Gujarat High Court
James Johna Christion vs State Of ... on 19 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/258/1997 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 258 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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 or any order
made thereunder ?
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JAMES JOHNA CHRISTION....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR. D. P. KINARIWALA, ADVOCATE for the Appellant(s) No. 1
MR. R.D.KINARIWALA, ADVOCATE for the Appellant(s) No. 1
MS MONALI BHAT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date :19/03/2015
JUDGMENT
1. The present appeal has been filed by the appellant- accused against the judgment and order dated 20.01.1997 passed by learned Additional Sessions Judge, Vadodara in Page 1 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT Sessions Case No.56 of 1995, whereby the appellant-accused was convicted for the offence punishable under Section 376 of the Indian Penal Code (for short "IPC"). The appellant-accused was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.200/- fine for the offence punishable under Section 376 of IPC and in default of payment of fine, rigorous imprisonment for a period of one year was imposed.
2. The case of the prosecution in short is that:-
2.1 The complainant-prosecutrix was residing with her parents at Navi Ashapuri, Chhani Road, Vadodara and was studying in 8th Standard and is having four sisters and one brother. It is the further case of the prosecution that on 17.11.1994, at about 2:30 p.m., the prosecutrix went to take milk. Thereafter, while returning back with milk towards her home, the accused caught her hand and took her near the factory, where rape was committed on the prosecutrix by the accused. Thereafter, a complaint was lodged by the prosecutrix being I-C.R.No.229/1994 with Fatehganj Police Station, Vadodara for the offence punishable under Section 376 of IPC.
3. Thereafter, investigation was carried out and the Page 2 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT chargesheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 4 In order to bring home the charges against the accused, prosecution has examined several witnesses. The prosecution has also led several documentary evidences to support its case.
5. Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him.
6. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge, vide impugned judgment and order, convicted the appellant- accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 20.01.1997 passed by learned Additional Sessions Judge, Vadodara in Sessions Case No.56 of 1995, the appellant-accused has preferred the present appeal before this Court.
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7. Learned advocate for the appellant-accused submitted that had the learned Trial Judge gone through decisions of the Apex Court, he would not have convicted the accused. He further submitted that the story of the prosecution was that the prosecutrix was allegedly dragged in broad day light through a crowded street and was taken to some secluded place and was subjected to rape. Therefore, such things do not happen in the ordinary course of nature. He further submitted that the prosecutrix raised a hue and cry and one person came and knocked at the gate and there after the victim was allowed to go. He further submitted that had the passers-by noticed the hue and cry, they would have naturally raised an alarm and apprehended the accused. He further submitted that the alleged victim's father owed some money to the accused and therefore, in order to escape the debt, the name of the accused was falsely implicated. He further submitted that only one independent witness was examined and he was declared hostile and all other witnesses are close relatives. He further submitted that the medical evidence is also defective. It is submitted that it is an admitted position that at the time of incident, prosecutrix had not known her exact age and therefore, her statement cannot be relied. It is also submitted Page 4 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT that the Court below has seriously erred in not weighing the evidence on record and has failed to appreciate the admitted facts which were in favour of the appellant-accused. It is further submitted that this was not a case of rape. In support of his case, he relied upon MD. ALI @ GUDDU VS. STATE OF U.P., rendered in Criminal Appeal No. 2238 of 2010 and allied matters, dated: 10.03.2015. While taking into consideration the ratio laid down in the said judgment, the appeal deserves to be allowed and the judgment and order of the Lower Court may be reversed and quashed and set aside.
8. Per contra, learned APP for the respondent-State has taken this Court through the evidence and has submitted that the judgment of the learned Trial Judge is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. She further submitted that the age of the prosecutrix was below 16 years. She further submitted that since the prosecutrix was minor. She has submitted that the judgments cited by learned counsel for the appellant-accused would not apply to the facts of this case as the age of the prosecutrix was below 16 years. She also submitted that there is no infirmity in the impugned order. She submitted that the Lower Court has rightly appreciated the Page 5 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT evidence on record and convicted the accused of the charges levelled against him. She further submitted that considering the nature of the offence, no leniency may be shown to the accused. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed.
