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Gujarat High Court · body

2019 DIGILAW 468 (GUJ)

Ushaben Rajeshbhai Patel v. State Of Gujarat

2019-04-25

R.P.DHOLARIA

body2019
JUDGMENT : 1. Criminal Appeal No.1605 of 2016 is preferred the appellants – ladies against the judgment and order of conviction dated 6.9.2016 passed by learned Additional Sessions Judge, Court No.9, Ahmedabad in Sessions Case No.286 of 2013, whereas Criminal Appeal No.847 of 2017 is filed by appellant Rajeshbhai @ Lalo against the said impugned judgment and order of conviction. 2. As the aforesaid Criminal Appeals are arising out of the judgment and order under challenge and with the consent of learned advocates for the parties, both these appeals are being taken up for hearing and are disposed of by this common judgment. 3. The short facts giving rise to the present appeal are that accused Nos.1 to 7 by conspiring with one another had abducted the complainant – prosecutrix and witness Kiranben for the period from 22.11.2011 to 28.11.2011 and they were illegally confined in the house of accused No.3 and accused No.3 had committed rape upon the complainant. It is also alleged that in order to extort money, the accused had also assaulted the complainant with feast and kick blows and had threatened and thereby committed offence punishable under sections 365, 342, 376, 384, 387, 323, 506(1) and 120-B of IPC. Ultimately, the complaint came to be lodged. 4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 5. In order to bring home the guilt, the prosecution has examined several witnesses and also produced documentary evidences. 6. At the end of the trial, after recording the statements of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 7. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court. 8. Mr.B.S.Jebaliya, learned advocate appearing for Mr.Sandip Patel and Mr.Vaibhav Patel, learned advocates appearing for the appellants has taken this Court through the paper-book and evidence on record and read over the evidence of material witnesses and argued that this is a clear case of false implication of the accused and highly improbable contradictory version is coming out from the mouth of the witnesses. He submitted that there appears no uniformity amongst the evidence of the prosecutrix, her sister, her mother and her brother. All the said witnesses had deposed contradictory as regards to the alleged act of rape as well as period of confinement, place of confinement and registration of the FIR and even all factual other aspects of the case also according to his precise submission, there appears no possibility of reconciling their evidence if it may be read together as all the witnesses have stated separate and different version as regards to the incident in question alleged to have been happened regarding wrongful confinement, extortion as well as alleged rape. He further submitted that the complaint came to be lodged for about seven days later though all the family members of the prosecutrix were meeting everyday with her, while the accused alleged to have confined wrongfully the prosecutrix and her sister in the house of the accused and that none of the family members who were residing in the nearby house of the accused had lodged any complaint is clear indicative of the fact that the complainant wrongfully in order to not returning the amount borrowed from the accused has implicated the accused with the crime in question which is the allegation levelled and evidence given by the witnesses clearly depicting the picture in the nature of highly improbable and unbelievable. He submitted that even conduct of the brother, sister and mother of the prosecutrix does not inspire confidence that if at all members of the family have been wrongfully confined for about 10 days and subjected to rape than none of the family members have come forward and filed complaint. He further submitted that entire case is highly improbable for the simple reason that though house of the accused was surrounded with several houses including the house of the near relatives as well as the complainant, the prosecution has not examined any independent witness and even except the oral testimony of the prosecutrix, no sort of corroborative piece of evidence is available on record and entire case of the prosecution is rested upon solitary evidence of prosecutrix who was aged about 26 years at the relevant point of time and she was also married one. He further submitted that the prosecution has not produced any evidence as regards to potency of the accused from his medical examination. He further submitted that the prosecution has not produced any evidence as regards to potency of the accused from his medical examination. He further submitted that the prosecution has also not produced any report of the Serologist. Lastly, Mr.Jebaliya, learned advocate appearing for the appellants has requested this Court to allow the present appeals. 