she has only stated that when the accused came and led her down, aunt came and the accused ran away. Thus she has not testified and supported the version with regard to the incident in the complaint. Further learned advocate, Shri Bhatt referred to the testimony of PW-1, victim at Exh. 8 and testimony of PW-4, aunt at Exh. 16 and again submitted that there are contradictions in the testimony. He referred to the testimony of PW-4 at Exh. 16 and submitted that she has stated and admitted that the complaint was dictated by one Ramdas, PW-5 at Exh. 17. He pointedly referred to the omissions in the statement recorded by the Police under Section 161 of the Code of Criminal Procedure, 1973 and submitted that thus it is not a complaint given by the victim. He pointedly referred to this cross-examination. Learned advocate, Shri Bhatt has also stated that in the cross-examination, she has admitted that when she reached the place of incident, she had seen somebody running away. Learned advocate, Shri Bhatt has therefore submitted that there is discrepancy otherwise she could have referred to the name of the accused as they are neighbour and she would have known him. Similarly, learned advocate, Shri Bhatt has referred to the medical evidence in the form of the testimony of Dr. Rajpura, PW-8 at Exh. 21. It was submitted that there were no mark of injuries found and as the conviction has not been recorded under Section 376 of the Indian Penal Code, this aspect requires much deliberation. Similarly, learned advocate, Shri Bhatt has referred to the medical evidence in the form of the testimony of Dr. Rajpura, PW-8 at Exh. 21. It was submitted that there were no mark of injuries found and as the conviction has not been recorded under Section 376 of the Indian Penal Code, this aspect requires much deliberation. However, learned advocate, Shri Bhatt submitted that in the cross-examination it has been clearly admitted that in the case papers at Exh. 28, it has not been stated that the history was given by the accused himself. It has also been admitted that the statement of the accused that he had the intercourse with the victim with her consent, is not stated by the accused but it was stated by the Police. Learned advocate, Shri Bhatt, therefore, submitted that the complaint is given by somebody like Ramdas, PW-5 and yadi recording history is also written by the Police, which incorporate such part about the admission. Further he referred to the panchnama of the recovery of the clothes and the scene of offence. Learned advocate, Shri Bhatt submitted that in the panchnama for the recovery of the clothes of the victim at Exh. 13, it has been stated that the clothes are recovered in the Police Station. He submitted that this panchnama is required to be considered in background of the evidence of Champaben, PW-4, wherein she has stated that the clothes were not recovered in her presence and she has further stated that the clothes were recovered by the doctor in the hospital while taking sample. Learned advocate, Shri Bhatt, therefore, submitted that as stated by the witnesses with regard to the political motivation for false implication, may also be considered and, therefore, the impugned judgment and order recording conviction may not be sustained. Learned advocate, Shri Bhatt has pointedly referred to further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 on this aspect and submitted that the conviction may not be sustained and the impugned judgment and order recording conviction may be quashed and set aside. 6. Learned advocate, Shri Bhatt has pointedly referred to further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 on this aspect and submitted that the conviction may not be sustained and the impugned judgment and order recording conviction may be quashed and set aside. 6. Learned advocate, Shri Bhatt has referred to and relied upon the judgment of the Hon'ble High Court of Bombay in case of Bhagwan Charan Mate v. State of Maharashtra, reported in 2006 CrLJ 579 with regard to the appreciation of the evidence of the victim and it has been submitted that in the version of the victim, in absence of the medical evidence on the facts of the case, may not be sufficient and as in that case, enmity was also a reason for false implication, which has been appreciated by the Court. Learned advocate, Shri Bhatt has also referred to the judgment of the Hon'ble Apex Court in case of Bibhishan v. State of Maharashtra, reported in (2007) 2 SCC 390 and submitted that the offence is not held beyond reasonable doubt. He submitted that in this case, even the trial court has not believed the allegations with regard to the offence under Section 376 of the Indian Penal Code and, therefore, the conviction under Section 511 of the Indian Penal Code for attempt is also erroneous. Learned advocate, Shri Bhatt has also referred to the judgment of the Hon'ble Apex Court in case of Abbas Ahmad Choudhary v. State of Assam, reported in (2010) 13 SCC 115 and emphasized the observations made in this judgment. Learned advocate, Shri Bhatt has stated that though the prosecutrix must be given primary consideration at the same time, broad principles that the prosecution has to prove case beyond reasonable doubt, applies equal in case of rape. He therefore submitted that there cannot be any presumption that the prosecutrix would always tell entire story truly. Learned advocate, Shri Bhatt submitted that considering the omissions and improvisation as well as inconsistency, the testimony or evidence of the victim in the present case, does not inspire confidence and same has not been sufficiently corroborated and, therefore, the impugned judgment and order recording conviction may be quashed and set aside. Learned advocate, Shri Bhatt submitted that considering the omissions and improvisation as well as inconsistency, the testimony or evidence of the victim in the present case, does not inspire confidence and same has not been sufficiently corroborated and, therefore, the impugned judgment and order recording conviction may be quashed and set aside. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Narender Kumar v. State (NCT of Delhi), reported in (2012) 7 SCC 171 on the same ground and submitted that the present appeal may be allowed. 7. Learned APP Ms. Punani referred to the papers particularly the testimony of the victim at Exh. 8 and the testimony of Champaben (aunt), PW-4 at Exh. 16 and submitted that there may be some discrepancy but the testimony of the victim with regard to the presence of the accused has to be considered with reference to the yadi as well as the medical evidence, wherein the accused is said to have stated about having intercourse with the consent of the victim, may be considered. She further submitted that the Court below has therefore rightly not recorded the conviction for the offence under Section 376 of the Indian Penal Code on appreciation of evidence but the conviction for the offence under Section 511 of the Indian Penal Code for attempt, may not be disturbed. She submitted that delay in filing the FIR or some discrepancy that Ramdas had lodged complaint after consulting with the husband of the victim, has to be considered in background of the of the rural area, whereas the victim may not be aware and may not be able to explain and, therefore, she would talk to the husband and, thereafter, the husband in turn had conveyed to Ramdas, who is local leader through whom the complaint has been filed. Therefore merely because the local person has intervened, would not make the complaint unreliable. She therefore submitted that the present appeal may be dismissed. 8. In view of these rival submissions and having considered the background of the facts as well as scanning the material and evidence, it emerges that though the charge was for the offence under Section 376 of the Indian Penal Code, the conviction has been recorded for the offence under Section 511 of the Indian Penal Code. The victim in her complaint at Exh. The victim in her complaint at Exh. 9 has stated about the offence that the accused is said to have committed rape on her but in her testimony at Exh. 8, she has not testified on the same line and has only stated that the accused came there and at that time, when her mouth was gagged and she was starting shout, the aunt came there and accused ran away. Thus according to her own version, the offence under Section 376 of the Indian Penal Code is not committed. Again therefore the attempt under Section 511 of the Indian Penal Code is not defined and it has to be considered that an attempt to commit crime has three facet; (1) to commit it; (2) preparation for that; and (3) followed by the act, which would constitute the offence. In other words, preparation, which may be taken by measure for committing the offence but if it has failed, the offence is not committed and it would be an attempt. In the facts of the case, there is no such evidence with regard to the offence of rape and the conviction for the offence for the attempt under Section 511 of the Indian Penal Code would require a closer scrutiny with regard to the version of the victim herself, which has been noted in consistent with her own complaint as stated hereinabove. Moreover, the aunt, who is the eyewitness, in her testimony at Exh. 16 in examination-in-chief, has stated to have stated that when she reached, she saw the accused but in cross-examination, she admitted that she saw somebody running away but does not talk about the accused though she would be knowing him as they are neighbours. 9. On more aspect, which has been emphasized which requires consideration is the medical evidence. The testimony of doctor, PW-8 at Exh. 21 clearly suggests that there was no mark of injuries and as the conviction for the offence under Section 376 of the Indian Penal Code has not been recorded, it does not require a deliberation or elaborate discussion with regard to the injury etc. However as the history which has been stated to have been recorded, it has been clearly stated that yadi at Exh. 25 was received, it had mentioned about the history of consensus intercourse. However as the history which has been stated to have been recorded, it has been clearly stated that yadi at Exh. 25 was received, it had mentioned about the history of consensus intercourse. It has been admitted that the history was written by the Police in yadi at Exh. 25. Further in case paper at Exh. 28, the history is not given by the accused himself stating about the voluntary and consensus intercourse with the victim. It is in this background, the submission made by learned advocate for the appellant deserves consideration on the aspect of discrepancy in the testimony of the witnesses and the prosecution witnesses having failed to establish beyond reasonable doubt. Moreover the witnesses have stated about the political aspects and threats given by the accused, which has also been referred in the further statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973. It is in these circumstances and on overall appreciation of material and evidence, the impugned judgment and order recording conviction cannot be sustained. 10. Therefore on scanning and appreciating the material and evidence on record, the impugned judgment and order recording conviction of the appellant-accused under Section 511 of the Indian Penal Code cannot be sustained and deserves to be quashed and set aside. 11. Therefore, the present appeal stands allowed. The impugned judgment and order recording conviction of the appellant-accused for the offence under Section 511 of the Indian Penal Code is hereby quashed and set aside. The appellant is on bail and, hence, his bail bond stands cancelled. Therefore, the appellant-accused is ordered to be set at liberty forthwith, if not required in any other offence.