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2017 DIGILAW 849 (GUJ)

Sajubha Jivubha Girasiya v. State of Gujarat

2017-04-20

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

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JUDGMENT : Biren Vaishnav, J. 1. Both these appeals arise out of the sessions case No. 99 of 2009 by which the appellant, charged of offences under sections 376 and 377 of the Indian Penal Code has been sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 5,000/-. 2. Criminal appeal No. 1983 of 2012 has been preferred by the original accused challenging the conviction and sentence imposed by the learned Sessions Judge. State has preferred Criminal Appeal No. 839 of 2013 for enhancement of the sentence. 3. Induba, mother of the victim girl filed an FIR on 23.04.2008. According to the victim girl's mother, the first informant, while she was at home, cooking in the kitchen, her eldest daughter-the victim girl, aged 9, came home running and crying. She was carrying her pyjama in her hand. She was bleeding between her legs. When the mother and her aunt asked her as to what had happened, she told her mother that Sajubha, her uncle had carried her to his house while she was playing in the veranda. Sajubha, the accused made her lie down on a cot, removed her clothes, disrobed himself and sexually abused her. The complainant further states that when they went to look for Sajubha, they found the house locked. The parents of The victim girl carried her in a jeep to the hospital. 4. Induba, the complainant and mother of the victim was examined as PW-5, at Exh. 21. She in her testimony stated that Sajubha was staying on the house across the road. On 23.05.2008, at 12 noon, when she was in the kitchen cooking, she saw her daughter The victim girl coming towards her, crying. She was bleeding from her private parts. She was carrying her pyjama in her hand. When questioned by the mother in presence of her sister-in-law, The victim girl informed her mother that she was carried by Sajubha to his house. She was made to lie down on a cot. Sajubha removed her clothes. He too undressed and abused her sexually. The mother further testified that on being so informed when she went to Sajubha's house, she found the house locked. She immediately woke her husband who was at home. The parents carried The victim girl in a jeep belonging to Nilesh Suthar to the Khambhalia Government Hospital. Sajubha removed her clothes. He too undressed and abused her sexually. The mother further testified that on being so informed when she went to Sajubha's house, she found the house locked. She immediately woke her husband who was at home. The parents carried The victim girl in a jeep belonging to Nilesh Suthar to the Khambhalia Government Hospital. She was given primary treatment and then taken to the G.G. Hospital at Jamnagar. She confirmed to have lodged First Information Report at Exh. 22. The clothes that The victim girl was wearing at the time of incident were identified by her in the open Court. This witness was cross-examined. She agreed to the suggestion that Sajubha in the past, had differences on a right of way between the two houses. Both the houses were opposite to each other. The veranda of the house was open and had no doors. The victim girl was wearing a blue coloured pyjama and a top. She agreed that when she came home crying, she was bleeding profusely from her private parts. She also stated that when The victim girl came to her, she had seen bite marks on her body and on her back. On the cross-examination of this witness, she agreed that she had seen The victim girl stained with semen. She agreed that The victim girl was carried to the hospital in the same clothes that she was wearing at the time when she was abused. 5. The victim, who was aged nine, was examined in camera. She was examined as PW-10 at Exh. 40, in accordance with the provisions of the Evidence Act. The learned Judge, ascertained her competence to testify. The victim girl stated in her testimony that she was staying at village: Bhogat with her parents. She further stated that on the date of the incident, she was playing outside her house with her brother and sister. At that point of time, Sajubha came over. He carried her to his house. He made her lie down on a cot and started biting her on her back and on her face and removed her clothes. He too disrobed. He thereafter sexually abused her and penetrated her in the front and the rear. After having committed the offending act, he ran away. She went home carrying her pyjama, crying. She narrated the incident to her mother. He too disrobed. He thereafter sexually abused her and penetrated her in the front and the rear. After having committed the offending act, he ran away. She went home carrying her pyjama, crying. She narrated the incident to her mother. Nileshbhai and her parents took her to Khambhalia Government Hospital. She was examined at the Government Hospital. The doctor at Jamnagar had treated her so that her bleeding in the hymen could stop. She further stated that Sajubha, her uncle, stays next door. This witness further stated that she could identify the cover of the mattress on which she was asked to lie down by Sajubha. She identified the clothes too. The victim girl was cross-examined. Suggestion was put to her by the defense to dent the credibility of this witness about tutoring. In the cross-examination, this witness further stated that Sajubha, the accused, was alone at home. His wife and his son had gone out. She was aware of the fact that her mother had given some amount to Sajubha's wife. A suggestion made to her which she denied that the bleeding that occurred in her private part was due to a fall while she was playing. She also denied a suggestion that she had inserted a wooden butt in her vaginal part and due to such act, she was bleeding from her private parts. 