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2025 DIGILAW 319 (GUJ)

Hure Ali Saeed Jamali v. State of Gujarat

2025-03-26

ILESH J.VORA, SANDEEP N.BHATT

body2025
JUDGMENT : SANDEEP N. BHATT, J. 1. By way of present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC”), the appellant - original convict has challenged the judgment and order dated 10.4.2013 passed by the learned Additional Sessions Judge, Court No.3, Ahmedabad city in Sessions Case No.43 of 2010, whereby the appellant is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/- and in default, to undergo six months' rigorous imprisonment for the offence punishable under section 363 of the IPC. For the offence punishable under section 366 of the IPC, the appellant-original accused is sentenced to undergo rigorous imprisonment of ten years and to pay fine of Rs.5,000/- and in default, to undergo rigorous imprisonment of six months. For the offence punishable under section 376 of the IPC, the appellant-original accused is sentenced undergo rigorous imprisonment of life. For the offence punishable under section 342 of the IPC, the appellant-original accused is sentenced to undergo rigorous imprisonment of one year and to pay fine of Rs.1,000/- and in default, to undergo rigorous imprisonment of fifteen days and for the offence punishable under section 506(1) of the IPC, the appellant- original accused is sentenced to undergo rigorous imprisonment of two years and to pay fine of Rs.2,000/- and in default, to undergo rigorous imprisonment of one month and all the sentences were ordered to run concurrently. 2. The Appeal came to be admitted. The Registry has received the Record and Proceedings along with the paper-book which has been supplied to the learned advocate for the respective parties. 3. 2. The Appeal came to be admitted. The Registry has received the Record and Proceedings along with the paper-book which has been supplied to the learned advocate for the respective parties. 3. It is the case of the prosecution that a complaint was filed against the accused by the learned trial Court to the effect that on 23.9.2009 at about 24.00 hours, the accused took the minor girls of the complainant named Hema aged 16 years and Bharti aged 14 years 10 months, from the residence of the complainant Nagjibhai Amratbhai, House No.37, Rabari ni Chali, Amraiwadi, Ahmedabad, by tempting and luring them and took them from the legal guardianship of the complainant and kidnapped them, confined them in the house of the accused and threatened them that “if they will not do as per his say, he will kill their parents and brother” and without the consent of the girls, committed rape on them and thereafter asked for ransom of Rs.50,000/- from their father on telephone and thereby committed offences under Sections 363, 366, 376, 342 and 506(1) of the Indian Penal Code. 4. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the accused, charge-sheet came to be filed in the learned competent Court and in turn, committed the case to the Sessions Court as provided under section 209 of the Code. 5. Upon committal of the case to the Sessions Court concerned, the learned Sessions Judge framed charge at Exh.3 against the respondents accused for the aforesaid offences. The respondents accused pleaded not guilty and claimed to be tried. 6. In order to bring home charge, the prosecution has examined some witnesses and also produced various documentary evidence before the learned trial Court, described in paragraph 12 of the impugned judgment and order, which are as under: 1. Panch witnesses:- Sr.No. Exh. Name of Witnesses 1. 6 Govindbhai Merajbhai Desai 5. 26 Amarnath Biharilal Nishadar 6. 29 Pradipkumar Ramroop Rathod 7. 30 Rajan Manokant Sharma 2. Victims and their relatives as witnesses: Sr.No. Exh. Name of Witnesses 2. 14 Prabhulal Chunaji Prajapati 3. 19 Victim No.1 (aged 17) 4. 24 Victim No.2 (aged 15) 3. Witnesses for age of the victims: Sr.No. Exh. Name of Witnesses 9. 26 Amarnath Biharilal Nishadar 6. 29 Pradipkumar Ramroop Rathod 7. 30 Rajan Manokant Sharma 2. Victims and their relatives as witnesses: Sr.No. Exh. Name of Witnesses 2. 14 Prabhulal Chunaji Prajapati 3. 19 Victim No.1 (aged 17) 4. 24 Victim No.2 (aged 15) 3. Witnesses for age of the victims: Sr.No. Exh. Name of Witnesses 9. 42 Fulchand Chhedilal Gupta 10. 44 Christian Angelina Augastin 4. Medical witnesses: Sr.No. Exh. Name of Witnesses 8. 36 Ramalkhan Nunman Baranval 11. 47 Dr.Kinjal Hasmukhrai Doshi 5. Police and F.S.L. witnesses: Sr.No. Exh. Name of Witnesses 12. 52 Ravaljibhai Motibhai Pandor 13. 54 Babubhai Lakhabhai Rathod 14. 59 Pravinpuri Shankarpuri Goswami 15. 64 Bhautik Nandshankar Pathak 7. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge convicted and sentenced the accused, as stated hereinabove. 8. We have heard learned advocate Mr.Khambholja for the appellant and learned APP Mr.Mehta for respondent-state, perused the record including the impugned judgment and order. 