Gujarat High Court
Vali @ Valimamad Babu @ Rajmamad Jokhiya vs State Of Gujarat on 2 July, 2019
Equivalent citations: AIRONLINE 2019 GUJ 226
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/CR.A/1111/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1111 of 2019
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VALI @ VALIMAMAD BABU @ RAJMAMAD JOKHIYA
Versus
STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Opponent(s)/Respondent(s) No. 2
MS.JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR(2) for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI
Date : 02/07/2019
ORAL ORDER
1. This appeal is directed against an order passed by the learned Additional Session Judge, Porbandar dated 30.04.2019 rejecting the regular bail application, being Criminal Misc. Application No.801 of 2019, after submission of chargesheet of the present appellant.
2. The present appellant is facing charge for an offence punishable under Sections 376 (2) (n) and 506 (2) of the Indian Penal Code as also under Section 135 of the Gujarat Police Act, vide C.R.No.I 1 of 2019 registered on 18.02.2019 with Madhavpur Police Station, District:
Porbandar. After registration of an offence, investigation proceeded into the case and vide report dated 26.02.2019, the Investigating Officer requested the learned Magistrate to add Sections 313 and 450 of the Indian Penal Code, Sections 4,5 (l) and 6 of the Page 1 of 6 Downloaded on : Wed Jul 10 01:33:01 IST 2019 R/CR.A/1111/2019 ORDER Protection of Children From Sexual Offences Act, 2012 as also vide report dated 06.03.2019, the Investigating Officer further reported to the learned Judge (POCSO) and requested to add Sections 3 (1) (w) and 3 (2) (v a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocity Act"). After invoking the provisions of the Atrocity Act, this appeal is filed, after submission of chargesheet when regular bail application was rejected, under Section 14 A of the Atrocity Act.
3. Heard Mr.Anandjiwala, learned Senior Advocate for Mr.Vishal K. Anandjiwala, learned advocate for the appellant. He submitted that the impugned FIR has come to be filed nearly about four months after the alleged offence is known to the first informant. He has further submitted that on the date of impugned FIR, as disclosed in it, the prosecutrix was aged about 19 years and one month. As per his submission, even if any sexual act is committed by the appellant, it is with the consent of prosecutrix as she has not complained to anyone from the date of first incident and she had relations with the appellant for about four occasions atleast. He has further submitted that on 13.02.2019 when she was taken to the hospital with the complaint of bleeding, there also she has not disclosed the offence committed by appellant to anyone. Taking this Court to the contents of FIR, learned Senior Advocate has argued that prosecutrix did not file any complaint atleast for one year after alleged offence is committed. According to him, she was with parents, in the house and when Page 2 of 6 Downloaded on : Wed Jul 10 01:33:01 IST 2019 R/CR.A/1111/2019 ORDER incident had occurred she should have immediately reported to her parents. It is further submitted by him that if at all the case put up by prosecution is believed to be true, she has kept silence for about one and half year of the offence committed. Therefore, case put up by prosecution is not believable at all. For this one and half year, she has not complained to anyone nor she has disclosed to anyone. Therefore, in his submission, the case put up by the prosecution is not believable at all. In support of the aforesaid grounds, Mr.Anandjiwala, learned Senior Advocate has submitted that appellant is from respected family, owns considerable land as also he is owner of mines. According to him, the prosecutrix and the complainant might have been instigated by his rivals, and therefore, no reliance can be placed on the case put up by the prosecution.
4. Mr.Chintan G. Popat, learned advocate for respondent no.2 has filed an affidavit of original first informant, which is taken on record. In the affidavit, he has reiterated the contents of the chargesheet and has requested the Court not to exercise the discretion in favour of the appellant.
5. Ms.Jirga Jhaveri, learned Additional Public Prosecutor for the respondent - State has also submitted that not only prima facie case as alleged is made out, even looking at the statement of one Rasikbhai Siddikqbhai Halepotra, she has submitted that the day on which alleged offence is registered, appellant - original accused met the witness and informed about incident Page 3 of 6 Downloaded on : Wed Jul 10 01:33:01 IST 2019 R/CR.A/1111/2019 ORDER occurred, therefore,said witness has knowledge of the same. He has further disclosed that knife, which was used for commission of offence over prosecutrix, had been entrusted to the said witness for safe custody. He has produced the knife and panchnama is also drawn.
Learned APP, as also learned advocate for the first informant, submitted that looking at the age of the prosecutrix as also age of the appellant, he is not required to be granted the bail.
6. Having gone through the papers of chargesheet and considering the arguments advanced by the learned advocates appearing for the parties, it is clear that the appellant has taken disadvantage of age of the prosecutrix and on knife point committed the offence of repeated rapes over her when she was less than 18 years. Considering the age of appellant, being 41 years, having wife and two children, prosecutrix might be of the age of his own children too. Not only that, looking at the statement of prosecutrix recorded on 19.02.2019, it is clear that when she was complaining about abdominal pain on 12.02.2019, appellant had gone to her and even administered pills for abortion. Conscious about the fact of commission of offence of rape has administered pills to her which led to abortion and put her in severe bleeding condition, for which, she has to be treated in hospital for nearly about ten days. Considering the statement of prosecutrix first time offence is committed about one and half year anterior to the date of her statement, when she was less than 18 years and continued till it has been disclosed to her parents.
Page 4 of 6 Downloaded on : Wed Jul 10 01:33:01 IST 2019R/CR.A/1111/2019 ORDER Therefore, argument canvased by learned Senior
Advocate that she might have consented, has no legs to stand, as acts committed, when she was less than 18 years. Therefore, consent or no consent pales into insignificance, as offence is made out.
7. Not only the appellant has taken disadvantage of her tender age, he has satisfied his lust and committed repeated rapes and considering her statement, she could not even complain to her parents, as disclosed in statement dated 19.02.2019. Considering her statement and overall evidence collected during the course of investigation, reading it alongwith statement of Rasikbhai, it is clear that offence of serious nature has been committed by the appellant, which dis-entitles the appellant for bail. This Court would like to deal with the argument advanced by learned Senior Advocate with regard to the inconclusiveness of DNA test so far as it relates to matching of the blood group of the appellant and foetus of the prosecutrix. Arguments advanced is misconceived, if it would have matched, it might have been the death knell in the coffin. However, non matching of it, in view of ample material available on record about the guilt of the appellant, would not lead to conclusion that no offence is committed by the appellant. The DNA report, when matched, samples drawn from prosecutrix and foetus, it proved that she became pregnant because of the rape committed by the accused. Therefore, in the opinion of this Court, the appellant does not deserve to be enlarged on bail. It is clarified that all the observations made in this order is Page 5 of 6 Downloaded on : Wed Jul 10 01:33:01 IST 2019 R/CR.A/1111/2019 ORDER prima facie in nature and for the decision in it, Trial Court may not be influenced by it.
8. Hence, this appeal is dismissed.
(UMESH A. TRIVEDI, J) VARSHA DESAI Page 6 of 6 Downloaded on : Wed Jul 10 01:33:01 IST 2019