6. Dr. Premchand Singh, was cross-examined as PW-6, at Exh. 25. He was a Medical Officer at Khambhalia General Hospital. In his testimony, he states that on 23.05.2008 the victim girl was brought to the hospital. When she was examined, it was found that she was bleeding from her private parts. She was fully conscious and in the history which has been recorded, she stated that she has been raped. Since the Khambhalia hospital did not have adequate facilities and gynecologist, she was referred to the Jamnagar hospital. The medical certificate that this doctor issued at Exh. 26 shows that the history recorded was "alleged sexual assault". The certificate further recorded that there were no external injuries on the body, but there were blood stains on perineum. The victim girl was accompanied to the hospital by her parents. He was cross-examined. In the cross-examination, this witness further stated that he did not find the clothes stained with semen. The certificate further recorded that there were no external injuries on the body, but there were blood stains on perineum. The victim girl was accompanied to the hospital by her parents. He was cross-examined. In the cross-examination, this witness further stated that he did not find the clothes stained with semen. He further agreed to a suggestion that in the event the women is raped, semen would ooze out of her private parts. 7. Dr. Nilesh Gadhvi, the medical officer at the Jamnagar Medical College was examined as PW-8 at Exh. 35. This doctor testified that the victim and her parents had in their history given to the doctor stated that the victim girl was raped on 23.04.2008 at around 12 in the afternoon. The incident occurred when she was playing outside the house. Sajubha had carried her into the house and had sexually abused her. According to the doctor since she had not attained puberty, she had not yet started menstruating. She had no other ailment. The medical examination was carried out in the presence of the staff nurse and one other doctor Nitaben Rana. Bruises were found on her face, on the left and right cheeks. There were no signs of injuries on her chest or stomach. On examination of her private parts, they were found to be blood stained. The hymen had not ruptured. There were signs of injuries in her vaginal passage and anal passage. When a finger was inserted in her anal passage, she had experienced pain. The doctor took a sample in a cotton swob from her vaginal passage and anal passage. Medical certificate was issued at Exh. 36. The medical certificate records that there were fresh lacerations in the vaginal and anal opening and there were blood stains. In the certificate, the doctor opined that based on the examination, it was evident that there were signs of recent attempt of vaginal penetration and rectal penetration. Dr. Nilesh Gadhvi was cross-examined. In the cross-examination, he admitted that the examination was carried out in the presence of two medical officers viz. one Nurse and one doctor. The examination was carried out in presence of the victim girl's mother. He admitted in the cross-examination that he did not find any semen on the clothes. Dr. Nilesh Gadhvi was cross-examined. In the cross-examination, he admitted that the examination was carried out in the presence of two medical officers viz. one Nurse and one doctor. The examination was carried out in presence of the victim girl's mother. He admitted in the cross-examination that he did not find any semen on the clothes. He admitted in the cross-examination that the injuries that the girl sustained could be possible as a result of a fall, however, it is not that it happens in every case. 8. Dr. Nilesh Makwana, PW-11, was the medical officer who examined the accused Sajubha. The only fact that emerges from the testimony of this witness is that Sajubha was medically examined and an attempt was made to get the semen of Sajubha, but that attempt failed. 9. Nilesh, PW-9, in whose car the parents carried the victim to the hospital, was examined at Exh. 39. In his testimony, Nilesh states that he was informed by the parents that the victim needed to be carried out to the hospital. The parents informed him that Sajubha had successfully abused her, she was profusely bleeding and therefore, she needed immediate medical attention. This witness stated that when he went with his jeep to The victim girl's house, she was crying and she was bleeding. The scene of offence Panchnama is at Exh. 11. From the scene of the offence, they found a cot. On the cover of the mattress which was subsequently taken as Muddamal, they found blood stains. By a panchnama at Exh. 13, the pyjama and the top that The victim girl was wearing, were taken in for investigation. They were found stained with blood. The FSL report and the serological report has been produced at Exh. 78. The clothes of the victim have been found to be stained with blood and the blood group is that of the victim. 10. Based on this evidence on record, the learned Sessions Judge convicted the appellant and sentenced him to undergo rigorous imprisonment for 10 years. 