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2024 DIGILAW 1530 (GUJ)

Dahiben Pravinbhai Raval v. State Of Gujarat

2024-07-08

CHEEKATI MANAVENDRANATH ROY, UMESH A.TRIVEDI

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ORDER : (Umesh A. Trivedi, J.) : [1] This Appeal under proviso to Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), is filed by the appellant – victim who is aged about 40 years and mother of three children, married with witness – Pravinbhai Raval since years, for the alleged offence punishable under Sections 376(1), 506(2) and 507 of the Indian Penal Code against the respondent – accused who came to be acquitted vide impugned judgment and order of acquittal dated 13.04.2023 passed by the Additional Sessions Judge, Sabarkantha- Himmatnagar in Sessions Case No.17 of 2020. [2] On filing of the appeal and when it came up for hearing before the Court, we had inquired from the learned APP whether State wants to prefer any appeal against the impugned judgment and order of acquittal or not. Vide communication dated 19.06.2023 signed by the Under Secretary to the State, Legal Department, addressed to the office of Public Prosecutor, Sabarkantha, stating that the State does not consider it to be appellable order and therefore, they determined not to prefer an appeal against the same. Copy of the said communication is produced by the learned APP, which is ordered to be taken on record. [3] As per the case of the prosecution, as coming out from the impugned judgment and order, the respondent – accused promised the victim to maintain her and children if she has physical relation with him. Based on the said promise, before a year she was taken to Katvada, Taluka- Dahod and had physical relation with the victim and thereafter, she was dropped back at her home. It is further the case of the prosecution that thereafter repeatedly accused coming to her house and insisting her to stay with him and under the threat of dire consequences, on 17.09.2019, she was called at Village – Ranasan and she was made to sit in a Wagon R car and taken to Village – Shamalpur where again accused had physical relation with her, without her consent. It is further the case of the prosecution that accused repeatedly calling her on mobile, pressurizing her to come to him as and when called or else she and her children would be killed and therefore, an FIR in the present case has come to be filed on 11.10.2019 before P.S.I., Himmatnagar Rural Police Station. It is further the case of the prosecution that accused repeatedly calling her on mobile, pressurizing her to come to him as and when called or else she and her children would be killed and therefore, an FIR in the present case has come to be filed on 11.10.2019 before P.S.I., Himmatnagar Rural Police Station. [4] On registration of the FIR, an investigation was carried out into the offence and charge-sheet has come to be filed in the Court of 3rd Addl. Chief Judicial Magistrate, Himmatnagar which was numbered as Criminal Case No.6296 of 2019. Since learned Magistrate did not have jurisdiction to proceed with the trial, he committed the case to the Court of Sessions vide order dated 17.02.2020, which was numbered as aforesaid before the Sessions Court. [5] To prove the case against the respondent – accused, prosecution examined nearly 13 witnesses. Produced and proved nearly 25 documents. On closure pursis filed, the arguments of both the sides were heard, after recording further statement under Section 313 of ‘the Code’ of the accused. [6] On hearing the arguments, the learned Judge, on appreciation of evidence and the documents produced, passed aforesaid judgment and order acquitting the respondent – accused, which is under challenge. [7] Heard Mr. Rahul K. Dave, learned advocate for the appellant. He has vehemently submitted that though victim has not supported the case of the prosecution, there are other witnesses, based on whose evidence, an offence can be said to be proved. Therefore, according to his submission, the judgment and order of acquittal passed by the learned Judge is erroneous. He has further submitted that even history given before the Doctor, who have been examined before the Court, by the victim and the accused, goes to show that accused entered into physical relationship with the victim pursuant to allurement on promise to maintain her and children. Therefore, he has submitted that even if victim has not supported the case of the prosecution, it can be proved through the independent witnesses before whom she had disclosed the history wherein very same assertion, as made in the FIR, is stated. He has further submitted that when the alleged act of having physical relation with the accused on promise and allurement to maintain her and her children, if accused fails to fulfill the same, it cannot be said to be an act with the consent of the victim. He has further submitted that when the alleged act of having physical relation with the accused on promise and allurement to maintain her and her children, if accused fails to fulfill the same, it cannot be said to be an act with the consent of the victim. He has further submitted that there are three further witnesses being husband, mother and brother of the victim, who have supported the case of the prosecution and therefore, prosecution has successfully proved the guilt of the accused and therefore, learned Judge has committed grave error in appreciation of the same. Therefore, it is submitted that the judgment and order of acquittal recorded by the learned Judge is erroneous, illegal and requires to be quashed and set aside. [8] Vide order dated 26.06.2024, we had called for the records and proceedings from the Trial