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2021 DIGILAW 38 (GUJ)

Imran Haji Ramjani Multani v. State of Gujarat

2021-01-13

A.Y.KOGJE

body2021
ORDER : 1. RULE. Learned APP waives service of Rule on behalf of the respondent-State. 2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being I-CR No. 11187007201253 of 2020 registered with Santrampur Police Station, Mahisangar for offence under Sections 376D, 376(2)(n), 377, 506(2) and 507 of the Indian Penal Code. 3. Learned senior advocate Mr. Asim Pandya with learned advocate Mr. Aditya Bhatt, appearing on behalf of the applicant submits that the bail application deserves consideration on the ground that the version given by the prosecutrix is not consistent when the statement of the prosecutrix and the medical history recorded by the Medical Officer is compared. It is submitted that the versions are quite contradictory and virtually the accused No. 1 has been exonerated from the reading of version recorded by the Medical Officer. It is submitted that the statement of the prosexutrix can also be doubted as the same is not supported by the medical evidence. Even after filing of the charge-sheet, there is nothing on record to suggest that forcibly sexual intercourse had taken place as though the investigation was launched almost immediately; there is no sign of injury or presence of spermatozoon either on the cloth of the accused or the prosecutrix. 3.1 He submitted that the version of the prosecutrix can also be doubted as at different stages she had described the place of incident differently; thereby putting to doubt the consistency in her version. It is submitted that not only the version of the victim, but also supporting witnesses put to doubt the case of the prosecution, as husband of the prosecutrix has stated that the prosecutrix is staying at her maternal house for past 10 to 15 days, whereas mother of the prosecutrix in her statement has stated that the prosecutrix has not visited the house of the husband for past three months. Learned senior advocate submitted that primarily the FIR is registered on account of financial aspect as in the FIR itself, the applicant has stated that she was induced on account of money promised by accused No. 1 for entering into relationship and therefore, for substantial period, the relationship was in the nature of consensual relation more particularly when the prosecutrix is aged around 38 years married and having two children. Learned senior advocate even went to the extent of castigating the prosecutrix to be a lady of easy virtue. It is submitted that the applicant's case also deserves consideration on the ground of improper investigation as during the investigation, no video recording is found which the prosecutrix has alleged that the accused persons were threatening her and blackmailing her by using obscene videos/photos. It is submitted that no CDR is on the record of investigation to substantiate the version of the prosecutrix that all the accused persons frequently calling her and harassing her. Learned advocate has thereafter, relied upon the judgment of the Apex Court in support of his contention that the sole testimony of the prosecutrix can be the basis of conviction, but such version of the prosecutrix must be able to inspire confidence in the mind of the Court and should also be supported by surrounding circumstances. If the surrounding circumstances are highly improbable and relied version of the prosecutrix then the conviction cannot be based on sole testimony of prosecutrix. The applicant has relied upon the judgments of Apex Court in the case of Sadashiv Ramrao Hadbe vs. State of Maharasthra and Others, (2006) 10 SCC 92 , Ram Murti vs. State of Haryana, (1970) 3 SCC 21 , Krishna Kumar Malik vs. State of Haryana, (2011) 7 SCC 130 , Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57 and upon unreported judgment in the case of Santosh Prasad @ Santosh Kumar vs. State of Bihar in Criminal Appeal No. 264 of 2020. 4. As against, this, learned Additional Public Prosecutor has strongly opposed the application contending that the allegation is of a serious nature of gang rape, where the version of the prosecutrix herself in statement is consistent insofar as actual offence is concerned. It is submitted that on each of the occasions, the prosecutrix has clearly described the manner in which the offence has taken place indicating that the accused No. 1 and accused No. 2 took turn in committing the rape and also offence of unnatural sex. It is submitted that the allegation of unnatural sex is only against the present applicant and not against the accused No. 1. Therefore, the description of offence given by the prosecutrix is required to be accepted as truthful. It is submitted that the allegation of unnatural sex is only against the present applicant and not against the accused No. 1. Therefore, the description of offence given by the prosecutrix is required to be accepted as truthful. 