Gujarat High Court Case Information System
Print
CR.A/79/1996 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 79 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA sd/-
HONOURABLE
MR.JUSTICE Z.K.SAIYED
sd/-
=========================================
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 ?
=========================================
RATILAL
MAGABHAI VASAVA - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
US BRAHMBHATT, ADVOCATE APPOINTED BY LEGAL AID COMMITTEE for
Appellant(s) : 1,
MR MUKESH PATEL, APP, for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/07/2008
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
The
present Appellant ? original accused in Sessions Case No. 250 of
1994 was charged and tried by the learned Additional Sessions Judge,
Vadodara, for the offences punishable under Sections 376, 323 and
341 of Indian Penal Code (for short ?SIPC??).
The
facts of the prosecution case is that the complainant Maniben, wife
of Budhabhai Bhailal Vasava was staying at her paternal house at
village Mata Bhagod, Taluka Savli. She was married with Budhabhai
Bhailalbhai, resident of Satnagar village, Taluka Savli, but, due to
family dispute her husband went away to Madras and since last 12
months from the date of incident, she was staying with her parents.
During the married life with her husband one son named Ravji, aged
about 7 years and daughter Kamla @ Parul, aged about 4 years were
born. It is the case of the prosecution that on 20.6.1994 paternal
uncle of the complainant was expired and for his funeral ceremony
the complainant went to village Shikar Bhagol with her relatives and
at that time her daughter Parul was also with her. When the
complainant was busy in the said ceremony the prosecutrix was
outside the house and at about 4.00 pm she came back and was crying.
On being asked the minor girl narrated about the incident. Her
clothes were also stained with blood. The prosecutrix explained to
her mother ? complainant that when she was playing near the house
at that time she was tempted by the present appellant ? accused.
She was taken out by him at the field (place of incident) and
committed the rape on her and then ran away. She also found some
injuries on the cheeks. On inquiry the complainant found that the
appellant ? accused Ratilal Vasava has committed the rape on her
minor daughter. Thereafter the complainant, with other persons and
the accused, went to the police and filed complaint against the
present appellant ? accused at Savli Police Station. The Police
has registered the offence punishable under Sections 376, 323 and
341 of IPC. After registering the complaint the Panchnama was drawn.
The prosecutrix and the appellant were sent for medical examination.
The statement of witnesses were also recorded and thereafter on
completion of investigation, the Police filed charge-sheet against
the present appellant ? accused.
When
the offence of rape was registered against the present appellant ?
accused, at that time, the accused with an intention to commit
suicide, has jumped into the well but he survived and the police has
also registered the case against him for the offence under Section
309 I.P.C. and the chargesheet was also filed. However, in the said
case he was acquitted.
After
filing of the charge-sheet, in the present case, as the offence
under Section 376 IPC is exclusively triable by the Court of
Sessions, the learned JMFC, Savli, committed the said case to the
Court of Sessions, Vadodara.
The
appellant ? accused was not in a position to engage an Advocate to
defend his case and hence, he was provided an Advocate by the Legal
Aid Committee to defend his case. Thereafter the charge (Ex.1) was
framed against the present ? appellant accused.
In
order to bring home the charge levelled against the accused, the
prsecution has examined in all 10 witnesses and relied upon their
oral testimonies. They are as under :
P.W. 1 – Madhuben Lallubhai, Ex.5;
P.W.2 – Panch Witness Dixitkumar Pravinchandra, Ex.6
P.W.3 – Panch Witness Kamlesh Jivanbhai Patel, Ex. 8
P.W.4 – Complainant Maniben Punjabhai at Ex.11;
P.W.5 – Witness Manjulaben Naginbhai Vasava at Exh.14;
P.W.6 – PSO Chhaganbhai Shankerbhai of Savli Police
Station,Ex.15;
P.W.7 – Dr. Rajesh N. Desai, Ex.18;
P.W.8 – Dr. Upen M. Mehta at Exh.20;
P.W.9 – Ramjibhai Garbabhai Parmar, PSI ? IO, Ex.24;
P.W.10- Jivansinh Bhikhusinh Solanki, PSI at Ex.29
To prove the culpability of the accused, the prosecution
has also produced and relied upon the following documentary evidence.
