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CR.A/1771/2005 5/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1771 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
========================================================
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 ?
========================================================
VAJABHAI
DAHYABHAI RATHOD - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
========================================================
Appearance :
MR
NITIN M AMIN for Appellant(s) : 1 - 4.
MR KC SHAH, APP for
Opponent(s) :
1,
========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 14/11/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
The
challenge in this appeal is to the judgment and order rendered by
learned Additional Sessions Judge, Fast Track Court, Nadiad on dated
19.7.2005 in Sessions Case No.89 of 2001. By virtue of the impugned
judgment and order, the learned trial Judge convicted all the four
appellants, who were original accused in the aforesaid sessions case
for the offences punishable under Sections 363, 366 and 376
r/w.Section 114 of the Indian Penal Code (??IPC?”, for short) and
each accused was sentenced to undergo rigorous imprisonment for 5
years and fine of Rs.2000/-, in default to further undergo simple
imprisonment for one year for the offences punishable under Sections
363 and 366 of the IPC and rigorous imprisonment for 10 years and
fine of Rs.5000/-, in default to further undergo simple imprisonment
for 2 years for the offence punishable under Section 376 of the IPC.
The appellants ? accused were acquitted from the charge of offence
punishable under Section 201 r/w.Section 114 of the IPC.
The
prosecution case in nutshell is as under:-
On
dated 3.7.2000, at about 11 p.m., during night hours, Rashmi, aged
about 4-1/2 years was sleeping on a cot along with her parents in
the house situated at village Mithanamuvada, Tal.Thasra,
Dist.Kheda. It is the case of the prosecution that at that time the
four accused persons kidnapped Rashmi, with intent to rape her and
she was taken to outskirts of the village, near a pond and all the
four accused persons committed sexual intercourse on the girl
Rashmi and gang-raped her. It is further the case of the
prosecution that with a view to destroy the evidence, the accused
persons removed all the clothes from the body of Rashmi and they
washed their own clothes. Mangalbhai Rathod, father of Rashmi
lodged FIR in connection with this offence in Thasra Police
Station. The FIR was registered and the police commenced
investigation. Statements of material witnesses were recorded.
Necessary panchnamas were drawn in presence of Panch witness.
Clothes of the accused persons were recovered by drawing panchnama.
Medical examination of Rashmi was conducted and necessary
certificates were obtained by the police. Clothes etc. were sent to
Forensic Science Laboratory (??FSL?”, for short) for due
analysis. Accused persons were arrested. After completion of the
investigation, the police filed chargesheet in the Court of learned
JMFC, Thasra. As the offence was exclusively triable by the Court
of Sessions, the learned Magistrate committed the case to the Court
of Sessions, Kheda at Nadiad, which was registered as Sessions Case
No.89 of 2001 and the said case came to be transferred to the Court
of learned trial Judge for trial in accordance with law.
The
learned trial Judge framed charge at Exh.30 against all the four
accused persons for the offences punishable under Sections 363,
366, 376, 201 r/w.Section 114 of the IPC. As the accused did not
plead guilty and claimed to be tried, the prosecution adduced its
oral and documentary evidence. After the prosecution completed its
evidence, the learned trial Judge recorded further statements of
the accused persons under Section 313 of the Code of Criminal
Procedure, wherein the accused persons denied generally all the
allegations levelled against them and they submitted that they were
falsely implicated in this case.
The
learned trial Judge after appreciating the evidence on record and
after considering the arguments advanced on behalf of both the
sides, delivered the impugned judgment and he was pleased to
convict all the four accused persons for the offences punishable
under Sections 363, 366, 376 r/w.Section 114 of the IPC and awarded
the sentence as hereinabove described in this judgment. By virtue
of the impugned judgment, the learned trial Judge granted benefit
of doubt to all the accused persons in connection with commission
of offence punishable under Section 201 r/w.Section 114 of the IPC
and they were acquitted from the charge of said offence. Hence, the
original accused persons preferred this appeal.
During
the course of the argument, learned advocate Mr.Amin for the
appellants submitted that considering the entire oral and
documentary evidence on record, the prosecution miserably failed to
prove that all or any of the accused persons are involved in this
offence. It is submitted that in the FIR, no names or any
description of the accused persons are mentioned. It is submitted
that even the fact is not disputed that Rashmi, aged 4-1/2 years was
subjected to sexual intercourse, yet, the very vital issue would be
the proof regarding involvement of the accused persons in connection
with this crime. There is no reliable evidence worth the name,
fixing the identity of the accused persons. Even there is no
material whatsoever on record to show as to how the accused persons
came to be arrested in connection with this offence by the
Investigating Police Officer. That the prosecution relied upon the
deposition of Rashmi (PW-11) for fixing the identity of the accused
persons. It is submitted that the incident occurred on dated
3.7.2000, during night hours. The deposition of Rashmi before the
trial Court was recorded on dated 21.2.2005, after about 4-1/2 years
from the date of the incident, for the first time in the Court.
Rashmi stated that she was raped by four accused persons, who were
present in the Court. Her police statement was not recorded by the
police. Even her deposition regarding the so-called identification
of the accused for the first time in the Court, is very shaky. As
per the prosecution case, four unknown accused persons raped her,
that too during night hours and there is no evidence whatsoever to
come to the conclusion that in the house, where Rashmi was sleeping,
there was any electric light on, or that there was availability of
light at the place where the incident occurred. It is submitted that
the prosecution relied upon the panchnama to the effect that one of
the appellant ? accused person Vajabhai in presence of Panchas
took the Panchas and Investigating Police Officer to the place of
incident. However, both the Panchas in connection with the
panchnama, Exh.37 turned hostile. Even the deposition of
Investigating Police Officer in connection with this panchnama,
Exh.37, is not cogent and convincing. Virtually, the panchnama,
Exh.37 can be branded as ?Sdemonstration panchnama??. It is
outright not admissible in evidence. The prosecution relied upon one
solitary piece of evidence that the blood group of Rashmi happened
to be of ?SB?? Group and on the undergarment of appellant ?
accused Arvindbhai Keshavbhai, blood mark showing the blood Group
?SB?? was found by the FSL. However, as a matter of fact,
considering the FSL report and especially the serological report, it
is crystal clear that even the blood group of appellant ? accused
Arvindbhai Keshavbhai is ?SB??. Even no reliance can be placed
upon the solitary piece of evidence. It is submitted that all the
accused persons are alleged to have raped Rashmi, aged about 4-1/2
years. But, considering their medical evidence, no injury whatsoever
was found either on their body or even on their private part. Thus,
even the fact regarding Rashmi having sexually abused and was raped
is accepted, yet, the prosecution miserably failed to prove the very
involvement of the accused persons in connection with this offence.
Therefore, it is submitted that the appeal be allowed and the
impugned judgment and order delivered by the learned trial Judge
recording conviction of the accused be set-aside and the appellants
? accused be acquitted.
Learned
APP Mr.Shah for the respondent ? State vehemently opposed this
appeal and submitted that considering the deposition of victim
Rashmi, she clearly identified all the accused persons during the
course of her deposition before the trial Court. There is no reason
to doubt her testimony. That considering the deposition of witness
Rameshbhai Rathod, Exh.46, who happened to be the uncle of Rashmi,
he deposed that on the day on which the incident occurred, all the
four accused persons had come to the house of Rashmi, to meet her
father Mangalbhai, at about 5 p.m. in the evening and they met
Mangalbhai and thereafter they left. It is submitted that Rashmi?”s
father Mangalbhai and all the four accused persons were working in
the field of Pravinbhai and thus, the accused persons were not
unknown to the family of Rashmi. It is further submitted that
considering the evidence in form of FSL report and especially the
blood marks on the garments of the accused persons, the prosecution
successfully adduced corroborative piece of evidence connecting the
accused with the crime. That the medical evidence clearly reveals
that Rashmi, aged about 4-1/2 years was sexually abused and was
raped. Thus, it is submitted that the appeal be dismissed.
