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CR.A/425/1999 26/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 425 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE DN PATEL
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
KHUMANSINH
@ JUGO @ RAMESH AMBALAL CHAVDA & 1 - Appellants
Versus
STATE
OF GUJARAT - Opponent
=========================================================
Appearance :
MS
MONA B RAVAL WITH MR BS SUPEHIA WITH MR PM VYAS WITH MS REKHA H
KAPADIA for the Appellants.
MR PD BHATE, ADDITIONAL PUBLIC
PROSECUTOR for the
Opponent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 23/06/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.N.PATEL)
1. The
present appeal has been preferred against the judgment and order
dated 30th March, 1999 in Sessions case No. 298 of 1998 passed by the
learned Additional Sessions Judge, Kheda at Nadiad, whereby the
present appellants have been convicted for the offences punishable
under Sections 302, 363, 366 and 376 of the Indian Penal Code. The
sentence awarded to the appellants is as under:
Accused
no.1 was sentenced to undergo rigorous imprisonment for life and pay
a fine of Rs. 1000/-, in default, to undergo further rigorous
imprisonment for two years for the offence punishable under section
302 of the Indian Penal Code. The appellant no.1 was sentenced to
undergo rigorous imprisonment for seven years and pay a fine of Rs.
500/-, in default, to undergo further rigorous imprisonment for six
months for the offence punishable under section 307 read with section
34 of the Indian Penal Code. The appellant no.1 was sentenced to
undergo rigorous imprisonment for life and pay a fine of Rs. 1,000/-,
in default, to undergo further rigorous imprisonment for two years
for the offence punishable under section 376(2)(G) of the Indian
Penal Code. The appellant no.1 was sentenced to undergo rigorous
imprisonment for seven years and pay a fine of Rs. 1,000/-, in
default, to undergo further rigorous imprisonment for one year for
the offence punishable under sections 363, 366 read with section 34
of the Indian Penal Code. The appellant no.1 was sentenced to undergo
rigorous imprisonment for three years and pay a fine of Rs. 500/-, in
default, to undergo further rigorous imprisonment for three months
for the offence punishable under section 365 read with section 34 of
the Indian Penal Code. The appellant no.1 was sentenced to undergo
rigorous imprisonment for five years and pay a fine of Rs. 500/-, in
default, to undergo further rigorous imprisonment for six months for
the offence punishable under section 372 of the Indian Penal Code.
The appellant no.2 was sentenced to undergo rigorous imprisonment for
five years and pay a fine of Rs. 1,000/-, in default, to undergo
further rigorous imprisonment for three months for the offence
punishable under section 307 read with section 34 of the Indian Penal
Code. The appellant no.2 was sentenced to undergo rigorous
imprisonment for seven years and pay a fine of Rs. 1,000/-, in
default, to undergo further rigorous imprisonment for six months
years for the offence punishable under section 376 read with section
114 of the Indian Penal Code. The appellant no.2 was sentenced to
undergo rigorous imprisonment for five years and pay a fine of Rs.
1,000/-, in default, to undergo further rigorous imprisonment for six
months for the offence punishable under section 372 of the Indian
Penal Code. The appellant no.2 was sentenced to undergo rigorous
imprisonment for three years and pay a fine of Rs. 500/-, in default,
to undergo further rigorous imprisonment for one month for the
offence punishable under sections 363, 366 of the Indian Penal Code.
The appellant no.2 was sentenced to undergo rigorous imprisonment for
one year and pay a fine of Rs. 500/- in default, to undergo further
rigorous imprisonment for fifteen days for the offence punishable
under section 365 of the Indian Penal Code.
2. Brief
facts of the prosecution case are as under:
It
is the case of the prosecution that on 23rd May, 1998, the
complainant-prosecutrix was kidnapped alongwith her sister by the
present appellants. Thereafter, they were taken to various places as
referred in the FIR and were compelled to have several intercourse.