11. We need to assess the evidence independently. The first informant mother-Induba in the first information report, which was filed promptly on the same day, narrates that the incident occurred at 12 noon. Sajubha, the accused carried The victim girl into his house while she was playing. The victim girl was made to lie down on a cot. 11. We need to assess the evidence independently. The first informant mother-Induba in the first information report, which was filed promptly on the same day, narrates that the incident occurred at 12 noon. Sajubha, the accused carried The victim girl into his house while she was playing. The victim girl was made to lie down on a cot. Accused removed her clothes. He too, disrobed and sexually abused The victim girl. She, as a result of the act, started profusely bleeding. After the act, she ran towards her mother carrying her pyjama in her hand. The mother found that The victim girl was bleeding from her private parts both from the front and from rear, the vaginal passage and the anal passage. In the testimony which she recorded at Exh. 21, she reiterates the same incident. The defense has tried to suggest that the version that the mother has given ought not to be believed in view of the fact that though in the FIR, she stated that The victim girl was bleeding, however, in the testimony when she was examined, there were exaggerations and improvements. Physical condition of the daughter is presented in a highly exaggerated manner in her testimony and therefore, the complainant's version should not be believed. What needs to be appreciated from reading the FIR together with the testimony of the mother Induba is that she had seen her daughter who approached her. The daughter who was bleeding profusely from her private parts, the vaginal passage and the anal passage, when questioned immediately, mentioned that she had been physically abused by Sajubha. The victim girl narrated the entire episode which this witness reproduced in her testimony that The victim girl was carried to a cot by Sajubha, made to undress and that Sajubha indulged in the offending act. The witness further stated that she carried The victim girl to the hospital where she received primary treatment. What needs to be noticed is that it is but natural for a young victim to naturally respond to her mother in stating what she had undergone. The mother in her testimony may therefore tend to exaggerate the pain that her daughter had undergone. However, such exaggeration was not to the extent that this version can be discredited. What needs to be noticed is that it is but natural for a young victim to naturally respond to her mother in stating what she had undergone. The mother in her testimony may therefore tend to exaggerate the pain that her daughter had undergone. However, such exaggeration was not to the extent that this version can be discredited. Moreover, immediately after the incident, on 20.05.2008 i.e. on the same day when The victim girl was taken to the Jamnagar hospital, the mother recorded the complaint before the police authorities. These circumstances therefore completely bring out the truth and the veracity of the events that the complainant testifies. 12. The victim who was examined as PW-11, has also in her testimony which was recorded in camera, clearly narrated the incident how it unfolded. She stated that while she was playing outside her house, Sajubha came over and carried her to his room. She was made to lie down on a cot. Sajubha removed her clothes. He too undressed. He thereafter tried to penetrate her in the front and from rear. After the act, she ran home crying carrying her pyjama, profusely bleeding. The victim girl also withstood the test of cross-examination. The defense has tried to put suggestions so as to lead one to believe that she was tutored but from her testimony and in the cross-examination, what comes forth is that she not only narrates the incident, but also the sequence preceding it. She has categorically stated in her cross examination that when she was being carried to Sajubha's house, she was aware that Sajubha's wife and son were not at home. Her mother had lent them some money to visit the doctor so that they can go and visit the doctor. 13. The defense has tried to bring out a case of disproving the case on the basis of medical evidence. What is suggested is that when the testimony of doctor Dr. Premchand Singh, PW-6, is seen, what comes out from the testimony is that the clothes which were examined when The victim girl was taken to Khambhalia at the first instance, the clothes were not found to be stained with semen. That the hymen was not ruptured. From the medical certificate which is produced at Exh. 26, it is evident that this doctor had recorded the history of alleged sexual assault. That the hymen was not ruptured. From the medical certificate which is produced at Exh. 26, it is evident that this doctor had recorded the history of alleged sexual assault. The certificate also specifically narrates that there were blood stains on the perineum. 