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2024 DIGILAW 678 (GUJ)

State Of Gujarat v. Hiralal Lallubhai Trivedi

2024-04-01

A.S.SUPEHIA, VIMAL K.VYAS

body2024
JUDGMENT : A.S. SUPEHIA, J. 1. The present Appeal is directed against the judgment and order dated 30th October 1999 passed by the Trial Court, Sabarkantha at Himmatnagar, acquitting the respondent- accused for the offences for which he was charged. 2. As per the case of the prosecution and as per the charge at Exh.11, on 17th July 1998 at around 12:30 p.m. the respondent- accused committed offences under Sections 363, 366 and 376 of the Indian Penal Code on the prosecutrix who was aged about 8 years. The complaint at Exh.56 was given by the father of the prosecutrix on 24th July 1998 making such allegations against the respondent-accused. Thus, the incident which has occurred on 17th July 1998, the complaint has been given by the father of the victim on 24th July 1998 by tendering the explanation that since his wife was not at home and was elsewhere and after due deliberation with the family members and the in-laws, the complaint has been registered. It is pertinent to note that the mother of the victim has not been examined as a witness, however, her statement under Section 161 of the Code of Criminal Procedure has been recorded. 3. The trial court, after examining the ocular as well as the medical evidence, has acquitted the respondent-accused for the offences for which he was charged. 4. Learned APP Mr.Ronak Raval, while assailing the judgment and order of acquittal passed by the trial court, has submitted that the trial court has not appreciated the evidence in its true perspective. He has submitted that there is a direct evidence of the prosecutrix who is examined as PW-7 at Exh.147. Learned APP has submitted that she, in her deposition, has specifically narrated the manner in which the incident had occurred and the accused had tried to commit rape on her. However, the trial court has disbelieved the version of the prosecutrix, which is erroneous. Learned APP has submitted that as per the ocular evidence of the prosecutrix, she was aged about 8 years. The respondent, who is the teacher, had called her in his house and when she had prepared the rice and also cleaned the house, the respondent-accused had closed the doors and windows of the house and had forcibly committed the rape on her by carrying her on the bed forcefully. The respondent, who is the teacher, had called her in his house and when she had prepared the rice and also cleaned the house, the respondent-accused had closed the doors and windows of the house and had forcibly committed the rape on her by carrying her on the bed forcefully. He has submitted that the prosecutrix immediately contacted the first available person, i.e. PW-10 Pushpaben, who is the grandmother of the prosecutrix and thereafter she was taken for medical treatment and was examined by the Medical Officers. The first was the PW-1 Dr.Ganpatsinh Ambadanji Charan examined at Exh.14, who has recorded the history. He has submitted that the other medical officers who have been examined by the prosecution being PW-4 Dr.Jinabhai Amthabhai Yadav examined at Exh.30, who is the Medical Officer at Civil Hospital, Himmatnagar, who has also confirmed the offence of rape being committed on the victim. Learned APP has also referred to the evidence of the PW-5 Dr.Manubhai Hirabhai Solanki examined at Exh.32, who is the third Medical Officer who has examined the victim on 24th July 1998, has also confirmed that an attempt was made on the victim for commission of rape, however, the accused was not successful. Learned APP has also referred to the evidence of PW-8 Dr.Ashwinbhai Joitabhai Patel at Exh.49 and submitted that he has also confirmed that an attempt was made for commission of the offence of rape on the victim. Learned APP has referred that the doctor has also recorded the history of the prosecutrix. Learned APP has submitted that even the panch witnesses being PW-2 Hajiben Abdulbhai Mansuri and PW-3 Kamleshkumar Jayantilal Pandya have supported the case of the prosecution so far as the recovery of the clothes of the prosecutrix and the discovery of the clothes of the respondent- accused is concerned. Learned APP has also referred to the evidence of the PW-10 Pushpaben Ratilal Trivedi examined at Exh.53, who happens to be the grandmother of the prosecutrix and the first person who has been informed by the prosecutrix about the commission of rape by the respondent-accused on her. Learned APP has also referred to the evidence of the PW-6, i.e. the father of the prosecutrix Atulkumar Ratilal examined at Exh.41, who has narrated the incident as described by the prosecutrix. Learned APP has also referred to the evidence of the PW-6, i.e. the father of the prosecutrix Atulkumar Ratilal examined at Exh.41, who has narrated the incident as described by the prosecutrix. Learned APP has further referred to the history recorded of the victim by the PW-5 Dr.Manubhai Hirabhai Solanki examined at Exh.32 and PW-4 Dr.Jinabhai Amthabhai Yadav examined at Exh.30. Thus, it is submitted that even if the documentary evidence is discarded, the sole testimony of the prosecutrix is enough to prove the offence. 5. In support of his submissions, learned APP has placed reliance on the judgments in the cases of Vijay @ Chinee vs. State of Madhya Pradesh, reported in (2010) 8 SCC 191 ; State of Maharashtra vs. Chandraprakas Kewalchand Jain, reported in (1990) 1 SCC 550 ; and Karnel Singh vs. State of Madhya Pradesh, reported in (1995) 5 SCC 518 . 