It is also a case of prosecution that the appellant No.1 and other
accused had committed rape on the complainant. Accused caused murder
of Raziabanu – sister of prosecutrix. The complainant was also thrown
in the gutter line wherefrom she was rescued by the prosecution
witness Nos.14 and 15. Thereafter, FIR was registered on 9th
July,1998. Investigation was carried out, charge-sheet was filed and
the present two appellants, alongwith other two accused were
prosecuted. The appellants have been punished as stated hereinabove,
whereas, rest of the accused have been acquitted. Against this
judgment and order of conviction, the appellants have preferred the
present appeal.
3. We
have heard the learned counsel for the appellants, who have mainly
stated that the prosecution has failed to prove, beyond reasonable
doubt, the offences as alleged against the appellants. There is no
evidence of rape committed by the appellant No.1 upon the
complainant, nor there is any evidence of murder committed by the
present appellants and sister of the present complainant. There is no
link between appellants and murder of Raziabanu. There is no eye
witness nor chain of circumstances has been completed and proved by
the prosecution. It is also contended by the learned advocate for the
appellants that evidence of the prosecutrix inspires no confidence
and, therefore, assurance is required from the other circumstances or
evidence directly or indirectly. It is also submitted by the learned
advocate for the appellants that the prosecutrix has not narrated
anything in her FIR about rape committed by appellant No.1. She has
improved case in her deposition which is a material improvement.
Likewise, the prosecutrix has not narrated about committing rape
before prosecution witness Nos.14 and 15 who have rescued her as per
her allegations nor has she stated anything before Doctor about rape
committed by appellant no.1. It is alleged by the prosecutrix that
she was with the appellants for several days. She was knowing the
names of the appellant, but she has never stated the names of the
appellants before anyone. It is also contended by the learned
advocate for the appellants that neither medical evidence nor FSL
report is corroborating the allegations propounded by the prosecutrix
against the appellants and, therefore, the order of conviction and
sentence requires to be quashed and set aside.
4. We
have also heard the learned Additional Public Prosecutor on behalf of
the State, who has mainly submitted that looking to the deposition of
the prosecutrix, the case of the prosecution is established beyond
reasonable doubt which proves the offence against the present
appellants. There is no need of any corroboration, once clear version
is given by the prosecutrix. It is also submitted by the learned
Additional Public Prosecutor that looking to the deposition of the
prosecution witnesses, especially of P.W.Nos.1 and 2, who is
prosecutrix and brother of the prosecutrix, respectively and also
looking to the evidence given by the Doctor and independent witness
Nos.14 and 15, the offence of rape and murder has been proved beyond
reasonable doubt against the present appellants. Even in test
identification parade, the prosecutrix has identified the present
appellants. Looking to the totality of the prosecution evidence, the
order of conviction may not be altered by this Court.
5. Having
heard the learned advocates for both the sides and looking to the
evidence on record, the judgment and order dated 30th March, 1999 in
Sessions case No. 298 of 1998 passed by the learned Additional
Sessions Judge, Kheda at Nadiad, requires to be quashed and set aside
for the following facts and reasons:
(i) The
offence has taken place on 23rd May,1998. It is the case of the
prosecutrix that she was knowing the appellants even before they left
the house. The prosecutrix as well as her sister Raziabanu left the
house in search of work to assist their brother who is the only
earning male member in the family.
(ii) Looking
to the deposition of the prosecutrix at Exh.12, it is stated by her
that they left the house on their own. It was a pre-meditated action
on their part. It is also stated by her that in her deposition that
they have left the house to assist their brother financially. They
left house with some additional cloths and with some money. They were
in search of work and they reached at Mahemdabad railway station.
They met the present appellants at Mahemdabad railway station.
Thereafter, they had gone to village known as Uttarsanda (1st place)
where they (prosecutrix as well as her sister) resided for about 10
days and they worked in the field. Thereafter they had gone to
another village (2nd place) by rickshaw and they were residing in one
house. There they stayed for about five to six days. Thereafter,
again they have travelled from that village to a field of tobacco at
village: Vadod (3rd place) and there they worked for few days. It is
also stated by the prosecutrix in her deposition that from that
tobacco field, they had gone to Anand city (4th place) and from
Anand, they had again returned to tobacco field. Again they stayed
for few days. Thereafter again from tobacco field, the prosecutrix
had gone to Anand. It is alleged by her that she was taken to the
hotel (5th place) where she was raped by unknown persons. Again
thereafter, the prosecutrix had travelled to Vadodara (6th place).
From Vadodara, it is stated by her that she was taken in one tempo
vehicle and she was walking alongwith the present appellants for
three to four kms. at about 2 to 3 a.m. night hours and thereafter,
she was thrown in a gutter line. At about 7.00 a.m., she was rescued
by P.W.14, who had thereafter, taken her to prosecution witness
No.15. Looking to this narration of facts in her deposition, it
appears that the prosecutrix as well as her sister had visited
several places from Mahemdabad, thereafter at Uttarsanda, thereafter
at one more village name of which has not been given, thereafter at
field of tobacco at village: Vadod, fourthly at Anand city, fifthly
at a hotel, then at Vadodara (6th place). Thus, travelling was done
through several types of vehicles, i.e. by train, by a tempo, by
rickshaw and, then, she has narrated that she had also walked for 2
to 3 kms. alongwith appellants. Nowhere she has shouted nor she has
narrated that she and her sister were kidnapped by the appellants. In
train, there must be several persons. In tempo, there must be several
other persons. The place at which she had done labour work, as per
her narration in her deposition, several persons whom she must have
met. But never any complaint was made, neither by the prosecutrix nor
by her sister Raziabanu about their kidnapping by the appellants.
There is no evidence by any prosecution witness that these girls have
ever complained about their kidnapping or rape before any prosecution
witness.
6. Same
is the case with the prosecutrix so far as allegation of rape is
concerned. Looking to her deposition, it is stated that she was
residing with the appellants for several days at several places.
After several days of offence, FIR was registered. As stated
hereinabove, the offence has taken place on 23rd May,1998 whereas FIR
was registered on 9th October,1998. Despite the fact that she was
knowing the names of the accused, she has never stated the fact of
rape before the prosecution witness No.14 who had rescued her first
in point of time from gutter line as stated by her nor she has given
the names of the accused before prosecution witness No.15 before she
was taken by P.W.14. Likewise, the allegation of rape was also not
revealed against the appellants by the prosecutrix before the doctor
by whom she was examined i.e. before prosecution witness No.13.
Prosecution witness No.13 Dr.Naishyat Bhanubhai Bhatt has issued a
certificate after examining prosecutrix, is at Exh.40. It is stated
by Doctor in the case history that prosecution had sexual intercourse
on 7.7.1998 by somebody. She had intercourse by different men. She
does not know the names. The doctor has also observed in the
certificate that no external injuries are seen on her body. No
external injuries on her private part. No semen on clothes nor on
pubic hair and hymen was ruptured. She had intercourse in past also.
These are the observations in the certificate issued by the doctor
after examination of the prosecutrix.
7. It
is also stated by the prosecutrix in her deposition that she and her
sister were taken by the accused and the present appellant No.1 was
treating them as sisters, as per the cross-examination of the
prosecutrix. It is also stated by her that at certain places, they
were kept separately in separate room. Looking to the FIR, there is
no allegation against the appellant No.1 that she was raped by the
appellant No.1. Looking to the deposition of the prosecutrix, it is
not the case of the prosecutrix in her examination-in-chief that she
was ever raped by appellant No.1. Even during the cross-examination,
there was no such case of the prosecution. Looking to her deposition,
it is only upon query raised by the court, it is answered by the
prosecutrix that the appellant No.1 had sexual intercourse with the
prosecutrix against her desire, which is before she was thrown in a
gutter line. Looking to this deposition, FIR and her silence before
the prosecution witness Nos.14 and 15 as well as before Doctor-P.W.13
and looking to the improvements made by her in her deposition, her
deposition inspires no confidence. It requires assurance (if not
corroboration) from other circumstances or evidence as per the
decisions rendered by the Hon’ble Supreme Court in the cases reported
in (i) (2007)1 SCC (Criminal) 161 (ii) (2007)1 SCC (Criminal) 546
(iii) (2007)1 SCC (Criminal) 198 and (iv) (2008)2 SCC (Criminal) 207.