9. I have heard learned advocate for the appellant-accused and learned APP for the State and perused the material on record.
10. Before considering the case on merits, it would be profitable to refer to the provision of Section 376 of IPC, which is as under :-
"376. Punishment for rape: -(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (1) Whoever:
-(a) Being a police officer commits rape
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate Page 6 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT to him; or
(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a womans or childrens institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) Commits rape on a woman knowing her to be pregnant; or
(f) Commits rape when she is under twelve years of age; or
(g) Commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
11. Having considered the evidence on record, factual scenario does not transpire much of confidence to this Court that in fact, Section 376 of IPC was, in fact, committed or not ? The medical evidence of PW:2-Dr.Chandraprakash A. at Exh:14 shows that the prosecutrix was brought for her physical examination at 11:40 hours in night with a yadi of Fateganj Police Station and her age was about 14 years. After getting her consent, the doctor conducted her physical examination. The prosecutrix was sent to gynecology department for further examination. On the basis of the report received from gynecology department, doctor issued a certificate. The following facts were found during her physical examination:
1. Prosecutrix was conscious and co-operative. Her physique was normal and healthy.Page 7 of 14
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2. Secondary sexual characters are under development.
3. Clothes worn by her were clean and washed. No stains were found on them.
4. Her health was found normal during general examination.
5. No marks of external injuries were found on any part of the body.
6. Nails of hands were trimmed and clean.
7. No marks of scuffle were found.
8. Saliva, pubic hair, vaginal swab and urethral swab were taken and sent to FSL for examination.
Further, the doctor stated in his deposition that upper part of her private part was normal and there were no marks of injuries and vulva and vaginal opening were normal and developed. Forchet (sic) i.e. the hole of internal skin of vagina was showing position of 6 o'clock. No active oozing was seen. Hymen was ruptured in a position of 6 o'clock. No active oozing was found therein. On the basis of aforesaid facts and at the end of my examination, the doctor came to such a conclusion that prosecutrix was a normal woman. The articles seized for examination have been sent to FSL to ascertain as to whether recent intercourse has taken place or not. Further, the doctor stated in his deposition that there were no marks of injury on the person of the prosecutrix, which goes to show that there is a doubt created in the mind of this Court whether, in fact, there was any incident of rape and the medical evidence of PW:3 Kokilaben S. Mekwan becomes doubtful. The oral testimony of this witness goes to show that the incident Page 8 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT occurred in broad day light on highway and there were some workmen working in the factories and there were three factories where watchmen (gurkha) were sitting outside the factory gate. The prosecutrix gave a very highly exaggerated picture. In her second breath, she stated that the accused had not removed his cloths but had removed her cloths only. Further, when she shouted, somebody came and the accused ran away from there. As per the medical evidence, vaginal parts of the victim have not been damaged. In her testimony before the Court, there is an improvement in her complaint which was lodged before the police. The defence of the accused appears to be weighing with this Court. The prosecutrix stated in her statement that the accused was demanding Rs.5,000/- from the father of the prosecutrix and he was not paying the same and therefore, he has raped her. The prosecutrix has filed the affidavit which reads as under:
"I, Mecwan Stelaben Samulbhai D/0. Samilbhai Mecwan aged about 23 years, female, residing at Navi Ashapuri, Behind Roses Garden, Chhani Road, Nava Yard, Vadodara 390002, do hereby takes an oath and state that:-
1. That I am the complainant of CR No.229/1994, lodged before Fatehganj Police Station, Vadodara for the offences punishable under Section 376 of the Indian Penal Code.
2. That after investigation the police has filed a charge sheet against the present appellant and after that since the case was triable by the sessions Court the said case was committed to sessions Court and the same was numbered as Sessions Case No.56/1995.Page 9 of 14
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3. That the learned Sessions Court has tried the appellant and after that vide the judgement and order dated 20.01.1997, the learned Additional Sessions Judge, Vadodara has convicted the appellant under Section 376 of the Indian Penal Code and has imposed punishment of 7 years rigorous imprisonment with a fine of Rs.200/- and the default SI of one month.
