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2019 DIGILAW 278 (GUJ)

Maheshbhai Vaghabhai Khant v. State of Gujarat

2019-03-28

A.C.RAO, J.B.PARDIWALA

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JUDGMENT : A.C. Rao, J. The appellant - original accused has preferred this Criminal Appeal under section 374 of the Code of Criminal Procedure challenging the judgment and order of conviction and sentence passed by the 5th Additional Sessions Judge, Godhara, Camp at Lunawada in Sessions Case No.139 of 2012 dated 18/7/2016, by which the trial court convicted the appellant - original accused for the offence punishable under sections 376 and 506(2) of Indian Penal Code, 1860. While convicting the appellant for the offence punishable under section 376 of Indian Penal Code, the trial court sentenced the appellant to undergo life imprisonment with fine of Rs.50,000 and in default to deposit the amount of fine, ordered to undergo further simple Imprisonment for a period of six months. While convicting the appellant for the offence punishable under section 506(2) of Indian Penal Code, the trial court sentenced the appellant to undergo simple imprisonment for a period of six months with fine of Rs.1,000 and in default to deposit the amount of fine, ordered to undergo further Simple Imprisonment for a period of one month. The trial court directed the appellant to undergo both the sentences concurrently. The trial court was pleased to grant benefit of set off as per section 428 of the Code of Criminal Procedure. 2. Facts giving rise to the present Appeal are set out as under :- The FIR being CR No.I-44 of 2011 came to be registered with the Lunawada Police Station for the offences punishable under sections 376 and 506(2) of Indian Penal Code, on the basis of the written complaint given by the complainant viz. Dakshaben daughter of Manilal Bapujibhai Patel. The complainant stated in the complaint that she is residing with her parents and four siblings. She has studied upto 10th standard. She has alleged that before about seven months, she had gone to village Nanavadala at her sister's house to attend marriage. She had boarded a Chhakada (Rickshaw) and reached to Godara village. On the next day i.e. on 4/6/2011 at about 2.00 a.m. while she was on her way back home walking alongside the Canal at Malekpur, the accused came from behind, gagged her mouth and dragged her to the nearby bushes where she was raped. It is alleged that the accused, thereafter, threatened the complainant not to disclose about the incident to anyone, otherwise he would kill him. 2.01. It is alleged that the accused, thereafter, threatened the complainant not to disclose about the incident to anyone, otherwise he would kill him. 2.01. In the course of the investigation, the investigating officer arrested the accused, recorded the statements of various witnesses, got the medical examination of the deceased, prepared the panchnama of the place of offence and carried out other investigation. After completion of investigation, the investigating officer filed chargesheet under section 173 of the Code of Criminal Procedure in the competent court of the learned Judicial Magistrate, First Class and the case was registered as Criminal Case No.1566 of 2011. 2.02. Since the case was exclusively triable by the Court of Sessions, the Judicial Magistrate after providing copies of the Chargesheet papers to the accused, committed the case to the Sessions Court under section 209 of the Cr.P.C. and the case was re-registered as Sessions Case No.139 of 2012 in the Court of Sessions Judge Panchmahals at Godhara. 2.03. The Sessions Court framed Charge against the accused and recorded Plea of the accused. The accused pleaded not guilty and prayed for trial. The Sessions Case No.139 of 2012 was assigned to the 5th (Ad-hoc) Additional Sessions Court, Panchmahals at Godhara, who conducted the trial in accordance with law. 2.04. The prosecution produced the following oral as well as documentary evidence : Sr. No. Ex.No. Particulars 1 41 Original complaint of the complainant 2 61 Birth certificate of the victim 3 15 Panchnama of the place of offence 4 49 Yadi sent to the medical officer for medical examination of the victim 5 31 Yadi sent for medical examination of the accused 6 50 Forwarding letter addressed to the FSL Gandhinagar for analysis of the muddamal 7 51 Muddamal Dispatch Note 8 52 Certificate of Jurisdiction 9 53 Acknowledgment of the Surat FSL regarding receipt of the muddamal 10 54 Letter sent for DNA Test of the blood sample of the baby of the victim 11 55 Letter sending Report of DNA Test after analysis 12 57 Acknowledgment of the Surat FSL regarding receipt of the muddamal 13 56 Letter written for the DNA Certi and Analysis of the victim and the accused 14 58 Analysis Report of the FSL, Surat and forwarding letter 15 64 Report of FSL Surat regarding DNA test of the child of the victim and other papers 2.05. At the conclusion of the trial, the 5th Additional Sessions Judge, Panchmahals at Godhara, Camp at Lunawada convicted the appellant accused for the offences punishable under sections 376 read with section 506(2) of IPC and sentenced the appellant to undergo life imprisonment for the offence under section 376 of IPC and sentenced to undergo simple imprisonment for a period of six months for the offence under section 506(2) of IPC and imposed fine, as aforesaid. 