They are as under ;
Panchnama
of scene of offence, Exh. 7;
Panchnama
of clothes of victim, Ex.9;
complaint
at Exh.12;
Xerox
copy of Death Certificate of Kamlaben Ex.13;
Copy
of Police station diary at Exh.16;
Yadi
to Medical officer, Ex.21;
case
papers, including medical certificates of the prosecutrix and the
present appellant ? accused at Ex.22;
Forwarding
letter regarding receipt of Muddamal and the FSL Report at Exh.27 &
28;
Yadi
to Medical Officer at Exh.30;
Thereafter,
after examining the witnesses the statement of accused under Section
313 Cr. P.C. was record in which the appellant ? accused has
replied all the questions in the negative, like ?SI do not know??
or ?Sit is a false contention??.
After
considering the oral as well as documentary evidence the learned
Additional Sessions Judge vide impugned Judgment dated 21.12.1995 in
Sessions Case No.257 of 1994 held the accused guilty to the offences
charged against him. The accused was convicted and sentenced to
suffer rigorous imprisonment for life with fine of Rs.4000/- I/d to
under-go further rigorous imprisonment for six months for the
offence punishable under Section 376 I.P. Code, and was further
convicted and sentenced to undergo rigorous imprisonment for six
months with fine of Rs.500/- I/d to under go further imprisonment
for one month for the offence punishable under section 323 I.P. Code
and was also convicted and sentenced for rigorous imprisonment for
six months with fine of Rs.500/- I/d to under-go further rigorous
imprisonment for one month for the offence punishable under Section
341 I.P. Code. The said sentence were ordered to run concurrently.
The fine, if paid, was ordered to be paid to the prosecutrix on she
attaining the majority and till then the said amount was directed to
be invested in a Nationalized Bank.
Being
aggrieved by and dissatisfied with the impugned Judgment and order
of conviction and sentence passed by the learned trial Judge, the
present appellant ? original accused has filed this Appeal,
through Jail.
Heard
learned Advocate Mr. U.S. Brahmbhatt for the appellant and Mr.
Mukesh Patel, learned APP for the respondent ? State.
Learned
Advocate Mr. Brahmbhatt has contended that the prosecution has not
produced any sufficient evidence to prove its case and only relied
upon the oral evidence of the complainant and other relatives. It is
also contended that there is no direct evidence to connect the
accused with the guilt. The prosecution has also failed to establish
the age of the prosecutrix and there is not a single iota of
evidence to show that the prosecutrix baby was tempted by the
present appellant ? accused and she was taken by him at the field.
There is also no direct evidence to show that the accused has
committed any sexual intercourse with the prosecutrix. Mr.
Brahmbhatt has further contended that the trial Court has not
applied its mind and without considering the facts and circumstances
of the case, convicted and awarded sentenced to the present
appellant ? accused, which is erroneous and against the provisions
of law. Mr. Brahmbhatt has also read the deposition of the witnesses
as well as the documentary evidence and contended that on account of
some doubt, no person can be booked in such a serious offence. He
has also contended that due to false involvement of the accused in
the offence he has tried to commit suicide for which an offence was
registered and the accused was tried, but, he was acquitted. He has
also prayed that sentence of imprisonment of life is also very harsh
and, according to him, if the appellant – accused is held guilty the
punishment awarded to him is required to be reduced.
On
behalf of the State Mr. Mukesh Patel, learned APP has submitted that
there is voluminous reliable, trustworthy and clinching evidence on
record which unequivocally and unerringly proves that the appellant
? accused had committed a rape on the minor prosecutrix. He
further contended that from the evidence of the complainant and
other witnesses as well as from the documentary evidence, the
prosecution has proved that the appellant ? accused has committed
rape on a minor girl, aged about 4 years and the mother of the
prosecutrix has boldly filed complaint against the accused without
any fear. He has also contended that no mother would dare to file
false complaint for such a serious offence of rape involving her own
daughter and that for a minor girl. He has also contended that from
the documentary and medical evidence, produced before the trial
Court, the age of the prosecutrix is also established. The medical
Certificate shows that the hymen of the prosecutrix was ruptured and
the injuries were also found on the private part as well as on the
cheeks of the prosecutrix. The medical certificate in respect of the
victim shows that there was profuse bleeding from the vagina of the
prosecutrix. He has also contended that appellant ? accused was
also sent for medical examination and from the medical examination,
it was also found that the appellant ? accused was also having
injury on the private part. He has also contended that after
committing such a serious offence the appellant ? accused has
tried to commit suicide and due to that he has sustained fracture.
He has contended that the conduct of the present appellant ?
accused is also required to be considered and further contended that
in light of the ratio pronounced in land mark Judgment of the
Hon’ble Apex Court as well as the Judgments of this Court, the
prosecution has established its case beyond reasonable doubt and
prayed that the Judgment and order passed by the trial Court is
required to be confirmed.