4.1 It is submitted that the arguments of merely contradiction in the version of the witnesses cannot be considered at the stage of bail as it would be in the realm of appreciation of evidence. It is submitted that attempt on the part of the applicant is to create doubt that the incident never took place and if at all it was consensual in nature. He draws attention of this Court to the medical examination of the accused persons and the history recorded by the Medical Officer, wherein the accused No. 1 has stated that the victim was taken by him to his house for his friend i.e. the present applicant. Similarly, the medical history recorded by the Medical Officer given by the applicant himself also indicates the date and time on which the victim was brought to the house of the accused No. 1 and when he went to the house of his friend, the victim was present. Even he has denied to have any sexual intercourse with her. It is therefore, submitted that the fact of the applicant and the prosecutrix be at the same place at the same time of the offence cannot be denied and at this stage the Court may not take into consideration the version of the accused persons, but due weightage is required to be given to the version of the prosecutrix. It is submitted that the FSL Officer had visited the scene of offence and noted the description in his report of examination and the tablet wrappers were found by the side of the bed on which the offence took place and also alongwith the torn wrappers, other tablets intact were also fond and such medicines have some relation with the sexual intercourse and therefore, the scene of offence also supports the version of the prosecutrix. 4.2 The learned APP has draws attention of this Court to the statements of the neighbours to indicate that the premises where the incident took place was an ancestral property belonging to the father of the accused No. 1, where the accused No. 1 and his friends were frequently visiting. 4.2 The learned APP has draws attention of this Court to the statements of the neighbours to indicate that the premises where the incident took place was an ancestral property belonging to the father of the accused No. 1, where the accused No. 1 and his friends were frequently visiting. It is therefore, submitted that the offence which is of serious nature, the Court may not exercise the discretion in favour of the applicant. 5. In rejoinder, learned senior advocate for the applicant submitted that none of the facts as listed here are established i.e. (1) Factum of Threats to the accused, (2) Alleged Video on the basis of which the prosecutrix was alleged to have been blackmailed, (3) Presence of the prosecutrix at the place of incident, (4) Application of force, (5) Penetration, (6) Penetration by both the accused, (6) Corroborating Medical Evidence establishing the factum of intercourse (7) Bodily marks, tears, injuries, presence of semen, saliva, pubic hair etc, on the cloths of Victim, or accused persons, or even from the bed-sheet of the alleged place; and therefore, in view of no corroborating evidence to have been found through the evidentriary material placed in the charge-sheet; and also in view of the fatal contradictions of the version of prosecutrix herself, between the version in the FIR and the medical statement, and therefore, prosecution story does not inspire confidence and therefore, bail requires to be granted. 6. The Court has heard learned advocates for the parties and perused the documents placed on record. The FIR is registered for offences punishable under Sections 376D, 376(2) (n), 377, 506(2) and 507 of the Indian Penal Code for an incident took place on 02.10.2020 and was registered on 03.10.2020 which indicates that the FIR has been promptly registered by the prosecutrix. In the FIR, two accused persons are named. The present applicant is named as accused No. 2. The accused No. 1 has not preferred bail application and is in custody. 7. In the FIR, it is alleged that the accused persons, for the last 15 days, have been threatening the complainant over the phone and compelled her to come at the house of accused No. 1 and both the accused laid down the victim on the bed and committed repeated rape on her against her will one by one. 7. In the FIR, it is alleged that the accused persons, for the last 15 days, have been threatening the complainant over the phone and compelled her to come at the house of accused No. 1 and both the accused laid down the victim on the bed and committed repeated rape on her against her will one by one. Further, on 02.10.2020, the accused persons again threatened the complainant to death over the phone and called her at the room situated in the second floor of accused No. 1 and laid the complainant on the bed by holding her and accused No. 2 committed sex by penetrating his penis into the mouth the of complainant and thereafter, both the accused committed rape on the complainant against her will and threatened the complainant over the phone as well as directly that if the complainant informs about this to her family members, they would kill her. During the course of investigation, panchnama has been carried out including the scene of offence which was examined by the FSL. The FSL report of the place would indicate that in the room where the alleged offence took place, the FSL has recovered a torn wrapper of tablet and also intact wrapper of the tablets, wherein on the tablet it is written as under:- “........Sildenafil Citrate....Viagra Fil.....” 8. The accused persons who have been examined in their medical history has stated as under:- “Anitkhan S/o Jarjiskhan Pathan, H/o by accused - On date 02.10.2020 at 9:30 p.m. victim came to my house call by me for my friend Imran Hahiramani Multani. I have not taken sexual intercourse with her. Imran Hajiramani Multani, H/o by accused - On date 02.10.2020 at 9:30 p.m. Victim came to my friend house call by me friend Anitkhan Jarjiskhan Pathan. I went to my friend house victim was there. I have not taken sexual intercourse with her.” 8.1 What is stated that the accused persons conscience with the history given by the prosecutrix in her very first version recorded in the FIR. Therefore, prima-facie, the Court is inclined to believe that the incident of offence has taken place and the version of the prosectrix with regards to commission of offence is required to be believed at this stage. Therefore, prima-facie, the Court is inclined to believe that the incident of offence has taken