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Gujarat High Court · body

2016 DIGILAW 93 (GUJ)

Rameshbhai Chhanabhai Solanki v. State of Gujarat

2016-01-13

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. Present appeal is directed against the impugned judgment and order rendered in Sessions Case No. 43 of 2005 by the learned Additional Sessions Judge, Surendranagar dated 07.12.2006 recording conviction of the appellant-accused for the offence punishable under Section 363, 366 and 376 of the IPC and fine as stated in detail in the impugned judgment and order. 2. The facts of the case briefly summarized are as follow: As it transpires from the material and evidence on the record that on 10.06.2005, the minor daughter of the complainant was abducted by the appellant-accused and has promised to marry. Thereby, he has committed offence of rape. The complaint came to be registered being FIR C.R. No. I-109/2005 with the Limbdi Police Station for the offence under Section 363, 366and subsequently added Section 376 of the IPC. 3. After investigation was over, the charge-sheet was filed and as the offence are triable by the court of Sessions, the case was committed to the Sessions Court, Surendranagar. Thereafter, the learned Additional Sessions Judge, Surendranagar framed the charges for the offences and proceeded with the trial. 4. In order to bring home the charges levelled against the appellant-original accused, the prosecution examined the witnesses including the complainant and medical officers and also produced documentary evidence, which shall be referred to in the judgment hereinafter. 5. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Surendranagar recorded further statement of the accused under Section 313 of Code of Criminal Procedure. 6. After hearing learned APP as well as learned Advocate for the accused, the learned Additional Sessions Judge, Surendranagar recorded the conviction of the appellant-accused and sentence as stated herein above. 7. It is this judgment and order which has been assailed on the grounds stated in detail in the memo. of appeal, inter alia, that the learned Additional Sessions Judge, Surendrangar has failed to appreciate the material and evidence on the record. 8. Heard learned Advocate Shri Ashish Dagli for the appellant-accused and learned APP Shri H.L. Jani for the Respondent-State. 9. Learned Advocate Shri Ashish Dagli for the appellant-accused has referred to the testimony of the mother of the victim at Exh. 26 and testimony of the father of the victim at Exh. 27, who lodged the complaint. He also referred to the complaint at Exh. 28. 9. Learned Advocate Shri Ashish Dagli for the appellant-accused has referred to the testimony of the mother of the victim at Exh. 26 and testimony of the father of the victim at Exh. 27, who lodged the complaint. He also referred to the complaint at Exh. 28. He referred to the testimony of the victim P.W. No. 10 at Exh. 31 and submitted that it is the case of false implication. Learned Advocate Shri Dagli pointedly referred to the testimony of victim P.W. No. 10 at Exh. 31 and submitted that as stated therein that she was going for the work, where the accused was also working and in fact the accused had suggested the victim to runaway. Learned Advocate Shri Dagli submitted that as stated by the victim in her testimony that she had accompanied the accused and thereafter, they had gone to the house of the uncle of the accused, where they stayed. Learned Advocate Shri Dagli submitted that this itself will suggest that she has voluntarily accompanied the accused. The fact that the they had stayed at the house of uncle would indicate about the consent. The victim could have complained to the uncle and aunt of the accused, if she was not inclined. Further, when the parents of the victim had visited the house of the uncle, she could have raised alarm, but she did not call the parents. He also referred to the fact that they had gone to the market area and articles were purchased, which again suggests that she had accompanied voluntarily. Learned Advocate Shri Dagli pointedly referred to this aspect from the testimony of the victim. He further referred to the testimony of the victim wherein, suggestion has been put to her that when the parents visited the house of uncle and aunt of the accused, the accused wanted to handover the victim to the parents, but the victim had not approved. Learned Advocate Shri Dagli also referred to the testimony of the Dr. Upadhyaya P.W. No. 11 at Exh. 33 and submitted that there were no marks of injuries. He also emphasized the cross-examination, wherein doctor is said to have stated that from appearance, the victim appeared to be 17 years of age. Learned Advocate Shri Dagli referred to the injury certificate at Exh. 34 and submitted that there are no marks of any injuries. 33 and submitted that there were no marks of injuries. He also emphasized the cross-examination, wherein doctor is said to have stated that from appearance, the victim appeared to be 17 years of age. Learned Advocate Shri Dagli referred to the injury certificate at Exh. 34 and submitted that there are no marks of any injuries. The name of the accuses is also not recorded while giving the history before the doctor. He pointedly referred to the medical evidence. He also referred to the testimony of the Dr. Gosai P.W. No. 12 at Exh. 42, who is a gynecologist. Learned Advocate Shri Dagli referred to Para Nos. 3 and 4 of testimony of this witness P.W. No. 12 at Exh. 42 and submitted that the victim was used to intercourse and the doctor has stated that there were no marks of any injury suggesting any forceful intercourse. He pointedly referred to the certificate at Exh. 43 and submitted that in this certificate while recording history, the name of the accused is also stated that he had abducted her but considering the totality of the matter, it is not believable. Therefore, learned Advocate Shri Dagli submitted that she had voluntarily accompanied the accused. 