3. Mr.Zubin Bharada, the learned counsel appearing for the appellant accused has raised the following contentions :- [1] The trial court erred in convicting the appellant for the offence punishable under sections 376 and 506(2) of IPC and imposing the sentence of life imprisonment for the offence u/ss.376 and 506(2) of IPC; [2] The prosecution has not proved the case against the appellant beyond reasonable doubt; [3] The conviction is against the evidence on record, against the provision of law and against settled legal position; [4] The appellant is innocent and is falsely implicated in the offence; [5] The trial court erred in not appreciating the evidence on record in its true perspective; [6] The trial court failed to appreciate serious infirmities in the case of the prosecution and the trial court brush aside the defence of the accused; [7] The prosecution has failed to prove that the accused had taken the victim forcibly and committed the offence of rape; [8] The trial court failed to appreciate that the victim was in love with the accused and she was a consenting party to the physical relationship; [9] The trial court failed to appreciate that at the time of commission of the alleged offence, the victim was major; [10] The trial court failed to appreciate that the victim has admitted in her deposition that she had filed suit in the civil court for injunction restraining the appellant from marrying with any other woman and in the said suit, the victim has admitted that she was in love with the appellant herein and was in a relationship with the appellant past 1 ½ years and as per the victim herself, she had married with the appellant in the temple; [11] The trial court failed to appreciate that the victim has admitted in her deposition that she has not stated in the suit that the appellant had ravished her without her consent. [12] The trial court failed to appreciate that in the application given by the victim to the DSP, she identified herself to be the wife of the appellant; [13] The trial court failed to appreciate that there is inordinate delay of seven months in lodging the FIR and the delay has not been explained. 3.01. Lastly, Mr.Zubin Bharada, the counsel for the appellant submitted that if this Court is of the view that the accused betrayed the victim at the last minute, then, the appellant is ready and willing to deposit some reasonable amount for the maintenance of the son born in the relationship between the appellant and the victim. 4. The present appeal is opposed by Mr.K.P. Raval, the learned APP appearing for the State. He submitted that the prosecution has proved its case beyond reasonable doubt. He further submitted that the witnesses have supported the case of the prosecution. He submitted that the judgment and order of conviction and sentence passed by the trial court is not perverse. He submitted that the victim has clearly deposed that the appellant committed rape on her and there is no good reason to disbelieve her testimony. He submitted that the act of rape by the appellant impregnated the victim and she delivered a baby child and from the DNA Test, it has been established that the appellant is the biological father of the child delivered by the victim. 4.01. The principal argument of Mr.Raval, learned APP appearing for the State is that the accused cannot take defence of consent because in the trial court, such defence was not taken by the accused. Mr.Raval, submitted that such defence has not been even taken by the accused in his statement under section 313 of the Code of Criminal procedure recorded by the trial court. He submitted that in such circumstances, there is no scope for this Court now while hearing the appeal filed by the accused to consider whether the victim was a consenting party or not. 4.02. Mr. Raval, in support of his above submission has placed strong reliance on the decision of the Supreme Court in the case of Ganga Singh Versus State of Madhya Pradesh, (2013) AIR SC 3008, more particularly observations made by the Supreme Court in para 14. Para 14 reads thus :- "14. 4.02. Mr. Raval, in support of his above submission has placed strong reliance on the decision of the Supreme Court in the case of Ganga Singh Versus State of Madhya Pradesh, (2013) AIR SC 3008, more particularly observations made by the Supreme Court in para 14. Para 14 reads thus :- "14. We further find that the appellant has not taken a defence in his statement under Section 313 of the Criminal Procedure Code that the sexual intercourse was with the consent of PW-5. Instead, he has denied having had any sexual intercourse with PW-5 and has taken a stand that he has been falsely implicated on account of a quarrel between him and the husband of PW-5. Yet, the trial court held that there was proof of sexual intercourse between the appellant and PW-5, but the sexual intercourse was with the consent of PW-5. We are of the considered opinion that as the appellant had not taken any defence of consent of PW-5, the trial court was not correct in recording the finding that there was consent of PW-5 to the sexual intercourse committed by the appellant and should have instead considered the defence of the appellant that he had been falsely implicated because of a quarrel between him and the husband of PW-5. We have, however, considered this defence of the appellant but find that except making a suggestion to PW-2, the appellant has not produced any evidence in support of this defence. As PW-2 has denied the suggestion, we cannot accept the defence of the appellant that he was falsely implicated on account of a quarrel between the appellant and the husband of PW-5." 4.03. He submitted that the life of the child born in the physical relationship between the appellant and victim has become miserable, because the appellant has now married with another woman and the victim and the child will have to live their lives with social stigma. He submitted that no error has been committed by the trial court in convicting the accused. He prayed that the appeal be dismissed. 5. Heard Mr.Zubin Bharda, the learned counsel for the appellant and Mr.K.P. Raval, the learned APP appearing for the State at length. Perused the impugned judgment and order of conviction. Re-appreciated the evidence on record. 6. On consideration of the evidence on record, the following facts emerge :- 6.01. He prayed that the appeal be dismissed. 