The
Hon’ble Apex Court in a number of decisions held that ?SIt is not
the duty of the appellate Court when it agrees with the view of
Trial Court on the evidence either to restate the effect of the
evidence or to reiterate the reasons given by the Trial Court.??
The said law is laid down by the Hon’ble Court in the case of (1)
GIRIJANANDINI DEVI & ORS. V/s. BIJENDRA NARAIN CHOUDHARY,
reported in AIR 1967 SC 1124, and (2) in the case of STATE
OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981
SC 1417. Yet, in the interest of justice and to observe said
cause of Appeal in a legal way, we have discussed the evidence as
well as the reasons assigned by the trial Court.
Complainant
Maniben Punjabhai, PW 4, Exh.11 narrated in her oral evidence that
the date of birth and name of prosecutrix was entered into Birth
Register, Ex.13, and according to the same the date of birth of the
prosectrix was 15.2.1990 and as per date of birth of the
prosecutrix, on the date of incident, she was 4 years old. The trial
Court has explained the age of the prosecutrix with sound and proper
reason and considered in a legal and proper manner. Therefore, the
question of the age of the prosecutrix cannot be debatable at this
juncture. The complainant in her deposition stated that she saw her
daughter ? prosecutrix in a bleeding condition. The complainant
has asked the prosecutrix as to what happened, the prosecutrix has
explained before her that the said act was done by the present
appellant ? complainant. The said version of the complainant was
also supported by PW 1 ? Madhuben Lallubhai, Ex.5. So, compared to
the oral evidence of PW 1 and the complainant PW 4, the same was
fully corroborated the version of FIR (complaint Ex.12).
Panch
witness Dixitkumar Pravinchandra, PW 2, Ex.6, was a Panch of scene
of occurrence, has deposed in his examination that they have found
foot marks of adult person as well as child. The said fact is also
corroborated by the panchnama of scene of offence Ex.7. The
complainant, P.W.1 Madhuben and the Panch witness P.W.2 were fully
cross examined by the defence lawyer before the trial Court. From
the evidence of these witnesses it appears that the present
appellant ? accused could not get out from the alleged illegal act
of the accused and the accused has failed to establish his
innocence. P.W.3 ? Panch Kamlesh Jivanbhai Patel was also examined
at Ex.8 in whose presence the Investigating Agency has seized the
clothes of the prosecutrix and the appellant ? accused after
drawing the Panchnama Ex.9 and the clothes were sent to Forensic
Science Laboratory for examination and Report. The said witness has
also supported the version of the prosecution.
The
prosecution has examined Dr. Rajesh N. Desai, PW 7, Exh.18, who has
examined the prosecutrix. He has explained the injuries on the
prosecutrix. He has deposed that hymen was ruptured in a 2nd
degree position of 2 cm deep and on both the cheeks of the
prosecutrix brushes marks were found and there was bleeding from the
private part of the prosecutrix. The case history was also noted by
this witness (Medical Officer) from the complainant Maniben. The
Medical Officer has deposed that hymen was ruptured and stitches
were taken. The prosecutrix was made unconscious after giving
anesthesia. As an medical expert he has clarified that presence of
semen may not be available when there is continuous bleeding from
the private part of the body. As per his opinion the age of the
prosecutrix was about 4 to 5 years. Dr. Upen N. Mehta, Medical
Officer, PW 8, was also examined at Exh.20. He is a Gynecologist. He
has examined prosecutrix Parul as well as the appellant ? accused.
He has also deposed that abrasions on both the cheeks of the
prosecutrix were found. Hymen was ruptured and bleeding was
continued. He has also examined the appellant ? accused. The
accused sustained fracture injury on left hand. The appellant ?
accused was also having abrasion on the private part of his body. He
has taken a sample of blood, semen and pubic hair of the accused and
sent for examination. In cross examination this witness has fairly
admitted that he has a definite opinion that rape was committed on
the prosecutrix. He has also issued Medical Certificate to that
effect.
P.W.
5 Manjulaben Naginbhai Vasava, Ex.14, has fully supported the
version of complainant as well as the version of PW 1 Madhuben
Lallubhai. She deposed that there was profuse bleeding from the
vagina of the prosecutrix and the clothes of Parul ? prosecutrix
were stained with blood. On being asked she said that she was taken
by the accused to the field. The blood stains were there on private
part. She, along with the complainant and P.W. 1 Madhuben went to
the field where the appellant ? accused was sleeping. Thereafter
the accused was taken away by them to the Police Station. While
taking him to police station the accused jumped into the well, which
shows the guilty mind of the appellant ? accused. The said conduct
of the accused is required to be considered.
The
Hon’ble Supreme Court in the case of A.N.Venkatesh & ANR v/s.
STATE OF KARNATAKA, reported in 2005 (3) CRIME 231 (SC)
has held that by virtue of Section 8 of Evidence Act, the conduct of
the accused person is relevant. The Hon’ble Apex Court has held that
?Sby virtue of Section 8 of the Evidence Act, the conduct of the
accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact.?? The evidence of
circumstances simplicitor that the present accused pointed out
before all witnesses as well as at the time of filing of FIR before
Police is that while taking him to police station,he jumped into the
well to avoid legal action and due that fear he jumped into the
well. The said conduct of the accused is relevant in eye of law in
the context of Section 8 of Evidence Act.
P.W.
9 ? Ramjibhai Garbabhai Parmar, Investigating Officer, Ex.24, has
carried out the investigation in a proper and legal manner. We have
scrutinized the entire evidence, oral as well as documentary. From
the deposition of this witness, the defence ? present appellant
has failed to establish that there was any negligence on the part of
Investigating Officer in carrying out the investigation. In our
opinion, the Investigating Officer has carried out the investigation
in a fair and legal manner.
This
is a complaint of rape on a 4 year old female baby child. In our
orthodox society unless complaint is genuine no parents would dare
to lodge false complaint of rape involving his/her own daughter in
such a heinous incident, knowing fully well that the same would
damage the honour of the family in the society.
This
Court has considered the submissions advanced by the learned
Advocates appearing for the parties and perused the impugned
Judgment and order. This Court has undertaken a complete and
comprehensive appreciation of all vital features of the case and the
entire evidence on record which is read and re-read by the learned
advocates for the parties with reference to broad and reasonable
probabilities of the case. In light of caution sounded by the
Supreme Court while dealing with criminal appeals, this Court has
examined the entire evidence on record for itself independently of
the trial Court and considered the arguments advanced on behalf of
the accused and infirmities pressed, scrupulously with a view to
find out as to whether the trial Court has rightly recorded the
order of conviction and sentence.
As
observed and discussed at length, in our opinion, in light of the
documentary evidence i.e. Medical Certificate Exh. 12, it is
established by the prosecution that injuries on a private part of
the body of the prosecutrix as well as on the present appellant ?
accused has proved that the present appellant ? accused has
committed a rape on the prosecutrix. There is no reason for the
complainant to falsely involve the appellant ? accused. The
appellant ? accused could have explained during recording of his
further statement u/s. 313 Cr.P.C. the injuries received by him on
his private part of the body, but, he has not explained anything.
From the oral as well as documentary evidence adduced by the
prosecution, in our opinion, the learned trial Judge has rightly
convicted and sentenced the appellant ? accused. Therefore, the
conviction and sentence awarded by the trial Court against the
appellant ? accused does not call for any interference of this
Court in exercise of appellate powers.
The
learned Advocate, appearing for the appellant ? accused, has
lastly prayed that if this Court is of the opinion that the trial
Court has rightly convicted and sentenced the accused then the
leniency may be shown and prayed to reduce the quantum of sentence.
We have gone through the Judgment and order of the trial Court. We
have also perused the record. In our opinion, the accused has
committed a rape on a female child hardly of the age of 4 years. No
leniency should be shown towards an offender like the present
accused who has committed a rape on a girl ? a baby child who is
hardly 4 years old.
We
find ourselves in complete agreement with the said finding, ultimate
conclusion and resultant order of conviction passed by the trial
Court and we are of the view that no other conclusion except the one
reached by the trial Court is possible in the instant case as the
evidence on record stands. Therefore, there is no valid reason or
justifiable ground to interfere with the impugned Judgment and order
of conviction and sentence.
For
the forgoing reasons the Appeal fails and is hereby dismissed. The
Judgment and Order of conviction and sentence dated 21.12.1995
recorded by the trial Court against the appellant ? accused in
Sessions Case No.257 of 1994 is hereby confirmed and maintained.
Muddamal be disposed of in terms of directions contained in the
impugned Judgment and order passed by the trial Court.
This
Appeal is accordingly dismissed.
Sd/-
(A.M.KAPADIA,J.)
sd/-
(Z.K.
SAIYED, J.)
sas
Top