9. On the other-hand, Ms.Punani, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellants - original accused. She submitted that since the oral testimony of the prosecutrix is getting support from the evidence of other witnesses and learned trial Court has rightly placed reliance upon the evidence of the witnesses and their evidence is totally consistent with each other. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference. 10. This Court has gone through the entire Record and Proceedings, impugned judgment rendered by learned trial Court as well as rival submissions advanced by learned advocates for the respective parties. 11. PW 6 Dr.Jagdish Solanki deposed that while he was on duty on 29.10.2011, the prosecutrix was brought by the police along with yadi; at that time, he examined her. Upon her examination, neither any external nor internal injury was found over her person. Even, the witness had not noticed any injury over her private part and her hymen was found to be old teared and she also gave history which he recorded in the certificate at Exh.39. 12. PW 8 – prosecutrix deposed that at the relevant point of time, she was residing at Vivekanandnagar, Hathijan, Dascroi. She deposed that she has borrowed either Rs.45000/- or Rs.65000/- from accused Rajeshbhai @ Lalo or from his wife Tina for which she has also handed over 10 to 15 tins of edible oil. 12. PW 8 – prosecutrix deposed that at the relevant point of time, she was residing at Vivekanandnagar, Hathijan, Dascroi. She deposed that she has borrowed either Rs.45000/- or Rs.65000/- from accused Rajeshbhai @ Lalo or from his wife Tina for which she has also handed over 10 to 15 tins of edible oil. She deposed that when she had gone for handing over tins of edible oil, at that time, her sister Kiran was also accompanied with her and accused Rajeshbhai @ Lalo and his two wives confined them and thereafter her mother arrived there and requested for releasing them, but Rajeshbhai @ Lalo did not release them and Rajeshbhai @ Lalo – accused demanded Rs.4,00,000/- instead of Rs.45000/- and if they would not hand over such amount, then the accused would keep the prosecutrix as his kept or he would sell away her and thereafter the accused kept her for about 10 days and on the day of Dhanterash, the abovementioned three accused as well as other four accused beaten her and also abused and thereafter during nocturnal hours at about 3.00 O’clock accused Tina took her in Mandap and thereafter accused Rajeshbhai @ Lalo raped her thrice in between 3.00 am and 5.00 am; at that time, both the lady accused were also present. In the cross examination, the witness virtually admitted that whatever she deposed in her testimony in examination-in-chief which she had not stated in her complaint. 13. PW 9 – Rahul – the brother of the prosecutrix deposed that when incident in question was occurred on 22.10.2011, at that time, accused Rajeshbhai @ Lalo was demanding Rs.10,000/- to Rs.15,000/- from his sister and his wife Tina and others had transaction with the prosecutrix and also executed document indicating that accused – Rajeshbhai @ Lalo had kept the prosecutrix as his wife. He further deposed that thereafter accused – Rajeshbhai @ Lalo was demanding Rs.1,00,000/- and when accused – Rajeshbhai @ Lalo realized that he would pay Rs.1,00,000/-, thereafter, he enhanced the amount to Rs.4,00,000/-. He further deposed that thereafter accused – Rajeshbhai @ Lalo was demanding Rs.1,00,000/- and when accused – Rajeshbhai @ Lalo realized that he would pay Rs.1,00,000/-, thereafter, he enhanced the amount to Rs.4,00,000/-. He further deposed that on the said day, accused – Rajeshbhai @ Lalo confined sisters of the witness and his parents were driven out and thereafter, he went to Surendranagar and he continued to sleep for about two days and thereafter met his relative Chetan and Chetan advised him to meet one police official at Sarkhej Crime Branch and thereafter, he met the said police official and lodged the complaint. In the cross examination, in paragraphs 6 and 7, the witness has admitted that he has not stated entire story as to what he stated in examination-in-chief. 14. PW 10 Kiran – sister of the prosecutrix deposed that she was residing along with her two sisters, parents and brother. She deposed that he mother borrowed Rs.40500/- from accused – Rajeshbhai @ Lalo and his wife. While she was proceeding nearby Saibaba temple, at that time, Tina and Usha called her and asked for tins of edible oil and thereafter, she was taken to the house of the accused where the accused beaten them and they were kept at their house and on the following day, she was allowed to go to her home and thereafter, she came back with tiffin and thereafter, she was not allowed to go and the prosecutrix told her that during night, she was raped by accused – Rajeshbhai @ Lalo and thereafter the police rescued them. The defence has brought on record that she had not stated whatever she deposed in her examination-in-chief before the police while her statement was recorded. 