14. From the medical evidence, it has also come forth on record that the testimony of Dr. Nilesh Gadhvi, PW-8, Exh. 35, if seen from the evidence on record, what comes out is that the doctor had found the bruises on the left and the right cheeks of The victim girl. On examination of her private parts, there were small lacerations seen between her vaginal and anal passage. The certificate at Exh. 36 did show that there were recent attempts of vaginal penetration and rectal penetration. The suggestion put-forth by the defense in the cross-examination of this witness that these injuries could have been sustained as a result of butt of stick inserted in the vaginal passage is also denied. The forensic evidence in terms of FSL report also shows that blood stains found on the pyjama and the mattress cover belonged to that of the victim The victim girl. 15. The defense would suggest that during the evidence of PW-11 doctor Nilesh Makwana together with the testimony of doctor Premchand if seen in conjunction, what is evident is that in absence of stains of semen found on the clothes, it cannot be said that the offence of rape can be said to have been made out. What is further canvassed by the learned advocate for the appellant is that when there was no penetration, the offence cannot be termed as 'rape'. While reading the definition of rape as defined under section 375 of the Code, it becomes evident that it is not necessary that there should be complete penetration or penetration in order to constitute an offence of rape. Then the medical evidence of doctor Nilesh, PW-8, if examined, what is evident from the testimony is that there have been small lacerations between the vaginal and anal openings, there was bleeding on the vaginal and the anal passages. This also finds support from the testimony of the victim girl and the mother Induba respectively. When all these circumstances put together and examined, it is established that the accused committed the offence of rape and was therefore convicted for offence punishable under section 376, cannot be faulted. This also finds support from the testimony of the victim girl and the mother Induba respectively. When all these circumstances put together and examined, it is established that the accused committed the offence of rape and was therefore convicted for offence punishable under section 376, cannot be faulted. 16. When the medical evidence of the doctor Dr. Nilesh Gadhvi, PW-8, is seen in light of the testimonies of the victim PW-10, The victim girl at one instance, briefly states that she was turned over and Sajubha tried to penetrate. The nature of the injuries that the medical evidence records, are lacerations on the back. The injury so sustained, would certainly not satisfy the ingredients of the offence of section 377 of the Indian Penal Code. Therefore, while upholding conviction of the appellant under section 376 of the Indian Penal Code, the conviction under section 377 needs to be deleted. 17. The learned Sessions Judge having convicted the accused under section 376, imposed punishment and sentenced the accused to undergo 10 years of rigorous imprisonment under section 376 of the Indian Penal Code, particularly sub-section 2 thereof, which categorically lays down that when the offence of rape is committed by relative of a woman which is under 16 years of age, and when such offence is proved, the sentence shall be of rigorous imprisonment which shall be not less than 10 years, but which may extend upto imprisonment for life. Having considered and assessed the evidence and having found that the appellant's complicity of having committed the offence under section 376 being proved, the learned Sessions Judge has sentenced the accused of minimum 10 years that this section requires. 18. Section 377 of the Criminal Procedure Code deals with an appeal filed by the State on the ground of inadequacy of sentence. According to sub-section (3) of section 377 of the Code, when an appeal has been filed and when the sentence has been found to be inadequate, the Court shall not enhance the sentence except after giving the accused a reasonable opportunity showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the benefit for reduction of sentence. Similarly section 386 of the Criminal Procedure Code deals with the powers of the Appellate Court. Similarly section 386 of the Criminal Procedure Code deals with the powers of the Appellate Court. In accordance with sub-clause (ii) of clause (c) of section 386, the Court, in an appeal under section 377, can alter the finding while maintaining the sentence. Thus in terms of sub-section (3) of section 377 of Cr.P.C., an accused has a right to show cause before the High Court decides to enhance the sentence. While showing cause, the accused may plead for reduction of the sentence or even for his acquittal. Therefore, even though the accused may not have filed appeal against his conviction, while the State appeal for enhancement is being heard, he can question the correctness of the conviction. This right is independent of his right to appeal against conviction. Simultaneously under clause (c) of section 386 of Cr.P.C., the appellate Court while deciding appeal for enhancement of sentence has wide powers and is not limited to enhancing the sentence or rejection such request. The appellate Court can besides others reverse the finding and sentence and acquit or discharge the accused or order retrial. Under the circumstances, though learned advocate for the accused had stated before us that the accused having served out virtually the entire sentence and is therefore not interested in pursuing his appeal, we had in view of the State's appeal for enhancement, gone into the correctness of the conviction of the accused. 19. The State has filed an appeal being Criminal Appeal No. 839 of 2013 for enhancement of the sentence. 20. Accordingly having examined the contents and the evidence on record and having come to the conclusion that the conviction and the sentence imposed by the learned Sessions Judge is appropriate and we do not find any reason that the sentence imposed by the learned Sessions Judge needs to be enhanced. 21. Criminal Appeal No. 1983 of 2012 is partly allowed. The State's enhancement appeal being Criminal Appeal No. 839 of 2013 is dismissed. R & P to be transmitted before the Trial Court.