8.1 Learned advocate Mr.Khambholja for the appellant has assailed the impugned judgment and submitted that the trial court committed a serious error in holding the appellant- accused guilty of the offences of kidnapping and rape; that the Court below did not consider the material, omissions and contradictions found in the testimony of victims and other witnesses; that the accused was falsely implicated in the said offence; that there is nothing to prove the guilt against the appellant and evidence adduced by the prosecution is not even sufficient to raise suspicion against the appellant, much less, convicting the appellant. He submitted that there is delay in filing the FIR for which there is no explanation coming forth and that the complaint is a got up one and an afterthought to falsely implicate the accused. He submitted that the learned Sessions Court has missed the contradictions and omissions in the depositon of the victims and witnesses and has committed error in passing the impugned judgment convicting the appellant. He submitted that the learned Sessions Court has missed the contradictions and omissions in the depositon of the victims and witnesses and has committed error in passing the impugned judgment convicting the appellant. He, therefore, prayed to allow this appeal. 9. On the other hand, Mr.Jay Mehta, learned APP for the respondent-State vehemently opposed the appeal and contended that, no error, not to speak of any error of law could be said to have been committed by the court below in holding the appellant guilty of the offence punishable under the sections of IPC; that the version of the victims and other witnesses are clear, cogent and trustworthy and therefore the offence being committed by the accused on the victims is established and proved beyond reasonable doubt. Thus, therefore, Mr.Mehta, would urge that the learned trial court, on correct appreciation of the evidence, has convicted the appellant-accused for the offences punishable under the sections and he further prays for the dismissal of the appeal. 10. At the outset, a glance on the evidence led by the prosecution before the learned trial Court would be fruitful. 10.1 In the deposition of PW-2 Prabhulal Prajapati at Exh.14 who is the complainant, has stated that on 23.9.2009, his daughters-victims went outside at 12 o’ clock and after 2-3 days, the accused called and said not to file police complaint and he will find his daughters; that on 5.10.2009, the accused asked for Rs.50,000/- ransom and he called about three times; that then he filed the complaint. That on 7.10.2009, he met his daughters at police station and they took them to civil hospital and thereafter the complainant got the custody. In cross-examination, he submitted that his daughters were mentally and physically ill and therefore he took them to tantrik and on 23.9.2009, the accused stayed at his home for about half an hour. That on 7.10.2009, he met his daughters at police station and they took them to civil hospital and thereafter the complainant got the custody. In cross-examination, he submitted that his daughters were mentally and physically ill and therefore he took them to tantrik and on 23.9.2009, the accused stayed at his home for about half an hour. 10.2 In the deposition of P.W.3-Hemaben-victim no.1 at Exh.19, she has stated that they went to her maternal uncle’s place and there the accused was paying visits; that her uncle said that the girls have to do as per the say of the accused; that on 23.9.2009, she and her sister went outside to see garba and the accused met them and told that he will take them to show good garba; he made them sit in the rickshaw forcefully and took them to his house and confined them in the room and committed rape on them; that he used to give something to drink due to which they fainted; and that he threatened not to create scene or else he will kill her family. Further, when she was shown the clothes, she stated that they are her clothes and she was wearing them at the time of incident. The defence could not bring anything in the cross-examination contradicting what is stated in the chief-examination. 10.3 In the deposition of P.W.no.4-Bharitben-victim no.2 at Exh.24, she also stated the same as her sister victim no.1-Hemaben. She also identified her clothes when shown to her. The defence could not prove anything contradictory to what she has stated in the chief-examination. She has stated in very clear terms that the accused took them forcefully, confined them in the room and continuously committed rape on her and her sister and made them unconscious by giving something to drink. 10.4. The age of the victims-girls Hemaben and Bhartiben is proved by the prosecution as that of 17 years and 15 years respectively by leading oral and documentary evidence in the form of birth certificate and deposition of the school principal-Fulchand Chedilal Gupta at Exh.42, which could not be controverted by the accused. 10.5. 10.4. The age of the victims-girls Hemaben and Bhartiben is proved by the prosecution as that of 17 years and 15 years respectively by leading oral and documentary evidence in the form of birth certificate and deposition of the school principal-Fulchand Chedilal Gupta at Exh.42, which could not be controverted by the accused. 10.5. From the deposition of Ramlakhan Barnwal, the doctor who has examined the victims, at Exh.36, both the victims have narrated the history and from the same, he has recorded the same as a part of his duty, it is coming forth that rape has been committed on both the victims and there is no reason to disbelieve the same. 10.6. In the deposition of P.W.no.11-Dr.Kinjal Doshi at Exh.47, he has stated that the accused stated that both the victims came to his house in the night on the date of the offence and they had physical relations with their consent with the accused. She was cross-examined by the defence and it is proved that the accused had physical relations with the victims. 