6. Learned APP has thus submitted that the trial court has acquitted the respondent-accused by making perverse observations to the effect that the past life and the career of the accused was not tainted and he was having excellent career. On this pretext, it is submitted that the trial court has acquitted the respondent-accused. Learned APP has also submitted that one of the factors which weighed upon the trial court was the delay in recording the FIR, which cannot be given preference in a serious offence like murder. Thus, it is urged that the acquittal recorded by the trial court acquitting the respondent-accused may be reversed by setting aside the judgment and order. 7. In response to the submissions advanced by the learned APP, learned advocate Mr.R.L.Raval appearing for the respondent-accused has submitted that the judgment and order passed by the trial court does not require any interference by this Court since the same is precisely passed after examining the ocular as well as the documentary evidence. Learned advocate Mr.Raval has submitted that, in fact, the version of the victim does not inspire confidence as she has falsely stated that she was studying in Standard-IV on the date of the incident in Ravol Primary School, whereas, the evidence of the Principal PW-9 Lakhabhai Amichandbhai Patel examined at Exh.50 refers that the victim had already left the school one year prior to the incident and that she was studying at Kamalpur Primary School at Idar. He has produced the birth certificate of the victim, specifying the date of birth as 28.7.1990, as well as the school leaving certificate of the Ravol Primary School, where the victim stated that she was studying and she was on leave on that day as there was holiday in the school due to the meeting. Thus, it is urged that this version of the prosecutrix that she was at home since there was holiday in Ravol Primary School is false. He has further referred that the victim has stated that after the alleged commission of the offence by the accused, he had kept the inner- wear with him, however, the same does not reconcile with the evidence of the grandmother of the victim (PW-10), who has stated that the inner-wear as well as the frock worn by the victim was with her and she had taken the same when the victim was taken to the medical evidence. Learned advocate has further stated that the medical evidence also does not reconcile with the deposition of the Medical Officer who has examined the victim. Learned advocate has submitted that though the PW-1 Dr.Ganpatsinh Ambadanji Charan had immediately informed the police about the incident on the very same day, i.e. on 17th July 1998 and the police had also visited the house of the victim on 18th July 1998, however, the FIR came to be registered on 24th July 1998, i.e. after a period of 7 days, by the father of the victim. Learned advocate has further submitted that, in fact, when the victim was examined by the PW-4 Dr.Jinabhai Amthabhai Yadav on 17th July 1998 at 11:05 hours in the night, no injury was found by him. He has submitted that even the doctor has not referred to any bleeding suffered by the victim on her private parts. However, it is submitted that on the very same day when the victim was examined by the PW-1 Dr.Ganpatsinh Ambadanji Charan, he found some bruises and also bleeding on the private parts of the victim. Thus, it is submitted that there is contrary medical evidence of the doctors and hence the trial court has not precisely placed reliance on such evidence. Thus, it is submitted that there is contrary medical evidence of the doctors and hence the trial court has not precisely placed reliance on such evidence. Learned advocate has also referred to the depositions of two other doctors, being PW-5 Dr.Manubhai Hirabhai Solanki examined at Exh.32, who examined the victim on 24th July 1998 at the Himmatnagar Civil Hospital, wherein the said doctor though has stated about the injuries on the private parts of the victim, however, it is surprising that such injuries are found after a period of one week. He has submitted that the certificate issued by the PW-5 Dr.Manubhai Hirabhai Solanki on 24th July 1998 at Exh.34 is identical and verbatim to the note or the observations made by the PW-8 Dr.Ashwinbhai Joitabhai Patel, who is the expert gynecologist who had examined the victim on 25th July 1998 at 00:20 a.m. Learned advocate has also submitted that the recovery of pieces of bloodstained clothes from the house of the accused, more particularly, ‘dhoti’ itself is doubtful since when the recovery panchnama was carried out, the house was closed and the accused was not present at the house. Learned advocate Mr.Raval appearing for the respondent- accused has further submitted that the serological report also does not, in any manner, connect the accused with the offence. Hence, it is submitted that the judgment and order recording acquittal of the accused may not be disturbed. 8. We have heard learned advocates for the respective parties at length and also scaled the evidence threadbare. The respondent-accused was charged with the offences punishable under Sections 363, 366 and 367 of the Indian Penal Code. It is alleged by the complainant in his complaint dated 24th July 1998 that on 17th July 1998, by calling and enticing his daughter to his house, the accused committed rape on his daughter, i.e. the victim. Thus, it is not in dispute that for the offence which was alleged to have been committed by the accused on 17th July 1998, the complaint came to be registered on 24th July 1998, i.e. after a period of 7 days. 9. Before we discuss the evidence of the victim, it would be apposite to refer to the medical evidence. The victim was examined by the PW-1 Dr.Ganpatsinh Ambadanji Charan on the first occasion on 17th July 1998 at around 12 O’clock in the afternoon. 