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2017 DIGILAW 38 (GUJ)

State of Gujarat v. Traya Haji Allarakhiya

2017-01-11

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

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JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the State challenging the judgment of the acquittal rendered by the learned Additional Sessions Judge, Kutch, dated 30.9.1993 in Sessions Case No. 52/1989. 2. Briefly stated, the prosecution version was that on the date of the incident i.e. 14.4.1998, the complainant (we may refer to her as "the first victim") and her friend and neighbour (we may refer to her as "the second victim") were, at about 3 O' clock in the afternoon, walking in the street of their village, when the two accused Traya Haji and Traya Adam came there from the opposite direction. One of them wielded a knife. They both caught the girls and dragged them to a nearby field where in a small house, they both raped the girls. According to the prosecution, both the girls were below 16 years of age at the time of the incident. Charge exh.1 was therefore, framed against both the accused for having committed offences punishable under sections 376, 366, 506(2) read with section 34 of the Indian Penal Code. 3. Dr. Khimjibhai Dudabhai Makwana, PW-1, exh.7, was the medical officer at Rapar Community health centre who had examined both the victims and the accused. He found both the accused physically matured. He collected samples from the body of both the accused. Regarding the first victim, the doctor had noticed scratch marks on her breasts and on her private parts. Her hymen was ruptured. Regarding the second victim, the doctor had noticed similar scratch marks on her body as well as ruptured hymen. For both the victims, he had opined that only a Civil Surgeon can assess their age. In the cross examination, he admitted that he had not recorded that the hymen had a recent rupture and also agreed that had it been the case, he would have so noted. There was no swelling on the private parts, nor had the girls complained about pain there. Two fingers could easily be inserted in the vagina. He had not noticed any scratches or injuries on the buttocks or the back side of the girls which could be caused by dragging them. 4. Laljibhai Narotambhai Patel, PW-5, exh.30, was the principal of the Primary school at the village. He had produced School Leaving Certificates of the two girls at exh.31 and 32. He had not noticed any scratches or injuries on the buttocks or the back side of the girls which could be caused by dragging them. 4. Laljibhai Narotambhai Patel, PW-5, exh.30, was the principal of the Primary school at the village. He had produced School Leaving Certificates of the two girls at exh.31 and 32. As per these certificates, the date of birth of the first victim was 1.6.1973 and that of the second victim was 1.6.1974. The first victim was shown to have studied upto third standard and the second victim upto fourth standard. In the cross examination, he stated that such certificates were issued on the basis of general register maintained at the school and he was in possession of such register. While admitting a student in the school, the guardian has to fill up a form showing the name, age, etc. of the student. Such forms of the victims were not collected by the police. When the girls were admitted in the school, he was not serving there. He therefore, did not have personal knowledge about these details. The village has a Gram Panchayat where Death and Birth register is maintained. While admitting a student, the school will ordinarily ask for the proof of date of birth. He however, denied that if the guardian gives an approximate age of the student, the school management would indicate 1st June as his or her date of birth. 5. The first victim, PW-6, exh.33, was also the first informant. She deposed that the second victim lives next to her house. They were both going to the field of Ganesh Ramji to collect lemons. At that time, the accused met them on the road to the field of Khanubhai at about 3 to 3:30 in the afternoon. Accused No. 1 held her hand, accused No. 2 held the hand of the other victim and they had taken them away by showing a knife to the house which was situated in the field of Khanubhai. They threatened them and disrobed them and thereafter, raped them. Accused No. 1 had raped her for about one and half hour. In the other room, accused No. 2 had raped her friend. After that they had run away from the place. When they were going home, the second victim's uncle Dangar crossed them and asked them why they were crying. Accused No. 1 had raped her for about one and half hour. In the other room, accused No. 2 had raped her friend. After that they had run away from the place. When they were going home, the second victim's uncle Dangar crossed them and asked them why they were crying. They had told him about the incident. After that Bharvad Arjan, Sama Patel and Hirji Patel had also come there. They had also inquired about the incident. When she reached home, her father was not there. Her friend