Court, which is received by this Court and we have perused the same. [9] Though Mr. D.K.Patel, learned advocate has filed his appearance on behalf of the respondent – accused and learned APP Ms. Vrunda Shah, appears for the respondent – State, since we are not convinced on the evidence led before the Court and the documents produced and proved so as to admit the appeal, they are formally heard. [10] As such, according to the submission of learned APP, since State has considered it to be non-appellable order, he has submitted that Court may pass an appropriate order. Mr. D.K.Patel, learned advocate for the respondent – accused has submitted that since there is no case made out as victim herself has not supported the case of the prosecution, even if the story of physical relation with her is believed to be true, it can be safely concluded that it is with the consent of her and therefore, there is no offence of rape can be proved against the accused. He has further submitted that as coming out from the evidence of the victim herself, she had relationship with the accused even prior to her marriage with witness – Pravinbhai. He has further submitted that since she has not supported the case of the prosecution, even deposition of her husband, mother and brother, who derived knowledge based on information supplied by her, which is hear-say evidence and in absence of evidence of victim herself, it cannot be said to be proved. He has further submitted that since she has not supported the case of the prosecution, even deposition of her husband, mother and brother, who derived knowledge based on information supplied by her, which is hear-say evidence and in absence of evidence of victim herself, it cannot be said to be proved. He has further submitted that hear-say evidence in itself is very weak piece of evidence, based on which no conviction can be recorded. Therefore, he has submitted that learned Judge has assigned good reasons which require no interference, that too, in this appeal challenging the judgment and order of acquittal. [11] Having heard the learned advocates for the appearing parties and considering the evidence led before the Court and the documents produced and proved, a scrutiny of the same revealed examination of nearly 13 witnesses to prove the case against the accused of the offence alleged against him. Not only that, documents in the form of panchnama, medical certificate etc., are also on record. Examining in detail all the documents cumulatively along with the depositions recorded of the witnesses, it appears that it requires close scrutiny. [12] Taking up the deposition of the witnesses recorded in the case, let us examine the evidence led before the Court of PW-1 i.e. victim herself who has not supported the case of the prosecution. Not only she has not given any evidence in respect of the case pleaded by her in the FIR, even in the cross- examination also, she has disowned what is stated therein. However, the cross-examination by the defence of the victim, it revealed that she had relationship with him even prior to her marriage. It is further admitted that despite no incident, as narrated in the FIR, has occurred, she has been instigated to file a false complaint and therefore, it was filed. Thus, it is clear that she has given complete go by to her own version in the FIR as also any other documents even if it is reflected. Her statement recorded under Section 164 of ‘the Code’ at Exhibit -11, is also of no use when she has not supported the case of the prosecution. The statement recorded under Section 164 of ‘the Code’ cannot be treated as a substantive evidence and its use is limited to that of either corroboration or contradiction. Her statement recorded under Section 164 of ‘the Code’ at Exhibit -11, is also of no use when she has not supported the case of the prosecution. The statement recorded under Section 164 of ‘the Code’ cannot be treated as a substantive evidence and its use is limited to that of either corroboration or contradiction. [13] So far as deposition of Arvindbhai Ramanbhai Vadi (PW-7) Exhibit -36 is concerned, it is also of no use as it does not throw any light on the alleged incident or the offence. It only reflects that on 17.09.2019, respondent – accused who is distant brother-in-law of the witness passing through Ranasan bus stop in his white colored Wagon R car, one lady was sitting besides him. The witness was offered a lift in the same as he wanted to go to Modasa. While he seated in the Car, he was informed by the accused that this lady has to go to Shamlaji and thereafter, they will travel together at Modasa. As coming out from his deposition, he came to know after 5/6 months that they have relationship. From his evidence, the alleged offence of rape cannot be said to have been committed. His deposition does not disclose the identity of even lady sitting besides the accused. Even if it is so, he also came to know about relationship of both of them which rules out the theory of offence of rape having been committed by the respondent – accused. [14] Coming to the depositions of three Doctors, who examined the victim and the accused as well, (PW-2) – Dr. Ajaz Mohammedyusuf Vekariya is examined by the prosecution at Exhibit -16. He examined the accused on 16.10.2019 on a police yadi in connection with the aforesaid offence. He has deposed to before the Court that he had issued OPD case paper and filled in particulars therein. Ajaz Mohammedyusuf Vekariya is examined by the prosecution at Exhibit -16. He examined the accused on 16.10.2019 on a police yadi in connection with the aforesaid offence. He has deposed to before the Court that he had issued OPD case paper and filled in particulars