10.7. In the deposition of the investigating officer Babubhai Lakhabhai Rathod at Exh.54, he has stated that the girls were found from the house of the accsued and the necessary procedure of panchanama and seizure of the articles, clothes was done. From the cross-examination, this witness has stuck to his version stated in the chief-examination. He was cross-examined at length and from the perusal of the same, no major lapses or contradictions can be found in the theory put by the prosecution. 10.8. The prosecution witness-Pravinpuri Shankarpuri Goswami at Exh.56 who had taken over the investigation from Babubhai Lakhabhai Rathod, the prosecution witness- Bhautik Nandshakar Pathak at Exh.64 who was working at the Ahmedabad Forensic Science Laboratory, have been examined and cross-examined and they also could not lead anything contrary to the case put forth by the prosecution. Though it was tried to be proved in the cross-examination that the muddammal sent to the FSL is tampered but the same could not be proved. Therefore, there is no reason to disbelieve the deposition of the said witnesses. 11. Though given opportunity, the defence has not examined any witnesses. 12. The questions for consideration before this Court are whether the offence is committed or not and whether the accused has committed the offence or not? 13. Therefore, there is no reason to disbelieve the deposition of the said witnesses. 11. Though given opportunity, the defence has not examined any witnesses. 12. The questions for consideration before this Court are whether the offence is committed or not and whether the accused has committed the offence or not? 13. There is no space for doubting the occurrence of the offence considering the complaint and the evidence led before the learned Sessions Court. 14. Now, on the question, whether the accused has committed the offence or not, the learned Sessions Judge has discussed that from the deposition of victim no.1, it is proved that the accused confined the victims for thirteen days and committed rape on her and her sister, by fainting them by giving something to drink. Also, that the age of the victims is 16 years and 15 years respectively. Further, though there are minor contradictions and omissions in the statement before the police and the deposition before the Court, the same cannot be used to discard the statement of the victims. That the victims were so frightened on the happening, that they could not raise their voice at any point of time. The learned Sessions Court further observed that it is natural that after a trauma of about thirteen days, it might have happened that some minor contradictions and omissions may be found but that itself should not be taken to discard the entire deposition of the girls, more particularly, when both the girls deposed the similar version of the trauma caused to them by the accused. 15. The learned Sessions Judge has discussed the deposition of the accused, deposition of the victims and observed that the same along with the conjoint reading of the medical evidence produced, it is clear that the accused used to give some intoxicating material to drink and made the victims unconscious and then raped them. The panchanama prepared is proved by the deposition of the investigating officer. Though there are some contradictions in the cross-examination of the said witness, they may be because of the trauma the girls had undergone during thirteen days under the influence of the accused and further the lapses or contradictions are not so major to contradict the theory put forward by the prosecution. Though there are some contradictions in the cross-examination of the said witness, they may be because of the trauma the girls had undergone during thirteen days under the influence of the accused and further the lapses or contradictions are not so major to contradict the theory put forward by the prosecution. From the deposition of the medical officer who examined the accused clubbed with the deposition of the medical officer who has examined the victims and before whom the victims have given the history, it is clear that the accused had physical relations with the victims after giving some intoxicating material to the victims. The accused was married and having two children, which is also coming on the record. The defence could not prove that the accused was not able to have any sexual intercourse or that he was having any mental illness. Therefore, the deposition of the medical witnesses go to prove the case of the prosecution. 16. From the entire evidence on record, it is clearly proved that the victims were forcefully taken by the accused, confined in his house for thirteen days, threatened to kill their family if they raise their voice, used to give some intoxicating material to drink, they lay unconscious and the accused committed rape on them one by one. The torture went on for thirteen days. The FSL report and the serological report also supports the said facts and the offence of rape on the victims, semen was found on almost all the clothes and body parts of the victims. The victims were minor and their age is also proved by leading oral as well as documentary evidence. The say of the accused that the girls voluntarily came to his house and had physical relations with him is not believed by the learned Sessions Court and also could not be believed in view of the depositions and the documentary evidence produced on record. The condition in which the girls were found in the house of the accused do not leave any doubt to disbelieve their version that they were raped by the accused. 