5. Heard Mr.Zubin Bharda, the learned counsel for the appellant and Mr.K.P. Raval, the learned APP appearing for the State at length. Perused the impugned judgment and order of conviction. Re-appreciated the evidence on record. 6. On consideration of the evidence on record, the following facts emerge :- 6.01. The FIR has been lodged after more than seven months. The victim has admitted in her evidence that she was in love with the appellant. She also admitted that she had filed a civil suit against the appellant seeking injunction restraining the appellant from marrying with another woman. She also admitted that she had preferred applications addressed to the DSP and Mahila Kendra Lunawada, introducing herself to be the wife of the appellant. She has deposed that she got married with the appellant in the temple. She has also admitted that in the suit filed by her, she has not alleged that the appellant raped her and on account of which she conceived and delivered a baby. 6.02. As per the allegations levelled in the FIR, the incident in question has occurred before seven months from the date of registration of the FIR i.e. 4/6/2011. At the relevant point of time Section 375 of the IPC which was in force read thus :- "375. Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawful married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she given consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 6.03. Admittedly, the birth date of the victim is 1/6/1994 and therefore, on the date of the alleged incident i.e. on 4/6/2011, the victim was aged 16 years and above. 6.04. The victim has admitted that she got married with the appellant keeping her parents in the dark at the Fagvel temple. The victim did not make any complaint till she became pregnant and delivered the child. 6.05. Considering the fact that the victim was almost 17 years of age on the date of the alleged offence and also considering the provisions prevailing at the relevant time, the victim was major. The complainant preferred had preferred an application addressed to the Mahila Kendra, Lunawada complaining that the appellant was not ready to accept her as his wife and therefore, prayed for help. 6.06. Considering the overall facts and evidence on record, we are of the opinion that the victim was a consenting party to the physical relations and by no stretch of imagination it can be said the appellant committed rape on the victim. 6.07. We are not impressed by the submission of Mr.Raval, the learned APP that in the absence of specific defence of consent being taken by the accused, it is not possible for this Court to infer or take the view that the victim was a consenting party. The issue raised by Mr. Raval, learned APP is quite interesting and we would like to deal with the same in details. 6.08. Section 114-A of the Indian Evidence Act was brought on the statute book with effect from 25.12.1983 by the Criminal Law (Amendment) Act, 1983. The issue raised by Mr. Raval, learned APP is quite interesting and we would like to deal with the same in details. 6.08. Section 114-A of the Indian Evidence Act was brought on the statute book with effect from 25.12.1983 by the Criminal Law (Amendment) Act, 1983. It reads as under: "114-A. Presumption as to absence of consent in certain prosecutions for rape - In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that did not consent, the Court shall presume that she did not consent." 6.09. In order to enable the court to draw presumption as contained in Section 114-A against the accused, it is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix states in her evidence that she did not consent to the act of sexual intercourse done by the accused on her which, as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under Section 114-A of the Indian Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Indian Evidence Act. 6.10. Coming now to the case on hand, we find that the prosecutrix, in her examination-in-chief on oath in clear terms said that she did not give her consent for commission of the act to the appellant and that he committed the act of sexual violence on her against her will. 6.10. Coming now to the case on hand, we find that the prosecutrix, in her examination-in-chief on oath in clear terms said that she did not give her consent for commission of the act to the appellant and that he committed the act of sexual violence on her against her will. The appellant in his statement recorded under Section 313 of the Code stated that he had been falsely implicated in the offence. So far as the commission of sexual intercourse is concerned, it is proved with the medical evidence that it was performed by the appellant with the prosecutrix. 6.11. The answer to the argument canvassed by Mr.Raval, the learned APP appearing for the State is in the decision of the Supreme Court in the case of Pratap Misra and others Versus State of Orissa, (1977) AIR SC 1307. We may quote the relevant observations :- "Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecutrix not against her will but with her consent and the connivance of her husband P. W. 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals." 6.12. We may also refer to and rely upon the decision of the Supreme court in the case of Surendra and another Versus State of Maharashtra, (2006) AIR SC 3063. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals." 6.12. We may also refer to and rely upon the decision of the Supreme court in the case of Surendra and another Versus State of Maharashtra, (2006) AIR SC 3063. In the said case, the Supreme Court was dealing with the plea of right of private defence raised by the accused. In this regard, the Supreme Court observed as under :- "27. The learned courts below committed a manifest error of law in opining that the Appellants had not discharged the initial burden which is cast on them. Even such a plea need not be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. 