therein. According to his deposition, when history was asked to the patient i.e. the accused, he stated that “victim since last 7 years staying at Gandhinagar (Abhiyapur) with him; for last one and half year they stayed Gandhinagar together; since last 7 years she is staying with me; during that time she had physical relation with me.” If this is to be considered, there is no case made out, as pleaded by the prosecution, of any rape having been committed, that too, against the wish and will of the victim. The said history is given by the accused himself, that too, before independent doctor who is examined by the prosecution. Though other two doctors examined by the prosecution, who examined victim, deposed to before the Court that victim herself gave history as per the case pleaded in First Information Report that on promise to maintain her and children, physical relationship entered into by the accused is believed to be true, no able bodied woman, that too, married and aged 40 years can be easily lured on such promise to have physical relationship. On the contrary, cross-examination of the victim herself which is consistent with the case of the defence through the independent Dr. Ajaz Mohammedyusuf Vekariya (Exhibit -16), that victim had relationship with the accused even prior to her marriage with Pravinbhai. [15] Not only that, the woman aged 40 years cannot be forcefully taken away in a car at a distant place, that too, for the purpose of committing an offence of rape. Therefore, even if history narrated by the victim herself before two doctors, as coming out from their depositions, it has no evidentiary value for the simple reason that it is nothing but a part and parcel of her prosecution case narrated in the FIR, to which, she has not supported the said case itself. Therefore, even if history narrated by the victim herself before two doctors, as coming out from their depositions, it has no evidentiary value for the simple reason that it is nothing but a part and parcel of her prosecution case narrated in the FIR, to which, she has not supported the said case itself. Even if, it is presumed that in a history before the doctor by the victim narrates about offence being committed, she entered into physical relationship with the accused against her will, when examined before the Court she has not supported that case and therefore, it has no evidentiary value, that too, based on which guilt of an accused can be recorded in this case. [16] Coming to the depositions of other three witnesses i.e. husband, mother and brother of the victim are concerned, they derived knowledge of the so-called incident based on the information supplied by the victim herself. Therefore, their evidence would become hear-say evidence. Again hear-say evidence in itself is very weak piece of evidence, based on which, no conviction can be recorded. However, in the present case, the person from whom those witnesses derived knowledge, has not stated anything which those witnesses have stated and therefore, there is absence of material evidence so as to conclude the guilt of the accused, that too, for a serious offence of rape if at all it is said. [17] Considering the overall case pleaded by the prosecution after registration of the FIR about the offence having been committed by the accused, narrating all the details on the next day thereof she has been medically examined by the doctor and naturally she would narrate in the form of history, the very same facts before the doctor. If she has not supported the case of the prosecution to the First Information Report registered by her on 11.10.2019 and when she has admitted in her cross-examination that filing of the complaint is outcome of an instigation by someone, even history given by her to the doctors after registration of FIR can be said to be part of that instigation itself. Even otherwise, the evidence of the doctor in the form of history given by the victim to them is a corroborative evidence. In absence of substantive evidence, that too, of victim herself about offence of rape, the corroborative evidence is of no value and it becomes secondary. Even otherwise, the evidence of the doctor in the form of history given by the victim to them is a corroborative evidence. In absence of substantive evidence, that too, of victim herself about offence of rape, the corroborative evidence is of no value and it becomes secondary. [18] Considering the overall evidence brought on record, it appears that victim had physical relationship with the accused since years as they were knowing each other even prior to her marriage and both are willing participant into the physical relationship, which has continued even after her marriage. If the evidence led by the prosecution in the form of history given by the accused himself before the independent doctor is considered to be true, even they were staying together for a period of 7 years and during the time they had physical relationship as well. Therefore, it can be easily concluded that even if an incident, as claimed by the prosecution, has occurred, it can easily be concluded that it is by wish and will of the victim herself and cannot be said to be an offence. [19] We have perused the entire records and proceedings as also the reasons assigned by the learned Judge for recording an order of acquittal. Considering the same, we are unable to take a different view than the view taken by the learned Judge as he has considered in detail the evidences adduced and documents produced and proved before it. We find no substance in this acquittal appeal. Hence, it is hereby dismissed. [20] Registry is hereby directed to send back the records and proceedings forthwith to the concerned Trial Court.