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2022 DIGILAW 1263 (GUJ)

STATE OF GUJARAT v. VAGHARI SURESHBHAI RATNABHAI

2022-10-07

RAJENDRA M.SAREEN, S.H.VORA

body2022
JUDGMENT : RAJENDRA M. SAREEN, J. 1. Present Criminal Appeal has been preferred by the appellant-State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 01.06.1996 passed by the learned Additional Sessions Judge, Mehsana Camp at Patan in Sessions Case No. 166 of 1995 acquitting the respondent-original accused from the offence punishable under section 376 of Indian Penal Code, however, convicted the respondent for the offence punishable under section 376 read with section 511 of Indian Penal Code and awarded punishment of Rigorous Imprisonment for a period of two years with fine of Rs. 500/- and in default, further Rigorous Imprisonment for a period of one month. 2. Factual matrix of the prosecution case is as under: As per the case of the prosecution, the allegations levelled in the FIR being CR No. I-73 of 1995 are that on 16.04.1995 at around 2.00 P.M. while Bhartiben Jagmalbhai-complainant went to graze the goats on the bank of river near Hardeshwar Mahadev, the accused came there and asked her to have physical relation with her, to which, the complainant denied. It is further alleged in the complaint that, however, the accused forcibly committed rape on her and went away. After that at around 4.00 P.M. the complainant came back to her home but did not tell about the alleged incident to her parents and after 4 to 5 days, she narrated the alleged incident to her aunts-Lavangben and Manjuben and her grandmother-Tejiben and thereafter complaint came to be filed on 20.04.1995. 3. On the basis of the said complaint, investigation was started and during the investigation, the accused was arrested on 25.04.1995, statement of witnesses were recorded, panchnama of scene of offence was carried out and after through investigation, as there was sufficient evidence against the respondent-accused, Charge-sheet was filed in the court of learned Judicial Magistrate, First Class. As the offence committed by the accused person was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Sessions Case No. 166 of 1995. Thereafter, Charge was framed against the accused for the offence punishable under section 376 of Indian Penal Code. The accused person pleaded not guilty to the Charge and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the respondent-accused was recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charge levelled against him. Hence, the appellant-State of Gujarat has preferred the present Criminal Appeal challenging the judgment and order of acquittal. 4. Heard Ms. Divyangna Jhala, learned APP for the State and Mr. Nasir Saiyed, learned advocate for the respondent accused. 5. Ms. Divyangna Jhala, learned APP has vehemently submitted that the Sessions Court has committed a grave error in not believing the deposition of the prosecutrix and witnesses examined by the prosecution. She has further submitted that victim has supported the case of the prosecution and has stated that the accused has committed rape on her. She further submitted that the Sessions Court has erred in acquitting the respondent-accused from the charge levelled against him. She has further argued that the prosecution has proved that the respondent has committed offence under section 376 of Indian Penal Code. She has further argued that Sessions Court has acquitted the respondent accused merely on some minor contradictions and omissions in the evidence of the prosecutrix and witnesses. She has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. She has further argued that the offence punishable under section 376 of Indian Penal Code, is made out, however, the same is not believed by the Sessions Court. She has further argued that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the accused erroneously. She has requested to allow the present appeal. 6. Mr. Nasir Saiyed, learned advocate for the respondent-original accused has vehemently submitted that the case of the prosecution is not supported by medical evidence. The conduct of the prosecutrix is unnatural. There is inordinate delay of 4 days. The evidence of the prosecutrix does not inspire confidence. There is no eye witness. 6. Mr. Nasir Saiyed, learned advocate for the respondent-original accused has vehemently submitted that the case of the prosecution is not supported by medical evidence. The conduct of the prosecutrix is unnatural. There is inordinate delay of 4 days. The evidence of the prosecutrix does not inspire confidence. There is no eye witness. The evidence of the complainant is contradictory to the other evidence of the prosecution placed on record. There is hardly any substance in the submissions of learned APP. There is no cogent and convincing evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecutrix and the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal. 7. Heard advocates for the respective parties and perused the impugned judgment and order of acquittal and re-appreciated the entire evidence on record. 8. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. 9. In the case of rape, it is cardinal principle of law that evidence of the victim/prosecutrix is the most important evidence coupled with the medical evidence and if the evidence of the prosecutrix/victim inspires confidence and is far away from the shadow of doubt, sole evidence of the prosecutrix also can be relied upon. It also cannot be denied that in case of rape, generally no eye witness is available. It also cannot be denied that in case of rape, generally no eye witness is available. Considering these principles of law, here in this case whether the prosecutrix herself can be said to be sterling witness and her evidence can be solely relied upon coupled with the medical evidence, is to be re-appreciated. 