15. PW 11 – Vasantibahen – mother of the prosecutrix has deposed that prosecutrix borrowed Rs.45000/- from accused – Rajeshbhai @ Lalo for which the prosecutrix handed over 15 tins of edible oil and thereafter, while she had gone along with her son Rahul, her daugher Pragna, at that time, accused – Rajeshbhai @ Lalo told them to pay remaining amount and take her daughters to her house. On the following morning, when they visited the accused’s house, they were confined in the house and accused demanded Rs.4,00,000/- and thereafter the police rescued her daughter and at that time, the prosecutrix disclosed about offence of rape to her as well as to the police. The prosecutrix was sent to the Civil Hospital for medical examination. In her cross examination, she has admitted that she has never borrowed any amount from accused – Rajeshbhai @ Lalo. She also admitted that the prosecutrix had not gone for handing over tins of edible oil to the house of the accused, but they were apprehended from Gaytri temple. 16. Over and above the aforesaid oral evidence on record, the complaint came to be lodged by the complainant on 28.10.2011 before the Police Sub Inspector, Kanbha Police Station wherein the complainant, inter alia, stated that on 11.10.2011 she had borrowed Rs.40500/- from accused – Rajeshbhai @ Lalo as he was her landlord and the said amount was to be returned on 20.11.2011. It is further stated that on 22.10.2011 while she was nearby Saibaba temple along with her sister, at that time, accused Tina called the prosecutrix to her house and thereafter, she was confined by the accused till she pays the borrowed amount and thereafter her sister Kiran visited the prosecutrix at the house of the accused and thereafter accused beaten her as well as her sister and thereafter on the same day, her parents and her brother and sister Jigna were also visited her and accused beaten all of them and thereafter on 23.10.2011 while her sister Kiran came to meet her, at that time, she was also confined and she was made to sleep with Ramesh Darji, but he had not done anything with her. Thereafter, on 24.10.2011 both of them were confined there and during nocturnal hours, accused – Rajeshbhai @ Lalo at about 3.00 O’clock took the prosecutrix in varandah and established physical relationship twice in between 3.00 am and 6.00 am and thereafter upto 28.10.2011, they were wrongfully confined in the same house and were severally beaten as well as her parents and brother were also threatened for recovery of money. 17. 17. While the prosecutrix was taken before the Doctor for medical examination, she inter alia narrated that as she was tenant of accused – Rajeshbhai @ Lalo, his wives took her on 22.10.2011 to her house and she was made to sleep with him during night and in between 3.00 am and 6.00 am accused – Rajeshbhai @ Lalo raped her twice and thereafter on 28.10.2011 the police rescued her. The prosecutrix further narrated that on 24.10.2011 at about from 10.00 pm to 4.00 pm 5 to 6 persons assaulted her by giving kick and fist blows. 18. On overall evaluation of the aforesaid evidence on record, indisputably, except oral testimony of the prosecutrix, no sort of corroborative piece of evidence is available on record. It can also be noticed that the prosecutrix had made several improvements and emblishments while deposing before the learned trial Court and virtually, she had stated different story than as has been stated by her while lodging the complaint and therefore, her entire testimony had become doubtful and unreliable. 19. On overall evaluation of the evidence as regards to the offence of rape, in the FIR, it was alleged that the incident in question had occurred on 24.10.2011 in between 3.00 and 6.00 O’clock during nocturnal hours, whereas in the history before the Doctor, the prosecutrix herself has stated that on 24.10.2011 in between 10.00 and 4.00 pm, she was beaten by accused Rajesh in the presence of five to six persons, whereas before the Doctor, the prosecutrix has stated that on 22.10.2011, she was subjected to rape during nocturnal hours twice though Kiran - sister of the prosecutrix claimed that she was appraised on the same night as regards to the incident and she also claimed that she was allowed to go to home but she did not state regarding the incident of rape either to her parents or brother and other sister and kept mum till her statement came to be recorded. 20. On making conjoint reading of the evidence of all the witnesses, there appears no uniformity in the evidence as regards to date and time of the alleged incident of rape over the prosecutrix. Similarly, regarding place of incident of rape also, different versions are coming out from the mouth of the prosecutrix herself as well as from the mouth of her sister Kiran. Similarly, regarding place of incident of rape also, different versions are coming out from the mouth of the prosecutrix herself as well as from the mouth of her sister Kiran. On one hand, the prosecutrix deposed that she was made to sleep on open Mandap and thereafter, the accused Rajesh committed rape over her and on the other-hand, she has stated that she was confined in the room and in the room, rape was committed over her person and thirdly, she stated that she was taken in varandah and thereafter rape was committed on her person. 