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CR.A/2076/2004 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2076 of 2004
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 ?
=========================================================
GALUBHAI
BABUBHAI HALPATI - Appellant
Versus
THE
STATE OF GUJARAT - Respondent
=========================================================
Appearance
:
MR
PK SHUKLA for Appellant.
MR UR BHATT, ADDL.PUBLIC PROSECUTOR for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 24/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant, in this appeal, came to be convicted by the Sessions
Court, Navsari, for the offences punishable under Sections 376 &
323 of the Indian Penal Code, by judgment rendered in Sessions Case
No.37/2004 on 28th October, 2004. The appellant was
sentenced to undergo R.I for a period of ten years and to pay a fine
of Rs. 200/-, in default, to undergo S.I for one month for the
offence punishable under Section 376 IPC. He was ordered to undergo
S.I for six months and to pay a fine of Rs. 200/-, in default, S.I
for one month, for the offence punishable under Section 323 IPC. Both
the sentences were ordered to run concurrently.
2. The
case of the prosecution, in short, is that the appellant is the
foster-father of the victim, who is congenitally deaf and dumb.
According to the prosecution, her mother, the complainant, came to
reside with the appellant along with the victim, after the death of
her husband Rameshbhai. It is the case of the prosecution that the
appellant committed rape on the victim on various occasions, as a
result of which, she became pregnant. Deviben, mother of the victim,
therefore, lodged F.I.R., with the Navsari (Rural) Police Station on
25.5.2004 to the above effect, on the basis of which, offence was
registered at C.R.No.I.91/2004 and investigated. Upon investigation,
police having found sufficient evidence, filed charge sheet against
the appellant in the Court of learned J.M.F.C.,Navsari, who, in turn,
committed the case to the Court of Sessions and Sessions Case
No.37/2004 came to be registered.
3. The
charge against the appellant was framed at Exh.2 for the offences
punishable under Sections 376, 323 & 506(2) of the Indian Penal
Code, to which the appellant-accused pleaded not guilty and claimed
to be tried.
3.1 After
considering the evidence led by the prosecution, the trial Court came
to the conclusion that the prosecution was successful in establishing
the charges for the offences punishable under Sections 376 & 323
IPC and recorded conviction and sentence, as stated hereinabove. It
is against this judgment and order that this appeal is preferred by
the convict.
4. After
the appeal was admitted, the State of Gujarat preferred Criminal
Misc.Application No.9120/2005 before this Court, during the pendency
of this appeal, under Section 391 of the Code of Criminal Procedure,
praying for a permission to lead additional evidence of the victim
girl and direct the Sessions Court, Navsari to record her evidence
with the help of an interpreter and certify such evidence to this
Court so as to enable this Court to proceed to dispose of the appeal
filed by the appellant. This Court, by order dated 10.8.2005, allowed
the application and permitted the State to lead the additional
evidence of the victim girl. The learned Sessions Judge, Navsari was
directed to record the evidence of the victim girl with the help of
an interpreter as early as possible, preferably, within two months
from the date of receipt of the writ of the Court, and after
recording the evidence, certify the same to this Court as required
under Section 391(2) of the Code of Criminal Procedure so as to
enable this Court to proceed with the hearing of the appeal.
5. Accordingly,
the Sessions Court appointed one Radhaben Bharatbhai Nayak, who is a
teacher in the Deaf & Dumb School of village Kachholi, as an
interpreter and recorded the evidence of the prosecutrix at Exh.52
and certified the same to this Court.
6. We
have heard learned advocate Mr.Shukla for the appellant, and learned
A.P.P. Mr.Bhatt for the respondent-State. We have also examined the
record and proceedings in the context of submissions made to us.
7. The
learned advocate for the appellant submitted that the prosecution
case is founded on a belated F.I.R. The F.I.R. is lodged after a
period of about 8 months. The medical evidence is Nil for
establishing commission of either of the offences. The trial Court
has not appreciated these aspects. It is also submitted by the
learned advocate for the appellant that the prosecutrix was not
staying with the appellant alone, but, used to go to the house of
P.W.2 and stay there also and, therefore, the conviction is recorded
without taking into consideration this aspect. The appeal may,
therefore, be allowed.