10. Dr. Kantilal Ishvarlal Patel PW-1 Medical Officer has been examined at Ex.10. He has examined the victim/prosecutrix on 21.04.1995 at 1.05 P.M. He has stated in his Examination-in-chief that the victim was sent to him with Police Yadi Ex.11 having complaint of pain in urine and pelvic. He has taken vaginal swab and has sent it to laboratory for testing and as per the report, there was live spume. He has stated that as per the history of the patient, 5 days prior to the examination, the victim was raped by the accused. Upon examination of the victim, it was found that she has been raped 3 to 4 days prior to the examination and Certificate to that effect was issued by the Doctor, which is at Ex.30. Here in this case, the Doctor has supported the case of the prosecution based upon the history of the victim in the examination. In the cross-examination, it has been admitted by the Medical Officer that when he examined the victim, there was pus coming out from her vagina, which can be due to the infection. There was complaint of burning in the urine, which also can be due to the infection. It is admitted by the Doctor that urine infection and sex intercourse has no relation with each other. Pain in pelvic and intercourse has no connection, as admitted by the Doctor. It is also admitted by him that the five complaints which were made by the victim before him have no relation with sex/intercourse. It comes out on record that the Doctor has not taken vaginal swab and sent it for medical analysis. As such, the Doctor has stated false facts in his Examination-in-chief regarding presence of live spume on the basis of a report of medical analyzer, which has never been received. It has also come on record in the cross-examination that the Doctor has never examined whether the hymen was ruptured and what was the colour of the hymen and whether there was swelling in the hymen or not. It has also come on record in the cross-examination that the Doctor has never examined whether the hymen was ruptured and what was the colour of the hymen and whether there was swelling in the hymen or not. No finger test has been done by the Doctor, as admitted by the Doctor in his evidence. He has also admitted that if anybody forcibly makes sexual intercourse then there must be swelling and redness on the vagina. The Doctor has not mentioned anything regarding swelling or redness in his certificate. As such, as rightly appreciated by the learned Sessions Judge, medical evidence, which is one of the important evidence to prove the offence of rape, has not supported the case of the prosecution. The version of the complainant and the evidence of the Doctor is not in accordance with the principles of medical jurisprudence. Perusing the entire evidence of the Doctor, it does not come on record that rape was committed upon the victim. In the evidence of the Doctor, he has stated that when he examined the victim, there were dry and sticky stains on the clothes of the victim. 11. From the evidence of the investigating officer Mr.Khimjibhai, it is revealed that the clothes of the victim were seized by the panchnama Ex.23 and were sent to FSL. FSL Report is produced at Ex.28 in which, Sample No. 11 - Peti-coat sent for analysis shows that the blood and semen are absent. 12. As such, the victim has stated before the Doctor that after the incident, she has not taken bath nor have changed the clothes and her clothes were stained with sticky fluid and same clothes were seized by the investigating agency, however, the clothes of the victim shows absence of blood and semen. This aspect also falsifies the theory of rape upon the victim and there is shadow of doubt whether rape has been committed or not. 13. As per the say of the victim, there was blood and other stains on her pubic hair. As per the complainant, she has not taken bath after the incident. Sample was sent vide Ex.6 to the FSL. But, no blood or semen found in the pubic hair sample. It is principle of law that when the prosecution case rests only on the statement of prosecutrix/victim, it should be corroborated by scientific evidence also. As per the complainant, she has not taken bath after the incident. Sample was sent vide Ex.6 to the FSL. But, no blood or semen found in the pubic hair sample. It is principle of law that when the prosecution case rests only on the statement of prosecutrix/victim, it should be corroborated by scientific evidence also. Here in this case, it is on record that the scientific evidence is totally contrary to the narration of the complainant regarding stains of blood and hymen. As such, this aspect of medical/scientific evidence creates doubt regarding commission of the offence. 14. Now, considering the evidence of the prosecutrix, the incident has happened 5 days prior to the filing of the complaint and she reiterated it on 5th day to her aunts-Lavangben and Manjuben and her grandmother-Tejiben. As per evidence of the prosecutrix, accused was known to her. She was threatened by the accused. There was penetration by the accused. As per the say of the complainant, it took 5 minutes for penetration. At that time, the incident took duration of 15 to 20 minutes and she was sleeping down. It is also the say of the complainant that she had shouted initially but her mouth was shut by the accused by cloth. No such cloth has been seized in this case. It is also evident to note that she was pulled down by the accused upto 10 feet on the ground, which was thorny and rough and her body was injured on the back due to the thorns and there were abrasions and browses and she was shouting at that time, if it is believed that the victim was pulled down for 10 feet on thorny surface by the respondent and she had sustained injury on her back, then also, no such injuries on the back of the victim have been found by the Doctor as per Certificate Ex.30, which also creates doubt regarding story of the prosecutrix. As per the say of the victim, she had injured the accused by nail scratch. However, considering Certificate Ex.30, no such injury is found in the medical certificate. Again at the cost of repetition, as stated above, the offence of rape upon the prosecutrix is not cogently and convincingly proved. 