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CR.A/293/2003 2/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 293 of 2003
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 ?
=========================================================
JIVANBHAI
VITHALBHAI CHAVDA - Appellant
Versus
STATE
OF GUJARAT - Respondent
=========================================================
Appearance
:
MR
YOGESH S LAKHANI WITH MR GONDALIA, for
Appellant.
MR MUKESH A PATEL, APP, for
respondent,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 19/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant came to be convicted for the offence punishable under
Section 376 of the Indian Penal code by the learned Additional
Sessions Judge, Fast Track Court, Rajkot by judgment and order dated
29th January, 2003 in Sessions Case No.115/1999. The
appellant is sentenced to undergo R.I. for a period of ten years and
to pay a fine of Rs. 10,000/-, in default, to undergo R.I. for one
year.
2. The
prosecution case, in brief, can be stated thus :
2.1 The
first informant Ramaben Dhirajbhai and her husband Dhirajbhai
Shamjibhai Chavda were engaged in embroidery work while staying at
Rajkot. Since the business was not going on well, they thought of
consulting the appellant-accused, who was also working as a priest,
besides serving in Postal Department and staying at Jetpur. P.W.2 ?
Dhirajbhai Shamjibhai, therefore, contacted Shamjibhai Karshanbhai
to get in touch with the appellant, who, in turn, introduced
Dhirajbhai to the appellant. After listening to the facts of
Dhirajbhai, it is the case of the prosecution that the appellant said
that some rituals have to be performed at the residence of
Dhirajbhai. For that purpose, the appellant, along with Shamjibhai
Karshanbhai, went to the house of Dhirajbhai located at Ashapura
Nagar, Street No.10/1, Rajkot. After some time, it is the case of
the prosecution that, Shamjibhai Karshanbhai left and the appellant
remained at the house of Dhirajbhai, as rituals were to be performed
at night. At about 10.30 p.m. on 24th May, 1998, it is the
case of the prosecution that the appellant took bath. He had insisted
that the rituals were to be performed with the help of the
prosecutrix – first informant Ramaben, wife of Dhirajbhai Shamjibhai.
She, therefore, also took bath and both of them went to the
pooja-room in the house of Dhirajbhai Shamjibhai. It is the case of
the prosecution that the appellant insisted on performing rituals in
that room by remaining alone with the prosecutrix. He, therefore,
locked the door of the pooja-room from inside. The rituals were over
by 1.30 a.m. on 25th May, 1998.
2.2 It
is the case of the prosecution that while the appellant and the
prosecutrix were alone in the room, the appellant started chanting
`Mantras’ and then he made the prosecutrix to drink milk
thrice, to which some ash was added. The milk was administered in
stainless-steel bowl. It is the case of the prosecutrix that on
consuming the milk, she lost orientation and became almost
unconscious. She could only see the accused-appellant. It is her case
that the accused thereafter got rid of the towel, which was the only
cloth wrapped around him and then he removed her clothes as well and
had intercourse with her against her will. According to the
prosecutrix, she could not resist or speak because of the effect of
the drug administered to her in the milk. She gives the version in
the FIR that she was raped twice. She says that she regained her
consciousness on the next day and on regaining consciousness, she
informed her husband about what was done to her by the
accused-appellant.
2.3 As
per the prosecution case, on being informed by the prosecutrix about
the incident, her husband Dhirajbhai Shamjibhai talked to his brother
and then both of them went to Shamjibhai Karshanbhai. There they were
insulted by Shamjibhai Karshanbhai and, therefore, they went to a
Lawyer and got prepared an application addressed to the Commissioner
of Police. The said application was tendered to the Commissioner of
Police, but, they were directed to go somewhere-else, where they went
and F.I.R. came to be registered against the present appellant and
Shamjibhai Karshanbhai. On the basis of that F.I.R., investigation
was made and the investigating agency, having found sufficient
material against the accused, filed charge sheet against the
appellant-accused in the Court of J.M.F.C., Rajkot. The case was
committed to the Court of Sessions, as the charges levelled against
the accused were triable exclusively by the Court of Sessions and
Sessions Case No. 115/1999 came to be registered.
3. Charge
was framed against the accused-appellant at Exh. 5. The accused
pleaded not guilty to the charge and claimed to be tried.
3.1 The
Sessions Court, after considering the evidence led by the
prosecution, explained the circumstances/evidence against the accused
and recorded his statement, below Exh.5-Charge, under Section 313 of
the Code of Criminal Procedure, wherein the accused stated that he
has been falsely implicated and the allegation is by way of a
counter-blast.