10. Learned Advocate Shri Dagli submitted that for the purpose of consent aspect, the age would be relevant. He submitted that the date of birth of the victim is 22.12.1988 and the incident is of 07.06.2005, meaning thereby, she was above 17 years of age, which is confirming the opinion of the doctor as stated above. He also referred to the testimony of P.W. No. 13 at Exh. 46 and P.W. No. 14 at Exh. 47. He also referred to the testimony of Investigating Officer P.W. No. 17 at Exh. 52. Learned Advocate Shri Dagli therefore submitted that the judgment and order recording conviction is erroneous. He also referred to the judgment of the Hon'ble Apex Court reported in 2015 (7) SCC 272 in the case of Mohd. Ali Alias Guddu Vs. State of Uttar Pradesh. 11. Learned APP Shri H.L. Jani for the Respondent-State has referred to the testimony of P.W. Nos. 8 mother of the victim at Exh. 26 and P.W. No. 9 father of the victim at Exh. 27. He referred to the testimony of the victim P.W. No. 10 at Exh. Ali Alias Guddu Vs. State of Uttar Pradesh. 11. Learned APP Shri H.L. Jani for the Respondent-State has referred to the testimony of P.W. Nos. 8 mother of the victim at Exh. 26 and P.W. No. 9 father of the victim at Exh. 27. He referred to the testimony of the victim P.W. No. 10 at Exh. 31 and submitted that though the consent is stated, in fact there is no consent inasmuch as she has specifically stated before the doctor while recording the history, shown in the medical certificates at Exh. 34 and Exh. 43. Learned APP Shri Jani submitted that consent cannot be inferred and she has stated in her testimony at Exh. 31 as to what had transpired. He submitted that she was threatened that she may be killed, if she does not succumb to the pressure. Learned APP Shri Jani submitted that the absence of marks of injury would not suggest the consent necessarily. He submitted that irrespective of whether she is major of minor, once the consent is not there, the offence of rape is committed. Learned APP Shri Jani submitted that judgment and order recording conviction is just and proper. 12. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration and whether the impugned judgment and order recording conviction calls for any interference or not. 13. As it transpires from the rival submissions and material and evidence on the record, the testimony of the victim P.W. No. 10 at Exh. 31 requires closer scrutiny. As stated in her testimony about the fact that she was abducted but the fact remains that they had traveled in bus from one place to another. They had gone to the uncle's house of the accused, where they have stayed. This aspect is also referred in the cross-examination that she could have raised alarm and she has stated that in order to avoid any people gathering or the scene being created she had not raised alarm. She has stated that she had desired to raise alarm and gather people at the bus-station, Ananadpur, but she has not done so, nor she had asked any anyone's help in the bus. She has stated that she was confused and she could not asked any passenger traveling in the bus to rescue her. She has stated that she had desired to raise alarm and gather people at the bus-station, Ananadpur, but she has not done so, nor she had asked any anyone's help in the bus. She has stated that she was confused and she could not asked any passenger traveling in the bus to rescue her. Further, when the police had come in search of the victim at the place of uncle, she could have raised alarm. It has not been done so and the explanation offered that if she had raised alarm, they may kill her parents and therefore, she has not made alarm. In fact specific suggestion was also made to her that the accused himself was inclined to handover the victim to her parents and she declined, which requires closer scrutiny. Though, this suggestion has been denied by the victim, the totality of the facts and circumstances has to be considered in order to appreciate such evidence. Further, the testimony of two doctors, particularly Dr. Gosai P.W. No. 12 at Exh. 42, who is a gynecologist has clearly stated that there was no marks of injury found on her private parts or the body and she was habituated to the intercourse as referred in the medical certificate at Exh. 43. 14. It is in these circumstances, the submissions made by learned Advocate Shri Dagli about the consent are required to be considered. Again, for that purpose, the aspect which would be relevant as stated in the testimony of Tatali, P.W. No. 13 at Exh. 46 that the of birth date of victim is 22.12.1988 as recorded in the register, which he had produced. Therefore, the birth certificate, which has been produced at Exh. 47 establishes about the date of birth as 22.12.1988, meaning thereby, she was aged about 17 years and six months. This incident had taken place before the amendment was made in the provisions of Section 375 and 376 of the IPC in the year 2013. Therefore, at the relevant time while referring to the aspect of consent for the purpose of rape, the age which had been provided is 16 years of age. Therefore, as she was not minor and as it transpires from the medical evidence that she was fully grown and would also have sense of discretion, it certainly raises doubt about the manner in which the incident is said to have occurred. Therefore, as she was not minor and as it transpires from the medical evidence that she was fully grown and would also have sense of discretion, it certainly raises doubt about the manner in which the incident is said to have occurred. Therefore, the testimony of the victim raises doubt with regard to the manner in which the incident occurred, which give rise to the doubt about her own consent. 