9. Before we discuss the evidence of the victim, it would be apposite to refer to the medical evidence. The victim was examined by the PW-1 Dr.Ganpatsinh Ambadanji Charan on the first occasion on 17th July 1998 at around 12 O’clock in the afternoon. He has referred to some bruises on vulva of the prosecutrix and also stated that there was minor bleeding found by him. He had immediately informed the Idar Police Station about the said incident. It is interesting to note that this witness has not issued any certificate on 17th July 1998 but has issued the same on 25th July 1998 after he was contacted by the Idar Police Station. The victim was also examined by the PW-4 Dr.Jinabhai Amthabhai Yadav, examined at Exh.30, on 17th July at 11:05 in the night. Accordingly, he issued certificate at Exh.31 dated 17/18th July 1998. This witness is a Medical Officer at the Himmatnagar Civil Hospital. In the certificate, he has specifically stated that there was no external marks of injuries found over face, neck, both arms, chest, abdomen, thigh and external genital. He does not refer to any bleeding on the private parts of the victim. It is interesting to note that in his certificate, he has referred that the patient’s relatives refuse for examination and has gone away with the patient and said, “we will come with the police yadi”. 10. We may also referred to the deposition of PW-5 Dr.Manubhai Hirabhai Solanki (Exh.32). He has issued the certificate Exh.34. As per the certificate and as per the deposition of this witness, the victim was examined by him on 24th July, 1998 at 11:15 p.m. and as per his observation he had found redness, tenderness and bleeding on touching over the hymeneal part. It appears that the certificate has been issued on the basis of the note made by PW-8 Dr.Ashwinbhai Joitabhai Patel, a full time Gynecologist, who has been examined at Exh.49, and as per his deposition, he had examined the prosecutrix on 24th July 1998 at 2:00 hours and he found that there was some redness on the private parts of the prosecutrix and on touching the same, bleeding was noticed by him. According to his opinion, an attempt for rape was being made, however, the same had remained unsuccessful. According to his opinion, an attempt for rape was being made, however, the same had remained unsuccessful. Similar is the evidence of PW-5 Dr.Manubhai Hirabhai Solanki and he has, in verbatim, issued the certificate Exh.34. From the medical evidence, it is noticed that the prosecutrix was examined by three Medical Officers and one expert Gynecologist. The Medical Officer PW-4 Jinabhai Amthabhai Yadav (Exh.30), in his report, did not observe any injuries. Neither he has referred to any injury nor he has referred any bleeding. He has examined the prosecutrix on the very same day, i.e. on 17 July 1998 at 11:00 O’clock in the night, whereas, in contradiction, the PW-1 Dr.Ganpatsinh Ambadanji Charan who is examined at Exh.14 and is also a Medical Officer at the Community Health Center, Idar, has deposed in his evidence that he saw some lacerations present on the vulva of the prosecutrix, but it is surprising to note that within a period of 2 hours the report revealed contradictory findings on the victim. Both the officers are Medical Officers (Class-II). Further, it is surprising to note that when the victim was examined after a period of one week, the other doctors, PW-5 Dr.Manubhai Hirabhai Solanki and PW-8 Dr.Ashwinbhai Joitabhai Patel have found bleeding on the fourchette region and on touching the fourchette region, it was observed by both the doctors that the bleeding was present. The PW-5 Dr.Manubhai Hirabhai Solanki has admitted that the injuries which are referred by him in the certificate at Exh.34 are artificially possible and there are instances in minor children of such injuries. The opinion of Dr.Ashwinbhai Joitabhai Patel, which is noted by him in his medical evidence, is verbatim same to the certificate issued by Dr.Manubhai Hirabhai Solanki at Exh.34. Thus, the medical evidence appears to be doubtful so far as the narration of injuries is concerned. It is surprising to note that the father of the victim, i.e. the complainant, was present on 17th July 1998 when the victim was taken first at the Idar Hospital and thereafter at the Himmatnagar Civil Hospital. However, he refused to take the victim to the Gynecologist and against the advice of the doctor, he went away and informed that he would be referring the victim after the police yadi. This behavior and conduct of the complainant is not palatable and appears to be unnatural. However, he refused to take the victim to the Gynecologist and against the advice of the doctor, he went away and informed that he would be referring the victim after the police yadi. This behavior and conduct of the complainant is not palatable and appears to be unnatural. In the complaint dated 24th July 1998, which has been registered after a period of one week, the reasons assigned by him for delay is that he was waiting for his wife, who had gone away and was not at home, and after consulting with the family members and the in-laws, and after due deliberation, the complaint was registered. 