8. On
the other hand, the learned A.P.P. has opposed this appeal. According
to him, the appellant took undue advantage of his fiduciary position
as the foster-father as against the prosecutrix. The prosecutrix is a
young girl, both deaf and dumb, who has lost her father and could not
have mustered enough courage to expose her foster-father and,
therefore, the incident was detected only upon the prosecutrix
becoming pregnant.
8.1 The
learned A.P.P. submitted that the FIR is given by the mother of the
prosecutrix, who is none-else, but, the wife of the appellant. Even
the deposition of the prosecutrix, if read in its entirety,
implicates the appellant. Therefore, at this stage, there is
additional material in the form of deposition of the prosecutrix to
show the involvement of the appellant in the offence. The Court,
therefore, may not interfere with the conviction recorded by the
Trial Court and the appeal may be dismissed.
9. We
are faced with a very peculiar case, where a deaf and dumb girl is
sexually exploited by her foster-father. The mother of the
prosecutrix, i.e., complainant, says that on noticing the girl to be
pregnant, she inquired from her as to who was responsible for her
pregnancy, who, by finger sign, pointed at the appellant. She then
asked the appellant about the same and he, in turn, told the truth.
He said that let the girl deliver the child and he would rear the
child. Thereafter, the appellant started beating them and intimidated
them asking them not to disclose to anyone-else. The witness has
been cross-examined at length, but, nothing material emerges
therefrom.
9.1 P.W.2
is Ukabhai Ravjibhai Halpati, who is examined at Exh.8. He happens to
be the brother-in-law of Deviben, the first informant. He is a
postman. He says that there was a quarrel between the first informant
and the appellant on 24th. The first informant told him
that the dispute was because of the pregnancy of the victim. He says
that later on the prosecutrix delivered a male child, who expired on
the next day.
9.2 Pushpaben
Harishbhai Balsara (Exh.9) is a neighbour. She says that Deviben had
told her that the victim is pregnant and she had advised her to go to
a good doctor.
9.3 Rameshbhai
Babarbhai (Exh.10) says that he knows the appellant and the appellant
had come to him for borrowing Rs.500/- saying that the victim is
pregnant.
10. The
deposition of the prosecutrix, recorded at Exh.52, is the most
important piece of evidence, which clearly implicates the appellant.
She has given replies in sign language. She implicates the appellant
by gestures of establishing physical relationship with her during
night, as a result of which, she became pregnant and delivered a
child. She has been cross-examined, but, nothing special emerges.
11. In
our view, the evidence proves that upon the prosecutrix becoming
pregnant, there was a quarrel between the appellant and his wife,
first informant Deviben, and pursuant thereto, he assaulted her also.
11.1 There
is evidence that the appellant took undue advantage of his fiduciary
position and established physical relationship with the prosecutrix,
who was about 16 years of age, as a result of which, she became
pregnant. The prosecutrix is a congenitally deaf and dumb girl. She
had lost her father and was staying with the appellant, her
foster-father. Obviously, she could not have mustered enough courage
to expose the exploitation by the appellant. But, when she herself
is exposed by pregnancy and is asked as to who was responsible for
the pregnancy, she had to disclose the fact. The evidence led by the
prosecution, particularly the evidence of prosecutrix, is consistent
and has ring of truth in it.
12. In
the light of the above discussion, we have no reason to disbelieve
the evidence of the victim herself. The delay in lodging the
complaint deserves to be condoned. Considering the mental position of
the prosecutrix, the delay is justified. She has no reason to falsely
implicate the appellant. The complainant also has no reason to
falsely implicate the appellant, her husband. Therefore, in our
opinion, the conviction recorded by the trial Court does not call for
any interference. The appeal must fail. Stands dismissed.
[
A.L. Dave,J.]
[
J.C.Upadhyaya,J.]
(patel)
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