28. In State of U.P. v. Ram Swarup and Another, (1974) 4 SCC 764 , this Court stated the law, thus : "The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self-defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law Rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the Court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded. For a moment, therefore, we will keep apart the plea of the accused and examine briefly by applying the well-known standard of proof whether the prosecution, as held by the Sessions Court, has proved its case." 6.13. In the case of Kashi Ram and others Versus State of Madhya Pradesh, (2001) AIR SC 2902, the Supreme Court observed in para 24 as under :- "24. The High Court was also not right in criticising and discarding availability of plea of self defence to the accused persons on the ground that the plea was not specifically taken by the accused in their statements under Section 313, Cr.P.C. and because the accused Prabhu did not enter in the witness box. Though Section 105 of the Evidence Act enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded under Section 313, Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case as held by this Court in Vijayee Singh's case (supra). It is basic criminal jurisprudence that an accused cannot be compelled to be examined at a witness and no adverse inference can be drawn against the defence merely because an accused person has chosen to abstain from the witness box." 6.14. In the case of Munshi Ram and others Versus Delhi Administration, (1968) AIR SC 702, the Supreme Court observed in para 5 as under :- "5. It is true that the appellants in their statement under Section 342, Cr. P C had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-examination of the prosecution; witnesses as well as by adducing defence evidence. It is true that the appellants in their statement under Section 342, Cr. P C had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-examination of the prosecution; witnesses as well as by adducing defence evidence. It is well settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record - see In re, Jogali Bhaigo Naiks, AIR 1927 Mad 97 . The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilties in favour of that plea on the basis of the material on record." 6.15. In the case of Gottipulla Venkata Siva Subbrayanam and others versus The State of A.P. and another, (1970) AIR SC 1079, the Supreme Court observed in para 19 as under :- "19. The fact that the plea of self-defence was not raised by accused No. 10 and that he had on the contrary pleaded alibi does not, in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper appraisal of the evidence and other relevant material on the record, the Court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right. When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would not be justified in ignoring that evidence and convicting the accused merely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence. The analogy of estopple or of the technical rules of civil pleadings is, in cases like the present, inappropriate and the Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and not retributive. The approach of the High Court in this matter seems to us to be erroneous. We accordingly allow the appeal and acquit the appellants." 6.16. Thus, the law is well settled. The approach of the High Court in this matter seems to us to be erroneous. We accordingly allow the appeal and acquit the appellants." 6.16. Thus, the law is well settled. Even in the absence of a specific defence of consent being taken by the accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then, the court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. The admissions of the prosecutrix in her cross examination makes the picture abundantly clear. There is no escape from the fact that she was a consenting party. 6.17. Thus, keeping in mind the aforesaid principles of law, on close scrutiny of the entire evidence, particularly the evidence of the prosecutrix, it emerges that the prosecutrix had maintained physical relations with the appellant on her own free will and volition. There is no evidence or allegation that the prosecutrix was lured or seduced into such relations by giving false promise of marriage. 7. In the result, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the 5th Additional Sessions Judge, Godhara, Camp at Lunawada in the Sessions Case No.139 of 2012 dated 18/7/2016 are hereby quashed and set aside and the appellant is acquitted of the offences punishable under sections 376 and 506(2) of Indian Penal Code, 1860. The appellant - original accused - Maheshbhai Vaghabhai Khant is ordered to be released forthwith, if not required in any other case. The appellant accused shall deposit an amount of Rs.5,00,000/- (Rupees Five Lakh only) with the trial court within a period of two months from today, as agreed by the learned counsel for the appellant. On deposit of the aforesaid amount, the trial court shall invest the said amount of Rs.5,00,000/- with any Nationalised Bank by way of a Fixed Deposit till the child delivered by the victim attains the age of majority. However, the victim shall be entitled to get periodical interest that may accrue on the said Fixed Deposit during the interregnum period. On deposit of the aforesaid amount, the trial court shall invest the said amount of Rs.5,00,000/- with any Nationalised Bank by way of a Fixed Deposit till the child delivered by the victim attains the age of majority. However, the victim shall be entitled to get periodical interest that may accrue on the said Fixed Deposit during the interregnum period. The father of the appellant accused shall file an undertaking on oath and place the same on record of this case within a period of one week from today stating that the amount of Rs.5,00,000/- shall be deposited with the trial court within a period of two months from today.