15. Except the prosecutrix and medical evidence, no other evidence has been brought on record. The prosecution has examined one Leelaben Babubhai Ex.19. However, considering Certificate Ex.30, no such injury is found in the medical certificate. Again at the cost of repetition, as stated above, the offence of rape upon the prosecutrix is not cogently and convincingly proved. 15. Except the prosecutrix and medical evidence, no other evidence has been brought on record. The prosecution has examined one Leelaben Babubhai Ex.19. As per her say she was working in Brahmadeshwar temple and she had heard screamed and she had gone over there and she had seen that one boy from behind who was running and hence he has not identified the boy. She further states that she helped the victim and took her to her parents’s house. Considering the evidence of Leelaben, she has turned hostile. However, in the cross-examination she has admitted that the proxecutrix was unconscious, she brought her to the temple and gave her water but she had not talked with the prosecutrix who stayed for 1½ hours with her. Even she has not stated anything regarding the incident to the aunts-Lavangben and Manjuben and her grandmother - Tejiben. The evidence of Leelaben does not inspire any confidence, because though as per her say she had helped the prosecutrix, she has not stated about the incident to the relative of the prosecutrix nor anybody. Her conduct is unnatural. Under the circumstances evidence of Leelaben also cannot be relied upon. 16. Other witness i.e. mother of the prosecutrix is examined at Ex.20. Her evidence is also of such a nature which does not help the case of the prosecution. One more aspect which falsifies the case of the prosecution and the story of the prosecutrix is that as per the case of the prosecution, the alleged incident occurred on the bank of Sarasvati river near Hardeshvar temple, however, panchnama which is drawn at Ex.18 is reveals that the incident has occurred Brahmadeshwar Mahadev temple. Both the places are different and distance between both the places is 1 KM. As per the complaint, the place of offence is Hardeshvar temple, but in the deposition, the prosecutrix has not stated about Hardeshvar. Both the places are having roads which are public roads. The house of the complainant and the accused are near the temples. As such, there is inconsistency regarding place of incident. 17. As per the complaint, the place of offence is Hardeshvar temple, but in the deposition, the prosecutrix has not stated about Hardeshvar. Both the places are having roads which are public roads. The house of the complainant and the accused are near the temples. As such, there is inconsistency regarding place of incident. 17. As such, considering the entire evidence on record and perusing the evidence of prosecutrix, who can be termed to be sterling witness, coupled with the medical evidence, the incident of rape cannot be said to have been proved beyond reasonable doubt and the entire evidence on record is rightly appreciated by the trial court. So far as the age of the prosecutrix, which has been brought on record, which is 13 years at the time of incident, the learned Sessions Judge has rightly appreciated and given finding to that effect that the age of the prosecutrix, in light of the evidence of the Doctor coupled with the reporting by radiologist basis on the basis of X-ray plates, the age of the prosecutrix was 14 to 16 years or more than 16 years. This finding also does not require any interference. 18. Considering the entire evidence on record oral as well as documentary, we are of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgment delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defect or cannot be said to be contrary to the evidence recorded. 19. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan vs. Ram Niwas, (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under: “6. This Court has held in Kalyan vs. State of U.P. (2001) 9 SCC 632 : “8. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan vs. Ram Niwas, (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under: “6. This Court has held in Kalyan vs. State of U.P. (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed: “27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on Page 157 of “The Proof of Guilt” by Glanville Williams, second edition: “I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.” 28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793 , as is clear from the following observations: “Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between “may be” and “must be” is long and divides vague conjectures from sure considerations.” “9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court.” 8. In Arulvelu and Another vs. State, (2009) 10 SCC 206 , the Supreme Court after discussing the earlier judgments, observed in Para No. 36 as under: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 20. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh and Others vs. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan alias Jardar Khan vs. State of Madhya Pradesh, (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 21. Scope of appeal against acquittal is well laid down in case of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , it was observed: “42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge. (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as “substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes” etc. (3) Various expressions, such as “substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes” etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ’flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 22. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 23. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed.