Gujarat High Court
Naginbhai Mathurbhai Tadvi vs State Of ... on 8 August, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/1444/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1444 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NAGINBHAI MATHURBHAI TADVI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant
MR MANRAJ A BAROT, ADVOCATE for the Appellant
MR JK SHAH, APP for the Respondent
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 08/08/2017
ORAL JUDGMENT
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HC-NIC Page 1 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The present Criminal Appeal under Section 374(2) read with Section 386 of the Code of Criminal Procedure,1973 (the Cr.P.C.) is directed against the judgment and order passed by the learned 10th Additional District Judge, Vadodara, in Sessions Case No.155 of 2010, whereby the appellant - accused is convicted and order of sentence is passed against him.
2. The case of the prosecution is that on 18.6.2010 at about 21.00 hours at village Zaverpura, there was a rain and storm and on account of which the electricity was disrupted. It is further case of the prosecution that on account of that situation, the roof of the house was blown off. It is further asserted in the complaint that the husband of the complainant, who came along with appellant accused from labour work, the appellant took the disadvantage of the situation. The husband of the complainant happens to be the father of the prosecutrix was repairing the roof of the house, whereas the complainant was preparing the meal in the house. At that point of time, the prosecutrix, aged about 6 years, was sleeping on the Page 2 of 40 HC-NIC Page 2 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT cot in 'Adari' of the house. The complainant, after preparing the meal at around 9.00 O'clock in the night, came to wake up the prosecutrix, who was sleeping found that she was in bleeding condition and having seen this situation, she immediately called the husband to come down. At that point of time, when both complainant and her husband, ignited the lamp and mobile battery, woke up the prosecutrix, whose clothes found with bloodstains and the complainant, after physically verifying the prosecutrix, asked the prosecutrix as to what had happened. At that point of time, the prosecutrix conveyed that Nagindada had come, who gagged her mouth and after removing her clothes, had done the act which resulted into bleeding. On knowing this fact, immediately the complainant and her husband called the uncle Pravinbhai Shankarbhai Tadvi, who, along with aunt - Samkaben and their son - Gopal along with other persons, came to the house and were conveyed about the incident which took place with her daughter, who was raped by the present appellant accused. Since there was a storm and continuous rain and the electricity was disrupted on that night, a complaint could not be Page 3 of 40 HC-NIC Page 3 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT lodged. However, the village people also came to know about this incident. It is further asserted in the complaint that since the appellant - accused was going for labour work along with the husband of the complainant, he was frequently coming to the house and the prosecutrix was also knowing him. On that day at about 6.00 O'clock, the appellant accused along with the husband of the complainant, after the labour work, came to the house and it was conveyed by the appellant accused that as soon as the rain and the storm stop, he would go to his house. Resultantly, the husband engaged himself in arrangement of roof of the house, whereas the complainant went to cook the meal and taking disadvantage of this situation, it is asserted in the complaint, that the appellant - accused committed the rape and ran away and for that purpose, a complaint came to be filed before the Bodeli Police Station which came to be registered as IC.R.No.27 of 2010 on 19.6.2010, which then came to be investigated by the Investigating Officer. 2.1 Mr.Ashokbhai Valabhai Katkad, an Investigating Officer, Bodeli Police Station, upon receipt of the Page 4 of 40 HC-NIC Page 4 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT complaint, has investigated the complaint by taking necessary steps in that regard and upon completion of investigation, a chargesheet came to be filed against the appellant - accused for the offence punishable under Sections 376 of the Indian Penal Code, before the learned Chief Magistrate, Sankheda which was registered as Criminal Case No.3070 of 2010. 2.3 Since the offence was triable by the Court of Sessions, the learned Magistrate in exercise of power under Section 209 of the Cr.P.C., was pleased to commit the case to the Court of Sessions, which was then registered as Sessions Case No.155 of 2010. 2.4 Upon the case being committed, the learned 10th Additional District Judge framed the charge on 25.10.2010 against the appellant - accused vide Exh.6, wherein the appellant - accused pleaded not guilty and therefore, the prosecution has examined as many as 19 witnesses and also produced the documentary evidence, 19 in numbers, to see that the case can be proved beyond reasonable doubt.
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2.5 After leading the evidence, the prosecution tendered a closure pursis and thereafter, the statement of the appellant - accused was recorded under Section 313 of the Cr.P.C., wherein the appellant had reiterated that he is an innocent person and has wrongly been implicated and claimed to be tried. However, he has chosen not examine any witness nor any elaborate explanation on any incriminating issue is given. After the said process being undertaken, the case was put up for further adjudication, wherein after examining the oral as well as documentary evidence and after considering the defence of the appellant - accused, the Trial Court was pleased to pass the judgment and order dated 31.3.2012, whereby the appellant - accused is held responsible for having committed an offence of Section 376 of IPC and thereby, by holding the appellant - guilty of Section 376(2)(f), in particular, of the Indian Penal Code, sentenced him to undergo the life imprisonment with a fine of Rs.1000/ and upon non payment of fine, a 15 days' simple imprisonment is ordered by this judgment and order.
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2.6 Considering the evidence on record and upon examination of the documentary evidence, the Trial Court has specifically found that the case is made out against the appellant - accused beyond reasonable doubt and for coming to this conclusion, a specific version of the prosecutrix as well as the medical evidence appeared to have been examined and relied upon. The Trial Court has also considered the aspect of presence of the accused at the relevant point of time at the house of the complainant. In addition thereto, the Trial Court has found and analyzed the testimony of the FSL Officer and also that of doctor's version, who had medically examined the prosecutrix. On the basis of evaluation by the Trial Court, it was found that there appears to be consistency in ocular evidence as well as the medical evidence and thereby, after considering every material on record, an order of sentence came to be passed on 31.3.2012. 2.7 It is against this judgment and order that the appellant - accused has brought the present Criminal Appeal before this Court which was admitted by this Court on 12.2.2013 and has now come up for final Page 7 of 40 HC-NIC Page 7 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT disposal before us.
3. Mr.Manraj A. Barot, learned advocate for the appellant - accused, has submitted that all the panch witnesses, who have been examined by the prosecution, are the related witnesses and known to the father of the prosecutrix and even the accused and, therefore, it is not safe to rely upon the testimonies of such interested witnesses, to convict the appellant - accused. Mr.Barot has also contended that every interested witness has categorically deposed on the basis of information passed on by the parents of the prosecutrix and there is no evidence of any independent witness and, therefore, on the basis of such evidence, it cannot be said that the prosecution has established the case beyond reasonable doubt. It has also been contended by Mr.Barot that the panchnama which has been drawn is also not in consonance with the statutory provisions contained under Sections 25 and 27 of the Evidence Act. Even the recovery which has been made from the place of the accused is belated recovery and there appears to be contradiction amongst the panch witnesses on such recovery issue. Learned Page 8 of 40 HC-NIC Page 8 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT advocate has further contended that timing of recovery is also deferring from version to version and, therefore, the testimony of panch witness is not of any credence. Learned advocate has also contended that it is highly improbable to believe the case of the prosecution, since as per the testimony of mother of the victim, in the house there were other three daughters and one son already present and the elder girl child named Nirma, aged 9 years, was also very much present in the house and, therefore, the narration of the complaint itself is not believable. Learned advocate has submitted that it is also not believable that the victim, aged about 6 years, would sleep outside portion of the house i.e. Atari in such an atmosphere where not only there was a rain, but also a storm was prevailing and, therefore, the case is highly improbable. In addition to that, learned advocate for the appellant has contended that had there been such an inhumane act committed, then a girl, aged about 6 years, would scream, shout and would not sleep after the act and the mother of the victim has categorically stated that at the time when she saw the victim, was sleeping and, therefore, this Page 9 of 40 HC-NIC Page 9 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT entire version is not believable as per the say of learned advocate for the appellant - accused. It has also been contended that other witnesses have deposed before the Trial Court on the basis of the information passed on by the parents of the prosecutrix and, therefore, their evidence partakes the character of hearsay evidence which is not safe to be relied upon. As per the say of the learned advocate for the appellant - accused, there appears to be a serious doubt about the involvement of accused in commission of crime of such a serious crime and also there appears to be a gross delay in lodging the complaint as well and, therefore, when such weak piece of evidence is reflecting on record, it is not safe to convict the appellant - accused by holding him guilty and that error which has been committed by the Trial Court requires to be corrected. It is also pointed out by Mr.Barot that the blood group of the appellant - accused as well as that of the prosecutrix is the same and from the medical evidence and Serological Report, it is not coming out beyond reasonable doubt that it is the blood group of the accused which has been found on the clothes and "Pati" of the cot and, therefore, Page 10 of 40 HC-NIC Page 10 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT in such a conflicting view which is emerging from the ocular, medical as well as the FSL analysis, it cannot be said that the prosecution has established the case beyond reasonable doubt and by pointing out this, learned advocate has prayed this Court that the findings which have been arrived at by the Trial Court are not in consonance with the material on record and, therefore, in the absence of any cogent evidence about specific involvement of the present accused, the benefit of doubt must be given to the appellant - accused and consequently, requested the Court to grant the relief and allow the appeal filed by the appellant
- accused. No other submissions are made by the learned advocate for the appellant.