8. Looking
to the deposition of prosecution witness No.2, who is the brother of
the complainant, he has narrated the facts which were stated by the
complainant to him. It also appears that after the prosecutrix as
well as her sister or sister of prosecution witness No.2 namely
Raziabanu left the house on 23rd May,1998, no complaint was ever made
by this P.W.No.2 before anyone, neither before neighbours nor before
relatives nor before other village people, much less before police.
It is stated by P.W.2, brother of the complainant that as police came
from Mahemdabad Police Station, he had gone to police station, where
he saw his sister.
9. Looking
to the deposition of P.W.3 Chhanabhai Dhulabhai Chauhan, who is a
panch witness of panchnama of clothes of Accused No.1 and of scene of
offence panchnama, which are at Exhs.16 and 17. P.W.No.4 namely
Amarsinh Babarbhai, who is a witness of panchnama of clothes of the
complainant, which is at Exh.19 and also a witness of panchnama
(Exh.20) of gutter line (canal), from where, the complainant was
rescued by P.W.14. It is also stated by this witness that there was
water in this gutter line upto the level of 7 ft.. P.W.5 Arjunbhai
Chhanabhai Barot, who is panch witness of place, where the present
appellants were residing, which is also a place at which rape was
committed by several persons. This panchnama is at Exh.22. P.W.6 is
the panch witness of test identification parade, namely Mumtazbanu
Riyazahmed. It is stated by this witness that the present appellants
were identified by the prosecutrix in test identification parade.
10. P.W.No.
7 is Sureshbhai Radhavprasad, who is a hostile panch witness of
clothes of the deceased Raziyabanu. It is stated by him that there
was no person present before police and no photographs of the dead
body were shown to him nor the clothes of the deceased were
identified by anybody.
11. The
prosecution witness No.8 is Pintukumar Kalyanprasad Aggrawal, who is
also a panch witness of the clothes of the deceased, who has also
been declared hostile witness. Thus, he is not supporting the
panchnama drawn at Exh.27.
12. The
next prosecution witness is P.W.No.9 Icchaben Udesing. It is stated
by her that she does not know the appellant No.1. She has been
declared hostile. The prosecution witness No.10 is Rajeshbhai
Dahyabhai, who is the owner of tobacco field. It is stated by him
that the prosecutrix as well as another girl were working in his
field and present appellant Nos.1 and 2 had brought the prosecutrix
as well as her sister for work. They were residing in a separate
room. This witness has not stated that prosecutrix or her sister had
made any complaint of kidnapping or rape by any one before him. It is
stated that these girls and appellants were residing in a room
allotted to them and were working in tobacco field. P.W. No.11 is
Minaben Rajnikant Dave, who has accepted various parcels and samples
in sealed condition from Mahemdabad Police Station. Serologist’s
report was drawn by her, which is at Exh.33. Likewise, another report
was also prepared and signed by her at Exh.32. Looking to this FSL
report, clothes of prosecutrix were not having blood marks of group
of appellant No.1 nor there was any mark having semen. Mark “P”
underwear of deceased. Mark “M” “kurta” of
prosecutrix – complainant. No semen is found. Blood group is
uncertain. Sample of semen of accused- appellant no.1 was not taken.
no analysis report. Vaginal swab of deceased Narg’s was not taken as
per cross-examination of Doctor -P.W.13, otherwise it would have
helped in identifying it is of which accused spermatozoa. No marks of
semen on clothes of prosecutrix. Looking to these documents at
Exhs.32 and 33, from the clothes of the deceased, it cannot be said
that the offence of rape was committed by the present appellant No.1.
P.W.No.12 Mohmedhasim Habibmiya Gandhi, who is the Executive
Magistrate, before whom, test identification parade was carried out.
It is stated by him that the prosecutrix had identified accused and
panchnama was drawn at Exh.67 by him.
13. P.W.No.13
is Dr.Naishyat Bhanubhai Bhatt, who had examined the prosecutrix on
10th July 1998. Looking to his deposition, it is categorically stated
by him that when the prosecutrix was examined, she had stated that
she was raped by different persons and on 7th July,1998 at night
hours, somebody had sexual intercourse with her. She had not given
any name to him. It is to be noted that as per the allegations
levelled by the prosecutrix, the present appellants had taken the
complainant as well as her sister and appellant No.1 had committed
rape upon complainant. Nowhere name was given by her of the
appellant No.1, not even before this P.W.No.13, though she was
knowing appellants and though she has stayed with them at several
places and for several days, as per deposition of prosecutrix. No
external injuries were found by this Doctor. The certificate is also
given by this witness at Exh.40, which also reflects that in the case
history, she has not stated the name of the present appellant No.1.