4. The
Sessions Court, after considering the evidence led by the
prosecution, came to the conclusion that the prosecution was
successful in establishing the charge of rape and, therefore,
recorded conviction and awarded sentence, as stated above. Aggrieved
by the said judgment and order, the present appeal is preferred.
5. We
have heard learned Senior Advocate Mr. Yogesh S. Lakhani, appearing
with learned advocate Mr.Gondalia, for the appellant, and Mr.Mukesh
A.Patel, learned Additional Public Prosecutor for the State. We have
also examined the record and proceedings.
6. Learned
Senior Advocate Mr.Lakhani submitted that if the evidence of the
prosecution is seen, it is a case of sheer concoction and
imagination. He submitted that the deposition of the prosecutrix and
her F.I.R. go contrary to each other and create a doubt about the
whole of the prosecution case. It creates doubt about the events and
sequence of events. Mr.Lakhani submitted further that the F.I.R. was
given late by three days. It was given after consulting a legal
expert and getting it typed. Mr. Lakhani further submitted that if
the language employed in the F.I.R. and its tenor are seen, it is
clear that it could not have been given by the prosecutrix as it
purports to have been done. He submitted that the thumb impression,
which is affixed below the F.I.R., is not identified by any one. Over
and above this fact, some writing is scored out just beneath the
thumb impression, which creates doubt about its authenticity. Mr.
Lakhani submitted that the F.I.R. was lodged after the complaint was
lodged by Shamjibhai Karshanbhai Chavda against the husband of the
prosecutrix and his brother and this aspect is not disclosed in the
F.I.R. lodged in the present case.
6.1 Mr.
Lakhani submitted further that as per the overall evidence of the
prosecutrix herself, the bowl, in which she was made to consume milk,
allegedly containing diazepam, was washed after the incident and was
made use of before it was seized. This aspect is revealed in the
panchnama as well. Mr. Lakhani submitted that in spite of this,
F.S.L. report finds presence of diazepam in the bowl and this aspect
is not explained. Mr. Lakhani submitted that even the panchnama of
seizure indicates that nothing was visibly found in the bowl.
6.2 Mr.
Lakhani submitted that there is no evidence whatsoever on the
question of effect of diazepam, on the quantity required for creating
effect alleged by the prosecutrix, time required therefor, test of
diazepam etc.
6.3 It
is also contended that there is no medical evidence to support the
case of rape.
7. On
the other hand, learned A.P.P. Mr. Patel has opposed this appeal.
According to him, there is ample evidence to show that the appellant
misused his position as a Priest and committed rape on the
prosecutrix under the guise of performing rituals. He submitted that
when the prosecutrix herself deposes about the occurrence, there is
no need to look for corroboration to her evidence. Mr. Patel
submitted that the nature of crime is heinous and will have a direct
impact on the standard of morality in the society. The trial Court
has recorded conviction on the basis of legally acceptable evidence
and the same, therefore, may be confirmed. Mr. Patel submitted that
there is no reason to discard the evidence of F.S.L. Mr. Patel
submitted that even in his statement under Section 313 of Cr.P.C.,
the appellant admits to have administered milk, may be as a
`prasadi’, but, the fact remains that he did administer milk.
8. We
have considered rival side submissions. We find that the incident
occurred on 24.5.1998 allegedly after 22.30 hours and before 1.30
hours on 25.5.1998 in the house of the prosecutrix in the pooja-room.
According to the prosecutrix, she became almost unconscious upon
consuming milk, which was given to her thrice by the appellant. In
the F.I.R. she says that after this situation arose, the appellant
raped her twice after removing his and her clothes in totality. She
has stated in the F.I.R. that she regained consciousness in the next
day morning at about 11.00 a.m. and then she informed her husband
about the occurrence. Her husband then talked to his brother and both
of them went to Shamjibhai Karshanbhai `to ascertain the truth in the
say of the victim’, where they were ill-treated and abused. They,
therefore, then went to the house of the accused-appellant and upon
inquiring about the appellant from the wife of the appellant, the
wife asked them not to lodge complaint for the sake of their children
and that the appellant is in the habit of committing such acts. By
that time, the appellant arrived at the home and the husband of the
prosecutrix asked him as to why did the appellant behave in this
manner with the prosecutrix. He was told by the appellant that this
was a command of Goddess and then said that he has performed such
acts at many places and they can do their worst. They, therefore,
went back to Rajkot, talked to relatives and were advised to lodge
complaint to protect the female folk of the community from such
future acts.