We
have given our thoughtful consideration to the submissions made on
behalf of both the sides. From the submissions made on behalf of the
appellants by learned advocate Mr.Amin and perusing the relevant
evidence adduced in sessions case before the trial Court, the moot
question which arises is regarding the identification of the accused
persons. Considering the overall evidence on record and especially
the report regarding medical examination of Rashmi, it cannot be
denied that she was not sexually abused or that the factum of rape
having been committed on her was not proved by the prosecution. But,
re-appreciating the evidence on record, we are of the opinion that
there is substance in the arguments advanced by learned advocate
Mr.Amin for the appellants that the evidence adduced by the
prosecution regarding the identity of the accused linking them with
the crime, is shaky and cannot be termed as an evidence beyond any
reasonable doubt.
Apart
from the fact that in the FIR lodged by Mangalbhai, the father of
the victim Rashmi, the name of any accused is not mentioned, yet,
considering the deposition of Investigating Police Officer ?
Dy.S.P. Mr.Damor, Exh.109, he deposed that he arrested all the four
accused persons in connection with this crime on dated 7.7.2000.
Again, apart from the fact as to how and on what basis the accused
came to be arrested on dated 7.7.2000 in connection with the FIR
lodged by Mangalbhai on dated 4.7.2000 against unknown accused
persons, the fact remains that Investigating Police Officer nowhere
stated in his deposition about any Test Identification Parade
(??TIP?”, for short) having been conducted in presence of
witnesses or the victim of the accused persons subsequent to their
arrest. Admittedly no TIP was conducted.
There
is no rule of evidence that without any prior TIP, if an accused is
identified for the first time by any witness in open Court, during
the course of his deposition, said evidence becomes inadmissible or
that per se it becomes doubtful evidence. The Court may rely upon
such evidence regarding the identification of the accused, provided
the testimony of such witness inspires confidence of the Court and
is cogent and convincing and is free from any reasonable doubt. In
the instant case, the incident occurred on dated 3.7.2000 during
night hours in darkness and the accused persons came to be
identified for the first time in open Court by victim Rashmi, who
was then aged about 4-1/2 years, during the course of her deposition
on dated 21.2.2005 i.e. approximately about 4-1/2 years from the
date of occurrence. As per the prosecution case, the incident
occurred during night hours. There is no evidence whatsoever to show
that there was availability of electric light in the house of the
victim when she was kidnapped from her house or the place where the
incident of rape occurred. Thus, it cannot be said that the victim
had opportunity to identify all or any of the accused persons during
the night hours. In this connection, it would be necessary to
consider the deposition of Rashmi Mangalbhai, Exh.54. According to
her, she was raped by four unknown persons. She stated that she
cannot identify the persons who raped her. However, she stated that
all the four persons, who raped were present in the Court. She
stated that after the incident she was left alone and while she was
coming towards her house, one person who belonged to the village,
met her and he brought her to her house. In her cross-examination,
she stated that she was told by her mother that today she was
required to go to Court for her testimony. She further stated that
she inquired to her mother as to what she should speak. In her
cross-examination, she stated that her parents are working as
labourers in the field of Pravinbhai and that all the four accused
persons are also working in the same field of Pravinbhai. She
further stated that the accused persons used to come to her house
for tea. Under such circumstances, considering her deposition, it is
true that during the course of her deposition, she stated that the
persons who raped her were present in the Court. However, she
further stated that she was brought to the Court by her mother and
she was told by her mother that she was required to give her
testimony and thereupon, she had also inquired from her mother as to
what she has to speak. Moreover, considering her deposition, it
transpires that as a matter of fact, the accused persons were not
unknown to her. Both her parents and accused persons were working as
labourers in the field of Pravinbhai and even prior to the incident
the accused persons used to come to her house. Despite this there is
nothing on record that when her parents and uncle inquired to her as
to who committed such mischief with her, she gave names of the
accused persons or that she told them that the persons, who raped
her had often come to their house.
7.1 In
this connection considering the deposition of Mangalbhai, the father
of the victim and the first informant, Exh.42, he stated that one
Somabhai brought Rashmi to his house. Nothing is emerging from his
deposition that either before he lodged the FIR or after the lodgment
of FIR, Rashmi ever told him that the persons who caused mischief
with her, were not unknown and they had often come to their house.
The deposition of Kailasben, mother of Rashmi runs on the same line.
Considering the deposition of witness Somabhai Parmar, Exh.48, he
stated that at about 5 a.m. in the morning, while he was going to
answer nature’s call, near the pond of their village, at that time
he heard shouting of daughter of Mangalbhai and he brought her to
her house. Considering the deposition of witness Rameshbhai
Rathod, Exh.46, who happens to be the uncle of Rashmi, he stated
that on the day of incident, at about 5 p.m. in the evening the four
accused persons had come to the house of his brother Mangalbhai and
after tea etc. the accused had left the house of Mangalbhai. However,
it is stated that during night hours, he did not see any person
coming in the house. The prosecution declared the witness as hostile
witness. During the cross- examination
made on behalf of the prosecution, he stated that in his police
statement he had stated before the police that accused Vajabhai had
come to his house during night. He also stated that he
was knowing the accused persons. However, in his cross-examination
on behalf of the defence, he stated that when he woke-up from
his sleep, only at that time he came to know that Rashmi was not in
her cot. Under such circumstances, considering the overall
testimony of witness Rameshbhai, it becomes clear that
basically the accused persons were not unknown to family of the
victim. Rameshbhai stated that on the day of the incident, at about
5 p.m. in the evening, accused had come to their house and they had
taken tea and then they left. However, he specifically stated that
during night hours nobody had come. As stated above, even Rashmi
stated in her deposition that accused persons used to come to her
house. Again, considering the deposition of Rameshbhai, the fact
which emerges is that till the accused persons came to be identified
by Rashmi, after about 4-1/2 years from the date of the incident,
during the course of her deposition before the trial Court, she
nowhere stated either to her parents or to her uncle Rameshbhai that
the persons who raped her were not unknown, but, they were accused
persons.
7.2 As
a piece of circumstantial evidence, the prosecution relied upon the
panchnama, Exh.37 and perusing the panchnama, it transpires that one
of the accused persons named Vajabhai Dayabhai took the Panchas and
the Police Officer to the place of incident and it is stated in the
panchnama that acccused Vajabhai stated that this is the place where
they did mischief with Rashmi. However, both the Panchas Idrisali
Saiyed and Mohamed Vora have been examined by the prosecution in
this case as witnesses and they both did not support the contents of
the panchnama and they had turned hostile witnesses. Investigating
Officer Dy.S.P. Mr.Damor in his deposition, Exh.109 only briefly
stated that accused Vajabhai had took them to the place of
incident and the panchnama was drawn, which is produced at Exh.37.
No other details are given by the Investigating Officer during the
course of his deposition in connection with the panchnama,
Exh.37. Considering the panchnama, Exh.37 as it is, we see
considerable force in the arguments advanced by learned advocate
Mr.Amin that virtually the panchnama can be termed as
?Sdemonstration panchnama??, which is not admissible in evidence,
as per law.
7.3 Similar
is the situation, if we consider the FSL report and especially the
serological report. FSL report reveals that the blood group of Rashmi
is Group ?SB??. So far as blood Group ?SB?? is concerned, it
further reveals that there were blood marks on one undergarment of
appellant ? accused Arvindbhai Kesharbhai and the FSL report
further revealed that the blood marks were of Group ?SB??. However,
considering the report it further transpires that the blood group of
accused Arvindbhai himself was of Group ?SB??. The blood marks
which were there on the pant, underwear and undergarments of other
accused persons were analysed by the FSL and they turned out to be of
Group ?SA?? which is not matching with Group ?SB?? of the
victim Rashmi. Thus, it cannot be said that by circumstantial
evidence, the nexus between the crime and the accused persons can be
said to have been duly established.
In
light of the above discussions, we are of the considered opinion
that the prosecution failed to establish the involvement of the
accused persons in this offence. Under such circumstances, the
appeal deserves to be allowed and the impugned judgment and order
recording conviction of the appellant ? accused persons deserves
to be set-aside.
For
the foregoing reasons, the appeal is allowed. The conviction of the
appellant ? accused persons recorded by the learned trial Judge in
connection with the commission of the offences punishable under
Sections 363, 366, 376 r/w.Section 114 of the IPC in Sessions Case
No.89 of 2001 is set-aside. The appellants -accused are ordered to
be acquitted. They be forthwith released from jail, if no longer
required in any other case. Fine, if paid, be refunded to them.
(A.L.DAVE,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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