It is also observed in the said certificate at Exh.40 that no
external injuries were found on her body. No injuries on her private
part. No semen on clothes was found nor on pubic hair and hymen was
ruptured.
14. P.W.
No.14 Fatesinh Jethabhai, who is the witness, who has rescued the
prosecutrix from gutter line, where she was thrown by the present
appellants, as per the deposition of the prosecutrix. She was thrown
in the gutter line at about 3.00 a.m., as per P.W.No.1. She remained
in the gutter line upto morning hours and after 7.00 a.m., she was
saved by this P.W.No.14. Thereafter, this witness had taken her to
the prosecution witness No.15. Before this P.W.No.15 also, the
prosecutrix has not stated the name of the present appellants, though
she had stayed with them at several places for several days as stated
in her deposition at Exh.12.
15. P.W.
No.15 Amrasinh Babarbhai, who states that P.W.No.14 brought the
prosecutrix before him. He has identified her from the photographs of
the prosecutrix. This witness states that the prosecutrix had not
stated anything before him that how she fallen/ thrown in gutter line
and who threw her in the gutter line. Though this witness asked her
specifically, no name was given by the prosecutrix nor any fact of
rape was ever stated by this prosecutrix before P.W.14 or P.W.15.
There is not a single avernment or statement that the prosecutrix had
narrated the story of rape or other offence committed by the present
appellants were narrated before these two witnesses, who met her for
the first time, after she was rescued from the gutter line.
16. P.W.No.16
Rajamanikam Odiya who is the witness who has seen the dead body of
the deceased Raziyabanu on railway lines. This witness is serving in
Railway department and his duty is to check railway lines from
Nandesari to Vasad bridge and while checking these railway lines at
bridge No.621, he saw dead body of Raziyabanu and thereafter, police
was informed by Nandesari Station Master and this is how dead body of
Raziyabanu was found out. P.W. 17 is the teacher of the School, who
has presented the birth certificate of the prosecutrix at Exh.49,
which reveals the fact that the birth date of the complainant as
20.11.1980 and that of the deceased as 5th February,1978. P.W.Nos.18
and 19 are witnesses, who have witnessed photographs of the deceased
taken by the photographer and of railway line wherefrom the dead body
of Raziyabanu was found.
17. P.W.21
is Dr. Vijaysinh Ganpatsinh Rathod, who has carried out postmortem of
the deceased Raziyabanu. Postmortem was carried out on 6th July,
1998. It is stated by this witness that there were external injuries
which were referred in column no.17 of the postmortem notes. There
were marks of injuries and the neck of the deceased having contusion
of 8 x 7 cm. There was a fracture of hyod bone and the cause of death
was due to strangulation. Thus, death of Raziyabanu was homicidal
and injuries were ante mortem as stated by him in his deposition.
P.W.No.23 is police witness Ramsinh Fulsinh Dabho, who has
investigated the case, who has collected various evidences and sent
for FSL report. He has also drawn various panchnamas of clothes of
the accused, prosecutrix and of deceased Raziyabanu.