4. I say that the appellant has remained in custody from 17.11.21994 till he was released by this Hon'ble Court on bail. I further state that the appellant has married and is having four children. Not only that I have also married and I am having children. I further state that while the appellant was on bail, he has helped my father a lost since he is residing opposite to us in the same society. Under the circumstances, I., the complainant, request this Hon'ble Court to show the leniency to the appellant with an intention to see that his marriage life and the life of the children are not spoiled.
5. I say that I am filing this affidavit with free 2will, without any pressure and influence of the appellant."
12. I am convinced on reading the said affidavit that the accused could not have been convicted on this shaky evidence. Therefore, it cannot be said that the rape was committed by the accused more particularly when the incident had taken place in broad day light and there were number of persons passing through. When there were number of persons on the prosecutrix's side also, it is difficult to believe that the prosecutirx was raped by the accused and the medical evidence belies the statement of the prosecutirx. Therefore, this Court is unable to accept the findings of fact recorded by the learned Trial Judge. Hence, the conviction cannot be sustained. It is a matter of fact which is borne out from the record that the victim is alleged to have been raped, which is Page 10 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT not borne out from the record. There were no marks of injury on the person of the accused.
13. In above view of the matter, here, it would be relevant to refer to a recent unreported decision of the Apex Court in the case of MD. ALI @ GUDDU VS. STATE OF U.P. (supra). In that case the original accused-appellant, therein, was held guilty for the offence punishable under Section 366, 368 and 376 of the IPC along with other three accused. Being aggrieved with the order of the trial Court, the appellant, therein, approached the High Court, which confirmed the order of the trial Court. Hence, the accused-appellant, therein, moved the Apex Court and while allowing the appeal of the accused- appellant, the Apex Court observed as under in Paragraph-21 of the said judgment;
"21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had traveled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, Page 11 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammer of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without reappreciating the material on record, by giving the stamp of approval to the same."
14. Having considered the evidence on record, it is clear that the learned Trial Judge has committed grave error in considering her age, which was not borne out from the record. It appears that learned Trial Judge has convicted the accused on conjectures and surmises and the judgment is not based on evidence, which is borne out from record. Learned counsel for the appellant-accused has taken this Court through the entire evidence and even the operative part of the conviction. As pointed out, in light of the provisions of Section 376 of IPC, the rape was not committed by the accused. The learned Trial Page 12 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT Judge ought not to have convicted the accused just on the say of the complainant-prosecutrix and against the medical evidence. In that light of the matter, the medical evidence does not corroborate nor in the medical certificate, it is shown that there were any serious injuries. There are also contradictions regarding other material aspects, and therefore, in light of the aforesaid judgment, the accused, who has been convicted, cannot be held guilty. Thus, the conviction of appellant-accused cannot be sustained and therefore, the appellant-accused is required to be acquitted. It is made clear that the theories put forward by the prosecutrix and the family members are not believable. The accused has already undergone rigorous imprisonment for two and half years and now he is on bail.
15. Under the circumstances, in the opinion of this Court, the Trial Court committed a grave error in passing the impugned judgment and order and the same deserves to be quashed and set aside.
16. The Criminal Appeal is allowed. The judgment and order dated 20.01.1997 passed by learned Additional Sessions Judge, Vadodara in Sessions Case No.56 of 1995 is quashed and set aside. The accused-appellant is acquitted of the charges Page 13 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM R/CR.A/258/1997 CAV JUDGMENT levelled against him. As the accused is on bail, he need not surrender. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the appellant- accused shall be refunded to him by the respondent-State. Record and Proceedings be sent back to the Trial Court concerned forthwith.
(K.J.THAKER, J.) rakesh/ Page 14 of 14 CRIMINAL APPEAL/258/1997 20/03/2015 03:05:44 AM