17. At this stage, a fruitful reference can be made to the case of Bharwada Bhoginbhai Hirjibhai V/s State of Gujarat reported in (1983) 3 SCC 217 , wherein the Hon’ble Supreme Court has observed as under: “9. 17. At this stage, a fruitful reference can be made to the case of Bharwada Bhoginbhai Hirjibhai V/s State of Gujarat reported in (1983) 3 SCC 217 , wherein the Hon’ble Supreme Court has observed as under: “9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?” 18. In the case of Phool Singh V/s State of Madhya Pradesh reported in (2022) 2 SCC 74 , it is held observed in paragraph 7 as under: “7. At the outset, it is required to be noted that in the present case, the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecution should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and/or trustworthiness of the prosecution. The submission on behalf of the accused that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecution cannot be sustained is concerned, the aforesaid has no substance.” 19. Applying the above said principle of law to the facts of the present case, the present case is even on a better footing as the depositions of the victims are trustworthy and also corroborated with medical evidence which leaves no shadow of doubt to disbelieve their case. 20. As regards the demand of ransom by the accused, the complainant has stated in his deposition that his daughters went missing, he could not find them, at that time, the accused called him and said not to give any police complaint, and that he will search the daughters, thereafter he demanded Rs.50,000/- on 5.10.2009 to search the girls and he called two three times, due to which, the complainant got a doubt and therefore he registered the complaint. The complainant has stated the same in his complaint. The complainant has stated the same in his complaint. Therefore, the complaint, the deposition of the complainant and the cross-examination of the complainant put together proves the fact that the accused has demanded ransom of Rs.50,000/- and threatened to kill the girls. Nothing is brought contrary to the same by the defence to prove that the accused has not called the complainant. 21. As regards the delay caused in filing the FIR, the learned Sessions Judge has discussed that the complainant had searched for his daughters from his relatives and all of them including the accused were giving solace to him that his daughters will be back and therefore he waited for certain period and also with a view to see that the future of the girls may not be ruined, generally the parents don’t give the complaint immediately in such cases, the complainant must have waited, but, when the accused gave a ransom call demanding Rs.50,000/-, the complainant filed the complaint. The conduct of the complainant in filing the complaint after 13 days from the date the girls went missing is obvious and natural and therefore such delay cannot be said to be delay. 22. On minute perusal of the oral evidence of all the prosecution witnesses, the documentary evidence and the impugned judgment, the offence being committed by the accused is proved beyond reasonable doubt by the prosecution before the learned Sessions Court and therefore the learned Sessions Court has convicted the accused and after hearing him on the point of sentence, sentenced him as stated in the impugned judgment. The learned Sessions Court has not committed any error in doing so. 23. Considering the judgment of the Hon’ble Apex Court in the case of Lok Mal @ Loku V/s The State of Uttar Pradesh decided on 7.3.2025 in Criminal Appeal No.325 of 2011, the relevant paragraphs no.11 to 16 are reproduced as under: “11. Merely because in the medical evidence, there are no major injury marks, this cannot a be a reason to discard the otherwise reliable evidence of the prosecutrix. It is not necessary that in each and every case where rape is alleged there has to be an injury to the private parts of the victim and it depends on the facts and circumstances of a particular case. It is not necessary that in each and every case where rape is alleged there has to be an injury to the private parts of the victim and it depends on the facts and circumstances of a particular case. We reiterate that absence of injuries on the private parts of the victim is not always fatal to the case of the prosecution. According to the version of the prosecutrix, the accused overpowered her and pushed her to bed in spite of her resistance and gagged her mouth using a piece of cloth. Thus, considering this very aspect, it is possible that there were no major injury marks. The appellant made an attempt to raise the defence of false implication, however, he was unable to support his defence by any cogent evidence. Ld. counsel for the appellant further submitted that there is an inordinate delay in lodging complaint and registering FIR. However, considering the evidence on record, we are of the opinion that the said delay in lodging of the complaint and registering FIR has been sufficiently explained and is not fatal to the case of the prosecution. 