18. Looking
to the cumulative effect of the evidence of these prosecution
witnesses, it appears that as per the prosecutrix, the present
appellants were known to the prosecutrix and her sister even before
she and her sister left the house. The facts narrated in the FIR are
different than her deposition. Never she has stated in the FIR that
the appellant No.1 has committed rape upon her, whereas in her
deposition, the prosecutrix has stated that when query is raised by
the court that she was raped of appellant No.1. This is an
improvement. This is a material deviation from her FIR. Such an
important aspect of the matter no lady would forget to mention in the
FIR. Secondly, she has stated that both the sisters had gone at
various places with the appellants. There are about seven such
places, which have been narrated hereinabove over a period of more
than thirty days. Fairly several chances they were having, either to
run away or to shout and to inform other persons. Neither they have
shouted nor they have run away from the alleged custody/kidnapping of
the present appellants. On the contrary, looking to the deposition of
the prosecutrix, voluntarily, she alongwith her sister had left the
house. They were in search of work to assist their brother who was
the only earning member in the family. Looking to this aspect of the
matter, the offence of kidnapping and abduction by the present
appellants is not established. It is stated by the prosecutrix that
initially, they were taken at one village namely Uttarsanda and
thereafter to another village, thereafter at the field of tobacco,
thereafter in the city of Anand and thereafter, again they came back
at the field of tobacco at Village: Vadod, resided there for several
days. Thereafter, again the prosecutrix and her sister were taken at
one hotel at Anand. Again the prosecutrix came back to tobacco field
and thereafter, again she was taken at the city of Vadodara. At no
place, she has shouted nor she has run away from the custody of the
present appellants. They have travelled by train, truck and rickshaw,
publically. Likewise, she has never stated the fact of alleged
kidnapping and rape before anyone. Several persons must be there in
the village or at tobacco field where she was working. Even she was
working at field at village- Uttarsanda. Several persons were there
in the tobacco field who must have worked with the prosecutrix. No
such witness has been examined by the prosecution nor it is the case
of the prosecutrix that she has ever stated these allegations before
anyone. This shakes our confidence in her. The prosecutrix is not a
reliable witness and, therefore, corroborative assurance is required
to be gathered, either from direct evidence or from circumstance.
19. Now,
looking to other evidence collected by the prosecution, the best
available evidence is that of P.W. No.14, who has rescued the
prosecutrix from gutter line. There is another reason for seeking
assurance from other evidence of the deposition of the prosecutrix
that there is no allegation of rape upon the appellant No.1 in the
FIR filed by the prosecutrix. Though several opportunities were with
the prosecutrix as she has moved from place to place during spread
over period of more than 30 days, neither she has shouted nor has she
run away nor has stated the alleged facts of kidnapping or abduction
and rape by the appellant no.1, to anyone. She has travelled in
railway, rickshaw, bus/transportation and by walking, but nowhere to
anyone these facts were disclosed. The deposition of the prosecutrix
is not trustworthy or found reliable. Also for the reason that she
has not stated any facts of kidnapping or rape even before i.e.
Fatesingh Jethabhai P.W. No.14 or P.W.No.15 i.e. Amarsingh Babarbhai,
who has rescued the prosecutrix. It is stated by the prosecution
witness Nos.14 and 15 that a specific question was asked to her but
she had not given the names of the persons who threw her in gutter
line. Likewise, in the case history given to Doctor who is P.W.
No.13, the prosecutrix has not given the names of appellant No.1.
Thus, several were the chances available to her to run away and to
disclose names of accused-appellants, but she has not narrate these
allegations before anyone, neither even before her brother who is
P.W. No. 2. This witness has also not stated that the prosecutrix has
informed him that the present appellant No.1 had committed rape on
her. No woman will forget or miss to mention, so easily the fact of
rape. This prosecutrix has not put any allegation in the FIR against
appellant no.1, nor as stated hereinabove, before any of the
prosecution witnesses. Thus, there is no assurance of her deposition
from other evidence. Looking to the medical evidence, it appears that
there are no marks of injuries upon her. Medical evidence of the
prosecutrix is at Exh.40, which reflects that she does not know the
name of the person who committed rape on her. There are no external
injuries seen on her body. No external injuries on her private part.
No semen on clothes of the prosecutrix or on her pubic hair and hymen
was found ruptured. She had sexual intercourse in the past. Thus, the
prosecutrix being a healthy girl and residing in a rural area,
otherwise well built with the aforesaid facts and having no marks of
injuries as per certificate Exh. 40 given by P.W.13 inspires no
confidence in the deposition of the prosecutrix. Her deposition is
not trustworthy and is having no assurance from the corroborative
circumstances. Thus, the prosecutrix and her sister had left the
house in search of work, voluntarily by taking their clothes and some
rupees. They had gone to Mahemdabad railway station and thereafter
from place to place for a period of about 30 days, alleging rape and
kidnapping and abduction, upon appellants without telling to anyone,
though met several persons in tobacco field or when they travelled by
train, bus, truck and rickshaw nor to P.W.13. – doctor nor to P.W.