15. Again, it is well accepted that the consent has to be free and voluntarily consent. Therefore, in order to ascertain whether the consent was legal or not, it has to be ascertained that it was not under any threat, coercion or pressure. The Hon'ble Apex Court has considered this aspect in a judgment reported in (2003) 4 SCC 46 in the case of Uday vs. State of Karnataka. Further, in Jowitt's Dictionary of English Law has defined consent in the following words: "Consent supposes three thins-a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind." Thus, it has to be considered with reference to the fact and material and evidence on record in each case to ascertain as to whether it was free consent or not. 16. It is in this background, the Court is required to scan and re-appreciate the evidence. The Hon'ble Apex Court has time and again made observations in the judicial pronouncements obliging the High Court as First Appellate Court to scrutinize the evidence and to verify the conclusion arrived at by the Court below. The Hon'ble Apex Court in a judgment reported in (2015) 7 SCC 272 in the case of Mohd. Ali Alias Guddu Vs. State of Uttar Pradesh has made the observations while dealing with the similar contentions with regard to the aspect of the rape for offences under Section 376 and the testimony of the victim. The Hon'ble Apex Court in a judgment reported in (2015) 7 SCC 272 in the case of Mohd. Ali Alias Guddu Vs. State of Uttar Pradesh has made the observations while dealing with the similar contentions with regard to the aspect of the rape for offences under Section 376 and the testimony of the victim. It has been observed that "the law permits the testimony of the victim (prosecutrix) can be accepted without any corroboration in material particular, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not irreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony." The Court is required to consider the material and evidence on record. 17. The Hon'ble Apex Court in a judgment reported in (2013) 6 SCC 798 in the case of Majjal Vs. State of Haryana has made observations referring to the earlier judgments regarding approach of the Court. The Hon'ble Apex Court has referred to the earlier judgment reported in (2005) 6 SCC 211 in the case of Ganga Kumar Srivastava Vs. State of Bihar, and has also referred to the judgment reported in (1996) 4 SCC 720 in the case of Bani Singh V. State of U.P. The Hon'ble Apex Court in a judgment reported in (2013) 6 SCC 798 in the case of Majjal Vs. State of Haryana, has observed that "It was necessary for the high Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trail court's view could be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treaties. The High Court's concurrence with the trail court's view could be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treaties. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter." 18. The same view has also been reiterated by the Hon'ble Apex Court in a judgment reported in (2000) 1 SCC 621 in the case of Padam Singh Vs. State of U.P., wherein it has been observed that, "It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can proved beyond reasonable doubt on the said evidence. The credibility inference from proved and admitted facts. It must be remembered that the appellate, court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court." 19. Therefore, as observed herein above, on scrutiny of the material and evidence on the record particularly, the testimony of victim P.W. No. 10 at Exh. 31 and also the medical evidence, the impugned judgment and order recording conviction of the appellant, cannot be sustained. 20. In the result, present appeal deserves to be allowed and accordingly stands allowed. The impugned judgment and order rendered in Sessions Case No. 43 of 2005 by the learned Additional Sessions Judge, Surendranagar dated 07.12.2006 recording conviction as stated in detail in the impugned judgment and order is quashed and set aside. 21. Bail bond shall stand cancelled. 20. In the result, present appeal deserves to be allowed and accordingly stands allowed. The impugned judgment and order rendered in Sessions Case No. 43 of 2005 by the learned Additional Sessions Judge, Surendranagar dated 07.12.2006 recording conviction as stated in detail in the impugned judgment and order is quashed and set aside. 21. Bail bond shall stand cancelled. However, it is made clear that while quashing and aside the conviction the amount of fine, which was ordered to be paid to the victim does not call for any interference, even though the conviction is set aside on the ground that it has been ordered to be paid to the victim by way of compensation. Therefore, in the peculiar facts and circumstances, the amount is not ordered to be refunded to the appellant-accused.