9. In
comparison of the F.I.R., if the deposition of the prosecutrix
recorded at Exh.22 is seen, she says that since her husband’s
business was not going on well, her husband got in touch with the
appellant through Shamjibhai Karshanbhai, and the appellant said that
he would perform rituals at his house and accordingly, on the date of
the incident, the appellant came to the house of the prosecutrix
along with Shamjibhai Karshanbhai, who left after sometime. The
appellant indicated that the rituals are to be performed at night.
He, therefore, took bath at 10.00 p.m. and as advised by him, the
prosecutrix also took bath and then, both of them went to the
pooja-room. The appellant had only a towel wrapped around his person.
The prosecutrix was wearing usual dress of sari, blouse and
petticoat. The appellant insisted that only they both should be in
the pooja-room and nobody should enter the pooja-room. They entered
the pooja-room and then locked it from inside, whereupon the
prosecutrix stated that she had never stayed alone with any other
male, whereupon the appellant stated her that there is nothing to
worry about it. The appellant called for milk from her. He mixed some
material like ash in the milk and started chanting `mantras’.
He made the prosecutrix to consume the milk in small quantity thrice.
On consumption of the milk, according to the prosecutrix, she became
nonplussed and she could not see anything, except the appellant. She
says that thereafter the appellant got rid of the towel wrapped
around his person and became nude totally. Thereafter, he pushed her
to the floor and committed rape. She says that it was a forced
complete intercourse. Thereafter, he opened the door and went away.
She says that thereafter she and her family had a sleep during the
night, but, she had no capacity to speak. On the next day i.e.
25.5.1998 at about 11.00 a.m., she told her husband about the
incident. Therefore, her husband and his brother went to the house of
the appellant. They came back from Jetpur and told her that according
to the appellant, he acted as per the orders of the Goddess. Her
husband told her that the appellant’s wife told him that the
appellant is in the habit of doing so and, therefore, they should not
take any action for the sake of their children and if at all he
wants, he himself can have intercourse with her. According to the
prosecutrix, they thereafter went to a Lawyer, got the complaint
prepared and typed. She affixed her thumb impression on it and went
to the Office of the Police Commissioner, from-where they were
directed to go to some other Office, where they went and lodged
complaint against the present appellant and Shamjibhai Karshanbhai.
9.1 What
emerges from her cross-examination is that she admits that the
rituals were over at about 1.30 a.m. Of 25.5.1998 and she went out of
the pooja-room and prepared tea, which was taken by the appellant and
her mother-in-law. She also admits that she had cleaned the bowl as
well as towel, which was wrapped by the accused against his person.
10. If
the panchnama of recovery of the bowl (Exh.24) is seen, it emerges
that the prosecutrix had stated before the panch- witnesses that the
said bowl was cleaned by her after the incident and was being used
thereafter for the household requirements. It also emerges that the
clothes worn by the prosecutrix at the time of the incident were also
washed by the prosecutrix before they were seized under the said
panchnama drawn on 30.5.1998 between 17.30 and 18.15 hours. In this
context, it is recorded in the said panchnama that there were no
visible signs of any intoxicant or other type of substance in the
bowl.
10.1 In
the above context, if the F.S.L. Report (Exh.21) is seen, it says
that the bowl was tested and diazepam could be detected in the
contents (washing of steel bowl) of the said exhibit mark `C’, i. e.
the steel bowl allegedly used in the incident.
11. We
are unable to reconcile ourselves as to how the FSL report could have
detected the presence of diazepam in the washed bowl when the bowl
was admittedly cleaned after the incident and was being used in the
household purposes even thereafter till it was seized after 5 days of
the incident. It is nobody’s case that anybody had any effect of
diazepam after the incident when the bowl was used for the household
purpose. The panchnama also says that no substance was found in the
bowl and, therefore, we say that we are unable to reconcile with the
situation. The prosecution has not come up with any explanation in
this regard.
12. Apart
from this, the FSL report at Exh.31 does not speak of the presence of
any blood or semen on the clothes of the prosecutrix.
13. Now,
going to the main incident, it is the case of the prosecutrix that on
consuming the milk given to her by the appellant, in which the
appellant had mixed up some ash like powder, she became almost
unconscious and could see only the appellant.
13.1 In
this regard, it is sought to be conveyed by the evidence of FSL that
the appellant had mixed up diazepam in the milk to have that
intoxicating or intoxicating type of effect on the prosecutrix, of
which the appellant took disadvantage and committed rape on her. But,
we do not find any evidence to know the effect of diazepam, the
quantity which would be required to be administered for obtaining a
particular effect of the drug, the time that would be taken for the
prosecutrix to be influenced by the drug and the time for which the
consumer or the prosecutrix would remain under the influence of the
drug. There is not an iota of evidence in this regard. It is,
therefore, difficult to accept the prosecution case that the
appellant by administering drug on the prosecutrix, made her
semi-conscious and took disadvantage of her semi-consciousness.