Nos.14 and 15, who rescued her nor even to her brother, who is
P.W.No.2.
Thus,
on the facts of the case, the prosecutrix did not appear to be a
witness of sterling quality, on whose sole testimony a conviction
could be sustained. She tried to conceal the facts (in FIR, no
allegation of rape upon appellant No.1 whereas as per her deposition,
she improved the case and levelled allegation against appellant
no.1). Thus, there is deviation from the case narrated in the FIR.
19.1 It
has been held by Hon’ble Supreme Court in the case of Sadashiv
Ramrao Hadbe V/s. State of Maharashtra and another reported in
(2007)1 SCC (Cri) 161, para-9, reads as under:
“9. It
is true that in a rape case the accused could be convicted on the
sole testimony of the prosecutrix, if it is capable of inspiring
confidence in the mind of the court. If the version given by the
prosecutrix is unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and belie the case
set up by the prosecutrix, the court shall not act on the solitary
evidence of the prosecutrix. The courts shall be extremely careful in
accepting the sole testimony of the prosecutrix when the entire case
is improbable and unlikely to happen.”
19.2 It
has been held by Hon’ble Supreme Court in the case of Ramdas and
others V/s. State of Maharashtra reported in (2007)1 SCC (Cri) 546,
para-23, reads as under:
“23. It
is no doubt true that the conviction in a case of rape can be based
solely on the testimony of the prosecutrix, but that can be done in a
case where the court is convicted about the truthfulness of the
prosecutrix and there exist no circumstances which cast a shadow of
doubt over her veracity. If the evidence of the prosecutrix is of
such quality that may be sufficient to sustain an order of conviction
solely on the basis of her testimony. In the instant case we do not
find her evidence to be of such quality.”
19.3 It
has been held by Hon’ble Supreme Court in the case of Narayan
alias Naran V/s. State of Rajasthan reported in (2007)3 SCC (Cri)
198, para-11, reads as under:
“11. In
the cross-examination the prosecutrix (PW 3) stated that she boarded
the trolley at about 5 o’clock in the evening and by 7 o’clock they
reached Singhpur Village. There were number of villages between
Singhpur and Akodiya. It is also required to appreciate that she
stated in her evidence that even after the accused committed rape on
her she sat in the tractor happily. It is not stated by her in her
evidence that she raised any hue and cry even while passing through
the number of villages. In the first information report (Ext.P-5) she
stated that the accused committed rape on her thrice but in the
evidence she stated that the accused committed rape on her only twice
and not thrice. According to her the rape was committed on her on
kankar (rough way). She did not state that she offered any
resistance though she was physically very strong. Medical report
(Ext. P-1) says that there were no injuries on the body of the
prosecutrix (PW 3). There were no injuries on her private part.
It is ultimately opined that “no definite opinion can be given
regarding rape, however, she is habitual to sexual intercourse”.
In the circumstances, is it possible to believe that the prosecutrix
(PW 3) has been subjected to rape twice by the accused as alleged? In
the first information report (Ext.P-5) it is stated that the
prosecutrix (PW 3) has been subjected to rape by the accused thrice
but in her evidence she stated that she had been subjected to rape
only twice. The accused even according to the prosecutrix (PW 3) was
driving the tractor from Singhpur to Bharkiya crossing through a
number of villages. It is not stated by the prosecutrix (PW 3) that
she made any attempt to get down from the tractor at any point of
time. On the other hand, it is stated by her that she sat in the
tractor happily.”
(Emphasis
supplied)
19.4 It
has been held by Hon’ble Supreme Court in the case of Radhu V/s.
State of Madhya Pradesh reported in (2008)2 SCC (Cri) 207,
para-12, reads as under:
“12. Dr.Vandana
(PW 8) stated that on examination of Sumanbai, she found that her
menstrual cycle had not started and pubic hair had not developed, and
that her hymen was ruptured but the rupture was old. She stated that
there were no injuries on her private parts and she could not give
any opinion as to whether any rape has been committed. These were
also recorded in the examination report (Ext. P-8). She, however,
referred to an abrasion on the left elbow and a small abrasion on the
arm and a contusion on the right leg of Sumanbai. She further stated
that she prepared two vaginal swabs for examination and handed it
over along with the petticoat of Sumanbai to the police constable,
for being sent for examination. But no evidence is placed about
the results of the examination of the vaginal swabs and petticoat.