11. We have noticed from the case-papers that the wife of the complainant, i.e. the mother of the victim, is not examined as a witness, however, in her statement under Section 161 of the Cr.P.C. which was recorded on the very next date she was present on 18th July 1998 at her home. From the case-papers also, it is noticed that though there were neighbours who could have thrown light on the evidence, however, they have not been examined as the witnesses, though their statements were recorded. At this stage, it would be apposite to notice that the first Medical Officer PW-1 Dr.Ganpatsinh Ambadanji Charan has immediately informed the police station about the incident after he examined the victim. From the deposition of PW-10 Pushpaben Ratilal Trivedi, i.e. the grandmother of the victim, who is examined at Exh.53, it is revealed that the police had visited their home on 18th July 1998 and also inquired from her as well as the prosecutrix, their relatives and neighbors, however, surprisingly, no FIR was registered and the same came to be registered thereafter after a period of one week. This behavior of the complainant as well as the grandmother, who had accompanied the victim to the hospital, appears to be unnatural and the conduct in such a serious offence of both these witnesses appears to be doubtful and their version is not palatable. There is another aspect which we have noticed from the evidence of the PW-7, i.e. the victim. She has stated that she was studying in Standard-IV in Ravol Primary School and on the date of the incident, i.e. on 17th July 1998, since there was a meeting of the teachers it was a holiday in her school. There is another aspect which we have noticed from the evidence of the PW-7, i.e. the victim. She has stated that she was studying in Standard-IV in Ravol Primary School and on the date of the incident, i.e. on 17th July 1998, since there was a meeting of the teachers it was a holiday in her school. Thus, the narration of the incident on the specific date, i.e. 17th July 1998, by the victim itself appears to be false in view of the evidence of the Principal (i.e. Headmaster of Kamalpur Primary School), who is examined as PW-9 at Exh.15, wherein he has produced the school register and the Entry No.1409 of the victim, which records her date of birth as 28th July 1990 and it has been specifically stated that the victim had left the earlier school, i.e. Ravol Primary School one year back and she was studying at Kamalpur Primary School at Idar. Thus, the version of the victim that the offence was committed on 17th July 1998 since there was holiday in her Ravol Primary School does not inspire confidence. As per the school leaving certificate Exh.51, the victim had left the Ravol Primary School on 24th July 1997, i.e. exactly one year prior to the date of the incident. It is elicited from her cross-examination that when the accused had called her at his house, at that time some repair work was going on in the house and one labourer was also present and she remained present at the house of the accused for half an hour, however, no investigation has been done to verify the actual presence of the labourer who was present at the time of the incident in the house of the accused. It is not coming on record, whether the labourer was present inside or outside the house. In case if any investigation was done in this regard, the true picture of the incident could have come forth. It is also not palatable that the accused had committed the offence in his house in which the labourer was already working and doing repairing work of the house. Similarly, the victim has referred that the accused had kept the inner-wear with him after committing the offence. It is also not palatable that the accused had committed the offence in his house in which the labourer was already working and doing repairing work of the house. Similarly, the victim has referred that the accused had kept the inner-wear with him after committing the offence. However, the same runs contrary to the version of the PW-10, i.e. the grandmother of the victim, who had taken the inner-wear and the clothes of the victim to the hospital and also kept the same with her for a period of one week and thereafter the same were handed over to the police at the time of preparing the panchnama. The victim has also deposed that for 2 hours she was bleeding profusely when the accused had committed rape on her. However, as per the panchnama, no blood stains were found on the cot or in the room of the accused. The serological report also does not involve the accused. It is also admitted by her, in her cross-examination that she and her parents had no communication with the accused and neither she went to the house prior to the incident nor she had talked to him. It is surprising to note that it is alleged by her that the accused asked her to clean the room and after cleaning the room and also after preparing the rice for him, has thereafter closed the doors of the house and had committed rape on her. All the aforesaid facts, if closely read and appreciated, the evidence of the prosecution appears to be tainted with doubt and the prosecution has failed to prove, beyond reasonable doubt, the offence as alleged against the accused as per the charge. Though, we do not appreciate the observations made by the trial court while acquitting the accused to the effect that since the accused was a teacher and was having a blot-less career, he could not have committed the offence. At the same time, on the overall appreciation of the evidence, we are of the opinion that the prosecution has failed to bring home the charge against the accused. At the same time, on the overall appreciation of the evidence, we are of the opinion that the prosecution has failed to bring home the charge against the accused. It is no more res integra that if two views are possible, the view which has been found favourable with the accused by the trial court, the appellate court has to be very cautious and slow in interfering with the acquittal unless the acquittal is premised on absolutely perverse appreciation of the evidence. Hence, the present appeal fails and the same is hereby dismissed.