had gone to her own house. Later when the father came home, he took them to Rapar police station where her FIR was lodged which was produced at exh.34. In the cross examination, she was first questioned on the question of the two girls going to collect lemons. She stated that they had not taken any basket or plastic bag or any other bag for collecting the lemons. She was also questioned on the location of the house where allegedly they were raped. She agreed that near the field of Khanubhai, there were many houses. The road to these fields passed from that of Khanubhai's field. The date of the incident was Ramnavami festival. She however, denied that on that day, a fun-fair was organised in their village. The accused had met them from the opposite direction. They were not following them. They were unaware that the girls were going to collect the lemons on that day. After catching them from their arms, they were dragged. They had fallen down and they were in that condition dragged right upto the house. They had both shouted and had started crying. The house had two rooms. In the house also, they had continued to shout and cry. They had tried to get free but had not succeeded. The incident of rape continued for nearly one and half hour. She admitted that the Khanubhai's field was under active cultivation. It had a factory also. Next to the field also, there were other factories. Normally, at such factories, there are many people present. She however, clarified that on the date of the incident, nobody was present. Upon being dragged on the ground, both her clothes and body had got dusty. 6. The second victim, PW-7, exh.35, gave somewhat similar version. It had a factory also. Next to the field also, there were other factories. Normally, at such factories, there are many people present. She however, clarified that on the date of the incident, nobody was present. Upon being dragged on the ground, both her clothes and body had got dusty. 6. The second victim, PW-7, exh.35, gave somewhat similar version. At about 3 O'clock in the afternoon, she and other victim had gone to collect lemons. When they reached the field of Ganesh Ramji, they met the accused coming from the opposite direction. Accused No. 1 showed them a knife and dragged them to the field of Khanubhai where at the house they were raped by accused in two separate rooms. After one and half hour, they came out and on the way, they met her uncle Dangar to whom they narrated the incident. Soon after Sama Patel, Arjan Bharvad and Hirji Patel also came there. In the cross examination, she stated that she had seen the accused before but did not know them. From Samabhai's field, it would take about 10 minutes to reach Khanubhai's field. They were dragged all the way. They had shouted. The road also led to may other fields. They were dragged right upto the field of Khanubhai. Her uncle Dangar met them at the border of field of Khanubhai. She agreed that there were factories in the village, one of them close to the field of Khanubhai. 7. The prosecution had also examined Dangar Rupgar PW-8 exh.36 uncle of the second victim, Arjan Naja PW-9 exh.37 and Bhavsangji Prabhuja PW-10 exh.39 to support the version of the victim girls that these people had shortly after the incident met them on the road. 8. Raydhanbhai Becharbhai Dangar, PW-12, exh.44, was the investigating officer. He was PSI Rapar police station at the relevant time. He deposed that in the FIR, name of the second accused was given as Vali Mohammad. However, his real name was Adam. Therefore, the complainant's further statement was recorded. In the cross examination, he stated that he was aware that the school maintained general register on the basis of which the School Leaving Certificates are issued. He had not recovered such register. He had also not collected the forms required to be filled for admission of a student in the school. Therefore, the complainant's further statement was recorded. In the cross examination, he stated that he was aware that the school maintained general register on the basis of which the School Leaving Certificates are issued. He had not recovered such register. He had also not collected the forms required to be filled for admission of a student in the school. There was no record of their birth in the register maintained by the Talati. He had not recorded the statement of Khanubhai or any other persons from the nearby fields. Though the doctor at Rapar hospital had recommended sending the girls for ossification test by the Civil Surgeon for age verification, he had not sent them for such examination. Though he denied that the School leaving Certificates were not genuine, agreed that in the FIR, the complainant had stated that she was illiterate and she had put a thumb impression on such FIR. 9. On the basis of such evidence on record, learned Sessions Judge found insufficient evidence to convict either of the two accused. On the question of age, he found the School Leaving Certificates unreliable to hold that either of the girls were below 16 years of age. Learned Judge pointed out that the supporting