12. In the present case, the prosecutrix was continuously threatened by the appellant that she will face his wrath if she creates a commotion. The prosecutrix was hence forced to submit to the lust of the appellant and was left with no other alternative than to submit to the evil wish of the appellant. 13. It is a settled principle of criminal jurisprudence that the evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness and conviction can be made on the basis of the sole testimony of the prosecutrix. In the case of State of Punjab v. Gurmit Singh, the Supreme Court observed as under: “21… The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 14. A profitable reference can also be made to the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, where the Supreme Court observed as under: “9..In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?” 15. Applying the above said principle of law to the facts of the present case, we are of the opinion that the testimony of the prosecutrix is trustworthy and leaves no shadow of doubt to discredit her case. Moreover, the appellant has failed to cause a dent in the testimony of the prosecutrix. 16. Merely by alleging that mother of the prosecutrix was a lady of easy virtue or her husband left her, there is absolutely no supportive material brought by the appellant in his defence so as to explain why he was implicated. The court is separately required to adjudicate whether the accused committed rape on the victim or not. We find no reason to accept the contention that the alleged immoral character of the mother of the prosecutrix has any bearing on the accused being falsely roped in on the basis of a concocted story by the mother of the prosecutrix. The question of conviction of the accused for rape of the prosecutrix is independent and distinct. It has absolutely no connection with the character of the mother of the prosecutrix and seems to be a dire attempt at using it as a license to discredit the testimony of the prosecutrix. We find no merit in these contentions.” 24. The question of conviction of the accused for rape of the prosecutrix is independent and distinct. It has absolutely no connection with the character of the mother of the prosecutrix and seems to be a dire attempt at using it as a license to discredit the testimony of the prosecutrix. We find no merit in these contentions.” 24. In view of the aforesaid discussions, after re-analysis and re-appreciation of the evidence and on perusal of the impugned judgment of conviction, we are satisfied that, prosecution has proved its case with sufficient oral and documentary evidence, beyond all reasonable doubt, that the appellant has committed the offence punishable under Sections 363, 366, 376, 342 and 506(1) of the Indian Penal Code. It transpires from the entire evidence on the record that the accused has influenced the family of the victims-girls by highlighting himself as 'Godman’-Tantrik and it transpires that all the wrongful acts is done by the accused in a planned manner. We do not find any scope for interference with the findings of conviction and sentence recorded by the learned trial Court, as findings are given after properly appreciating evidence produced on record and also after properly considering the provisions of relevant laws and learned trial Court has not committed any error in convicting the present appellant. 25. Before parting, this Court would like to mention that the victim girls went to their maternal uncle’s place, stayed there with their mother for some time. The accused used to visit their uncle’s place and thereby they know the accused by face and name. The accused developed good rapport with the victims-girls. Therefore, when the victims-girls went to see garba on the night of the incident and when the accused met them on the road and told them that he will show good garba to them, there was no point for the victims-girls not to believe the accused. Therefore, they went with him. But, what happened next was shocking to the victims-girls. The accused took them to his house, confned them, gave intoxicating drink to them, raped them and threatened them to kill their family members if they raise their voice. The unfortunate minor girls were shocked and frightened by the sudden evil behaviour of the accused. The physical and mental trauma undergone by the victims-girls during the period of their confinement is beyond imagination. The unfortunate minor girls were shocked and frightened by the sudden evil behaviour of the accused. The physical and mental trauma undergone by the victims-girls during the period of their confinement is beyond imagination. Therefore, convicting the accused is an example to those persons, who under the guise of acquaintance, misuses their acquaintance with the girls. Setting such persons to liberty would convey false message to such culprits. 26. In the result, this conviction appeal deserves to be dismissed and is hereby dismissed by upholding the conviction and sentence. R&P, if any, be sent back to the trial Court forthwith. 27. As the main appeal is dismissed, no orders are required to be passed in the Criminal Miscellaneous Application. Hence, the same is disposed of.