21. As regards to the offence of wrongful confinement, there appears no uniformity in the evidence of the witnesses. As per the FIR, it is emerging out that the prosecutrix alleged wrongful confinement for about seven days from 22.10.2011 to 28.10.2011, whereas in her deposition, she has stated that for about eleven days. The same story is also stated by other witnesses about confinement of eleven days though prosecutrix as well as other witnesses testified that the prosecutrix and her sister came to be rescued from the accused by the police, but nowhere from the investigation papers, it is revealing that they came to be rescued by the police. 22. This Court has minutely gone through the oral evidence on record of all the witnesses in the presence of learned APP Ms.Punani. On meticulous examination of the evidence on record, there appears no uniformity in the evidence of all the witnesses including prosecutrix as regards to incident of alleged rape, place of rape, date and time of rape, period of wrongful confinement, place of delivery of oil tins and amount of borrowed. 23. It can be seen that learned trial Court, while appreciating the evidence on record, convicted the four accused for the offence of alleged extortion as well as beating, though at the same time, found guilty the present appellants accused for the commission of offence of rape along with the allied offences. 24. Accused Ushaben Rajeshbhai Patel and Sarmishthaben @ Tina Rajeshbhai Patel are the wives of accused Rajeshbhai @ Lalo Patel. All these three accused have been convicted for offence of rape. 24. Accused Ushaben Rajeshbhai Patel and Sarmishthaben @ Tina Rajeshbhai Patel are the wives of accused Rajeshbhai @ Lalo Patel. All these three accused have been convicted for offence of rape. So far as role of the aforesaid both the ladies accused is concerned, it is alleged that they have taken the prosecutrix to the house of accused Rajeshbhai for recovery of amount so advanced to the prosecutrix and thereafter, accused Rajesh alleged to have committed offence of rape, at that time, though the presence of both the ladies had been shown by the prosecutrix in her testimony which had not been stated in the complaint. Even, otherwise, in view of the decision in the case of Priya Patel Vs State of MP and another, reported in (2006) 6 SCC 263 , woman cannot be convicted. Even, against the accused Rajesh @ Lalo, the prosecution has miserably failed to bring on record the clear, concrete and clinching evidence to link him with the crime in question except oral testimony which is also found to be in tainted form as she had made lots of improvements and embellishments in her testimony. As stated above, virtually, testimony of the prosecutrix is required to be totally rejected. In that view of the matter, neither any sort of supportive or corroborative piece of evidence is available on record to link the accused with the crime in question as the prosecution has not produced the report of serologist to link the accused with the crime in question. 25. This Court also finds that conduct of the family members of the prosecutrix i.e. parents, brother and sisters is highly unnatural though they stated that the prosecutrix and Kiran were confined for about 10 to 11 days and all of them were beaten by the accused, but they did not lodge any complaint before the police for about 10 to 11 days. The evidence of all the witnesses are not getting any sort of medical corroboration though all the witnesses had deposed that they were beaten by the accused on 24.10.2011 which has not been getting any corroboration from any medical evidence as no injury was found over the person of any of them. Under the circumstances, learned trial Court has fallen in error in convicting the respondents accused considering the nature of evidence on record. 26. Under the circumstances, learned trial Court has fallen in error in convicting the respondents accused considering the nature of evidence on record. 26. In above view of the matter, this Court is of the considered opinion that learned trial court was not justified in convicting the respondents accused of the charges leveled against them. This Court finds that the findings recorded by learned trial court are not just and proper and in recording the said findings, illegality or infirmity has been committed by it. 27. In the result, appeals are required to be allowed and accordingly, both the appeals stand allowed. The impugned judgment and order of conviction dated 6.9.2016 passed by learned Additional Sessions Judge, Court No.9, Ahmedabad in Sessions Case No.286 of 2013 is quashed and set aside qua the present appellants. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.