14. The
evidence of the prosecutrix and her version in the F.I.R. run
contrary to each other. In her FIR, she says that she was raped
twice, in her deposition she speaks of forcible coitus
only once.
14.1 She
says that she became unconscious or semi-conscious and regained
consciousness only on the next day at about 11.00 a.m., whereafter
she informed her husband about the incident, but, it emerges from her
deposition during the cross-examination that she had come out of the
room along with the appellant, had prepared tea, which was taken by
the appellant as well as her mother-in-law. Therefore, her story that
she became unconscious and regained consciousness only on the next
day at about 11.00 a.m. becomes doubtful.
15. Likewise,
she says that before the rape was committed, the appellant had
removed her clothes. It is nobody’s case that she was either found
lying in the room in that condition when the appellant left the
pooja-room or that the appellant left pooja-room alone, nor is it
anybody’s case that the prosecutrix came out of the pooja-room
without clothes on her person. Therefore, her story that she became
unconscious after consuming milk becomes doubtful.
16. It
is also to be noted that the appellant came to the house of the
prosecutrix only upon an invitation by her husband and her husband
met the appellant through Shamjibhai Karshanbhai. The allegations are
also levelled against Shamjibhai Karshanbhai, but, for whatever
reason, he was not charge sheeted. It is, therefore, not the case of
the prosecution that the appellant, of his own volition, went to the
house of the prosecutrix for performing rituals and took disadvantage
of this situation or that he went to the house of the prosecutrix
with a view to take such disadvantage.
17. We
notice, as is rightly argued by Mr.Lakhani, that the FIR is lodged
belatedly. As per the case of the prosecutrix, she informed her
husband at about 11.00 a.m. on 25.5.1998, whereafter her husband
talked to his brother Ashokbhai, and both of them then, strangely
went to ascertain the truth in the matter and on being ill-treated by
the appellant, came back to Rajkot, consulted the advocate, got the
complaint drafted and went to the Police Station for lodging the FIR.
But, in fact, if we see, the FIR is lodged on 27.5.1998. Therefore,
either the story, which is given by the prosecutrix is not correct or
that the prosecutrix has remained silent or inactive for three days
i.e. from 24.5.1998 to 27.5.1998. Either way, the delay would
certainly raise doubt, particularly when there are so many defects
found in the prosecution case, as discussed above.
18. We
also notice that the FIR exh.23, if read, would go to indicate that
it was upon dictation or instructions of a male, as can be seen from
the language employed in the FIR and its tenor. It was drafted by an
advocate. It was drafted after an FIR was lodged against the husband
of the prosecutrix by Shamjibhai Karshanbhai, and significantly the
FIR is silent about that incident. Last but not the least, the FIR
purports to contain thumb mark of the prosecutrix, which is not
identified by any one and it is put on some writing, which is scored
out. These factors render the FIR itself doubtful.
19. The
medical evidence, so far as rape is concerned, is absolutely `nil’.
The FSL report indicates that there was presence of sperms in the
vaginal swab. However, there is no evidence to show that these sperms
were of the group of the appellant and as is rightly observed by the
trial Court, the prosecutrix being married, it could be because of
her relationship with her husband. But, the presence of sperms in
vaginal swab of the prosecutrix will not advance the case of the
prosecution any further towards the appellant.
20. In
our view, therefore, the prosecution case is not founded on a firm
footing. The FIR is doubtful, the deposition of the prosecutrix is
doubtful, the FSL report becomes doubtful, the conduct of the
prosecutrix and her husband, soon after the incident, is doubtful,
the FIR is belated, there is lack of evidence to know the effect of
diazepam, there is no explanation coming on the question as to how
the bowl could have contained diazepam when it was cleaned and used
for about five days. So, in sum and substance, the very substratum of
the prosecution case loses its credibility. Therefore, the trial
Court, in our view, erred in recording conviction.
21. For
the foregoing reasons, we allow this appeal by setting aside the
judgment and order of conviction and acquitting the appellant of the
charge levelled against him. Fine, if any, paid to be refunded to the
appellant. The appellant be released from jail forthwith, if not
required in any other case.
[
A.L. Dave,J.]
[
J.C.Upadhyaya,J.]
(patel)
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