Thus, the medical evidence does not corroborate the case of sexual
intercourse or rape.
(Emphasis
supplied)
20. Cumulative
effect of the aforesaid aspect and matter and evidence has not been
appreciated by the trial court. Looking to the FSL report, it appears
that there is no corroboration of this evidence also. From the
clothes of the prosecutrix, no semen were found and blood group was
indecisive. Therefore, there is no question of matching with the
accused whatsoever arises. Sample of semen of accused- appellant no.1
is not taken. P.W.13- Dr.Nashgat in his cross examination states that
if vaginal swab of deceased Raziabanu would have taken, it would have
known, it was (of which accused) whose ‘dead spermatozoa’. Thus, to
the deposition of the prosecutrix, there is no support by this FSL
report, which are at Exhs.32 and 33.
21. Looking
to the evidence on record, there is no evidence against the present
appellants so far as murder of Raziyabanu is concerned. There is no
live link between appellant and murder of Raziabanu. There is no eye
witness of this murder. The whole case is based upon circumstances
and mainly upon solitary deposition of the prosecutrix, she is the
first and last witness to state that it is the present appellants who
have committed murder of her sister. There is no corroboration to
this fact also from other evidence. The dead body was found out from
the railway line. The only evidence is of Serologist’s report.
Looking to this report at Exh.33, from the clothes of the deceased
Raziabanu, especially of knicker, it is stated in the report that
there was presence of blood marks with semen having “A” and
“O”. Antigen activity was found present of groups “A”
and “O”. This is the only evidence corroborating to
solitary deposition of the prosecution connecting the accused and
death of the deceased. If this is analysed, accurately, it gives no
evidence by which it can be said that the offence, beyond reasonable
doubt is proved against the present appellants that they have
committed murder of Raziabanu after committing rape by accused No.1
upon her. The allegations and accused are not linked with any
evidence. The prosecution has established that there was a homicidal
death of the deceased. Injuries upon her were ante mortem, but
important link between accused and death is missing. It is only few
lines in the deposition of the prosecutrix P.W.1, who has stated that
her sister has been murdered by appellants. There is no direct
evidence nor there is evidence of chain of circumstances against the
present appellants linking them with the murder of the deceased.
22. As
stated hereinabove, the deposition of the prosecutrix inspires no
confidence and, therefore, assurance from other circumstances in the
facts of this case, is necessary, which is found absent, in the
present case.
23. So
far as murder is concerned, it requires corroboration which is also
lacking in the facts of the present case. Thus, the prosecution has
failed to prove, beyond reasonable doubt, the offence of murder of
Raziyabanu by the present appellants. This aspect of the matter has
not been properly appreciated by the trial court.
24. It
is also submitted by the learned Additional Public Prosecutor that in
test identification parade, the prosecutrix has identified the
present appellants and, therefore, there is enough
assurance/corroboration to her deposition. This attractive argument
is not accepted by this Court mainly for the reason that looking to
the cross-examination of P.W.1 i.e. prosecutrix, it has been stated
by her that out of the persons who were identified by her, one of
them was travelling with her in police vehicle. It is also stated by
the prosecutrix in her FIR that she knows the appellants, names of
both the appellants have been given in the FIR. Thus, she has already
narrated her acquaintance with both the appellants and, therefore,
there is no much significance of test identification parade so far as
the appellants are concerned.
25. As
a cumulative effect of the aforesaid evidence and reasons, the
charges levelled against the appellants are not proved.
26. Thus,
this appeal is allowed. The judgment and order dated 30th March,
1999 in Sessions Case No. 298 of 1998 passed by the learned
Additional Sessions Judge, Kheda at Nadiad is hereby quashed and set
aside. The appellants are acquitted of the charges levelled against
them. They shall be set at liberty forthwith if not required in any
other case. Fine, if paid, shall be refunded to the appellants.
(A.L.Dave,J)
(D.N.Patel,J)
***darji
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