materials such as the form for admitting a student or the general register was not recovered by the police. Despite medical opinion, the girls were not sent for ossification test. Inter-alia on such grounds, the learned Judge held that the prosecution failed to establish that the victims were below 16 years of age. 10. Regarding the incident of sexual intercourse, the learned Judge did not reject the theory outright. Nevertheless, on the basis of multiple factors came to the conclusion that such intercourse was consensus. The contradictions in the depositions of the girls, the improbability of the incident happening in the manner in which it was alleged and the conduct of the girls as well as the witnesses who met immediately after the incident convinced the learned Judge that the prosecution had failed to establish the factum of forcible sexual intercourse. 11. Learned APP Ms. Chetna Shah submitted that the trial Court committed a serious error in acquitting both the accused. There were reliable evidence to suggest that both the girls were below 16 years of age. The question of their consent therefore, was irrelevant. 11. Learned APP Ms. Chetna Shah submitted that the trial Court committed a serious error in acquitting both the accused. There were reliable evidence to suggest that both the girls were below 16 years of age. The question of their consent therefore, was irrelevant. In any case, there was ample other evidence of forcible sexual intercourse. In support of her submissions, she relied on the following decisions : "1. Vijay alias Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC 191 . 2. Mayur Panabhai Shah Vs. State of Gujarat reported in 1982 Cri.L.J. 1972." 12. On the other hand, learned advocate Shri Jay Thakker for the accused opposed the appeal contending that the trial Court has given cogent reasons. Being appeal against acquittal, this Court would not interfere even if two views are otherwise possible. Regarding the proof of age, he submitted that the prosecution had not brought reliable evidence to establish that the girls were below 16 years of age. The consent of the girls was therefore, relevant. In support of his contentions, counsel relied on the following decisions : "1. Sunil Vs. State of Haryana reported in 2010(1) GLH 346. 2. Judgment dated 11.1.2012 in Criminal Appeal No. 15/1990 in case of State of Gujarat v. Osman I. Sangar." 13. In this background, we may appreciate the evidence on record. Regarding the age of the victims, as noted, the prosecution had produced their School Leaving Certificates at exh.32 and 31 respectively. As per the School Leaving Certificate exh.32, the first victim was born on 1.6.1973. As per the certificate exh.31, the second victim was born on 1.6.1974. Both these certificates were given by the principal of the same school. Principal Laljibhai Narotambhai Patel, PW-5, agreed that he was not working at the school when the girls were admitted. The parents or the guardian admitting the student would have to fill the form giving the details of name, age, etc. Such forms are maintained by the school. The school also maintains proper register. Despite this, admittedly the police had not recovered any of these documents. Had these further documents be recovered, date of birth mentioned in the School Leaving Certificates would have become more reliable. In absence of any such further materials, in facts of the present case, learned Judge committed no error in not being guided solely by the dates mentioned in such certificates. Had these further documents be recovered, date of birth mentioned in the School Leaving Certificates would have become more reliable. In absence of any such further materials, in facts of the present case, learned Judge committed no error in not being guided solely by the dates mentioned in such certificates. Firstly, interestingly both the girls were stated to have been born on 1st June though in different years. Dr. Khimjibhai Dudabhai Makwana, PW-1, had refused to assess their age instead recommending opinion of the Civil Surgeon. Despite this, the investigating officer did not take any further steps to have the age of the girls so assessed. First victim who had also lodged the FIR had claimed that she was illiterate. Instead of signing the FIR, she had put her thumb impression. This further raises doubt about her having been admitted in the school and having studied upto third standard. 14. In this context, we may refer to the decision of the Supreme Court in case of Sunil v. State of Haryana(supra), in which in context of the assessment of age and the evidence in the nature of School Leaving Certificate, following observations were made : "29. The short question in the facts and circumstances of this case remains to be determined is whether the prosecutrix was a minor? Dr. Sadhna Verma, PW1 who examined the prosecutrix referred her for verification to the Dental Surgeon and the Radiologist. The failure of getting the prosecutrix examined from the Dental Surgeon or the Radiologist despite the fact that she was referred to them by Dr. Sadhna Verma, PW1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in absence of primary evidence, reports of the Dental Surgeon and the Radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix. 30. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. 31. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. 30. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. 31. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. 32. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced. 33. Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case. The appeal is accordingly disposed of." 15. In view of such position, we do not find that the assessment of evidence on record by the learned Sessions Judge on the question of age suffers from any perversity. 16. On the issue of the incident of sexual intercourse, perhaps even the defence has not seriously raised the dispute. The girls were however, not proved to be below 16 years of age. The question of consent of the victims therefore, assumes significance. In this context, we notice that there were large number of contradictions and exaggerations in the versions of both the victims. Some of the claims were plainly improbable. The girls were however, not proved to be below 16 years of age. The question of consent of the victims therefore, assumes significance. In this context, we notice that there were large number of contradictions and exaggerations in the versions of both the victims. Some of the claims were plainly improbable. To begin with, the first informant in the FIR had suggested that the accused had shown them a knife and threatened them, upon which, they had got scared and they were taken to the house. This version therefore, nowhere referred to either the girls being dragged by the two accused or the girls shouting and crying during such time. In contrast, in her deposition, this witness as well as her companion both had given rather exaggerated versions of being literally dragged on the ground by their arms by the two accused at a distance of about 5 to 10 minutes away from where they were caught. According to these girls, they were all the time shouting and crying. The medical evidence or the clothes of the victim did not show any such traces of being dragged on the ground. More importantly, even according to these witnesses, there were several factories situated around the field of Khanubhai, one of them being on the field or close to it, but no one seemed to have come to their help. The girls admitted that at such factories, normally, there are lots of people present. Near the field of Khanubhai, there were several other fields and the road to Khanubhai's field led to other fields as well. If this was the situation of the location, it simply defies logic that the two girls could have been dragged for a distance close to half a kilometer by their estimate of walking time during which they were continuously shouting and crying for help. Their physical examination and condition of the clothes also does not match this theory. 17. Yet another major contradiction is with respect to the place where the girls were allegedly raped. In the FIR, the complainant had mentioned that her friend was raped right next where she was being raped. In other words, the incident took place in the same room. 17. Yet another major contradiction is with respect to the place where the girls were allegedly raped. In the FIR, the complainant had mentioned that her friend was raped right next where she was being raped. In other words, the incident took place in the same room. In the deposition, both the victims took a different stand and contended that the first victim was taken in one room by accused No. 1 and at the same time the second victim was being raped by accused No. 2 in the other room. 18. Learned Judge had also rightly referred to the deposition of Dr. Khimjibhai Dudabhai Makwana, PW-1, who had though noticed the ruptured hymen, had not recorded that such rupture was fresh. He agreed that had it been the case, he would have recorded in the medical papers. 19. The conduct of the uncle of the second victim, Dangar Rupgar, PW-8 and other people from the village is also somewhat intriguing. Admittedly, the uncle met the girls right at the border of the field of Khanubhai which would mean barely a couple of feet away from the scene of the incident. Soon the uncle was joined by three or four residents of the village, one of them was Sarpanch. Despite this, they had not tried to catch hold of the accused. They instead dropped the girls at their houses. 20. Particularly, when the trial Court has examined the evidence from different angles and found the versions of the girls being subjected to sexual intercourse improbable, in acquittal appeal, we would not take a different view. As is well settled, unless the appreciation of evidence by the Court below is perverse, the appellate Court would not reverse the decision of the acquittal into one of conviction, only because two views are possible. 21. In the result, Criminal Appeal stands dismissed. Bail bond, if any, shall stand cancelled. R&P be transmitted back to the concerned trial Court.