place and the version of the prosectrix with regards to commission of offence is required to be believed at this stage. The submission of learned advocate for the applicant with regards to the contradictory version of the prosecutrix cannot be taken into consideration at this stage as the contradictions which are sought to be pointed out by the applicant with regards to the place where the incident took place and the history given by the prosecutrix before the Medical Officer, in the opinion of the Court, are not of such a nature which would falsify the question of offence in its entirety. What is recorded by the Medical Officer in the history given by the prosecutrix is the evidence which has to be established by the author of such evidence. Meaning thereby, what is entered as a history will have be established proved or disproved when the author of this evidence will step into the witness box. At the stage of bail, the evidence that has come on record under the authorship of supporting witnesses cannot be considered to conclude that the version of the prosecutrix is contradictory version. 9. With regards to the argument that the sole testimony of the prosecutrix can be the basis for conviction provided the version of the prosecutrix inspires confidence of the Court where the evidence had witness of sterling quality can only be decided when the witness steps into the witness box. The sterling quality of the prosecutrix cannot be exercised which the Court in preempt to draw conclusion that the prosecutrix version is not reliable. 10. In this connection, the reliance placed by the applicant in case of Sadashiv Ramrao (Supra), wherein the Apex Court has held as under: “It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and believe the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and believe the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. The aforesaid judgment is rendered at the stage of appeal preferred against the judgment of Division Bench of Bombay High Court after the appellant therein was found guilty of the offence and that the Court had occasion to peruse the version of the prosecutrix to test reliability.” 11. Similarly, in case of Ram Murti (Supra), the Apex Court has held as under: “The prosecutrix has made several divergent statements. Keeping in view the medical evidence which shows that the prosecutrix had been used to sexual intercourse, in order to accept her statement that she was compelled, threatened, or otherwise induced to go with the appellant, there should, in our opinion, be corroboration of some material particular from some independent source and her bare statement cannot be considered sufficient to sustain the appellant's conviction.....There is thus no evidence on the record on which the offence under Section 366 can be sustained against the appellant. The appeal is, therefore, allowed and the appellant acquitted.” The aforesaid judgment was also at the stage of considering the conviction recorded, where the possibility of falsely implicating the accused persons by herself or at the instance of Investigation Officer was being examined. 12. The appeal is, therefore, allowed and the appellant acquitted.” The aforesaid judgment was also at the stage of considering the conviction recorded, where the possibility of falsely implicating the accused persons by herself or at the instance of Investigation Officer was being examined. 12. In case of Santosh Prasad (Supra), the Apex Court has held as under:- “When the conviction is based on the sole testimony of the prosecutrix and the medical evidence does not support the case of the prosecution/prosecutrix and the deposition of the prosecutrix is full of material contradictions and that there was already a dispute between the accused and the family members of the prosecutrix and no independent witnesses have been examined, it is not safe to convict the accused solely on such testimony of the prosecutrix-PW-5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentenced imposed on the appellant and accused is to be given the benefit of doubt.” It further stated that: “From the impugned judgments and orders passed by both courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW-5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition PW-1, it has come on record that there was a land dispute going on between both parties. Even in the cross-examination even the PW-5 prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW-7 Dr. Renu Singh submitted injury report. In the injury report, no sperm, as well as RCB and WBC, were found. Dr. Renu Singh, PW-7 Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has that there was no physical or pathological evidence of rape. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has that there was no physical or pathological evidence of rape. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.” In the aforesaid judgment, the Court was examining the appeal against the conviction confirmed by the High Court of Patna. 13. The Court having considered the evidence which is on record, prima-facie, the allegations which are serious in nature are required to be believed as the contradiction pointed out even if believed, is of such a nature that does not disturb the version of the prosecutrix insofar as the commission of the offence is concerned. The version of the prosecutrix clearly attributes the serious role to the applicant for participating in the sexual intercourse with the other accused and a specific attribution to offence of unnatural sex against the present applicant and therefore, the discretion cannot exercised in favour of the applicant. The application therefore deserves to be and is hereby dismissed. Rule is discharged.