4. Opposing the stand taken by Mr.Manraj A. Barot, learned advocate for the appellant accused, Mr.J.K.Shah, learned Additional Public Prosecutor for the respondent - State, has vehemently contended that this is a fit case in which appropriate punishment is awarded as the appellant accused has committed inhuman and heinous crime and made victim a child aged about 6 years of the complainant and, therefore, Page 11 of 40 HC-NIC Page 11 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT since the evidence on record is sufficiently establishing the guilt of the appellant - accused, the appeal deserves to be dismissed. To substantiate his contention, learned APP has contended that from the ocular evidence, if one would peruse the testimony of the prosecutrix, she has all throughout remained consistent and unshaken evidence of her is clearly suggesting that the guilt of the appellant - accused is established beyond reasonable doubt. Mr.Shah has pointed out that the genesis of the case has been established by the prosecution and the main substratum of the complaint has remained consistent if one would peruse not only the testimony of the prosecutrix, but the testimonies of the father as well as the mother - Jyotsnaben (complainant). Therefore, in the absence of any deviation of any manner, such consistent version cannot be ignored and that has rightly been appreciated by the Trial Court. Learned APP has further pointed out and contended that the medical evidence is in consonance with the ocular evidence on record and in addition thereto, Mr.Shah has specifically pointed out the testimony of Dr.Hemant, who not only issued the Certificate, but has examined Page 12 of 40 HC-NIC Page 12 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT the prosecutrix in first point of time on 19.6.2010 itself and there appears to be a clear opinion about the rape with the prosecutrix which is substantiated by the evidence on record. The history which has been given by the prosecutrix before the examination is sufficient enough to establish the guilt of the accused and, therefore, when there appears to be a categorical medical opinion, there appears to be no doubt of any nature about the case of prosecution. In addition thereto, learned APP has pointed out that there is no previous animosity or enmity even alleged by either side and, therefore, the wrong involvement is out of question by the complainant side. On the contrary, the husband of the complainant and the appellant - accused were both working together and evidence is emerging that on account of such relations, the appellant - accused was frequently visiting the house and known to the family members as well, including the prosecutrix and, therefore, when such relation of trust is completely misused by the appellant - accused, no leniency should be shown to the appellant - accused, as the appellant - accused has taken the disadvantage of the situation of storm, Page 13 of 40 HC-NIC Page 13 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT rainy atmosphere and disruption of electricity and, therefore, when such conduct is reflecting from the evidence on record and the guilt of the appellant - accused is established beyond reasonable doubt, the judgment and order assailed in the appeal may not be interfered with.
4.1 Mr.J.K.Shah, learned APP has also contended that the Serological Report is also clearly suggesting the fact of commission of crime. The officer of the FSL, who has examined and analyzed the place offence, has also opined against the appellant. In addition thereto, in Column No.8 of Serological Report at Page No.187 of paperbook compilation, on Pati (MarkB), the sperm is clearly that of the appellant - accused is found and this clearly connecting the appellant in commission of crime and, therefore, when such overwhelming material is evident on record, there cannot be any doubt about noninvolvement of the appellant - accused in commission of crime. In addition thereto, learned APP has pointed out that there appears to be no explanation of any incriminating circumstances which are put to the Page 14 of 40 HC-NIC Page 14 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT accused and except bare denial, there is nothing on record to suggest that any defence is putforth. On the contrary, overall evidence is examined in detail and when the prosecution has established the case beyond reasonable doubt, the Trial Court has committed no error in passing the judgment and order impugned and hence, the appeal filed by the appellant deserves to be dismissed.
5. On the basis of such submissions, since the Court is called upon to examine the validity of the impugned judgment and order and since this being an appeal against an order of conviction, we deem it proper to apply our independent analysis before coming to the conclusion of any nature and, therefore, in such situation, we hereunder examine and analyze the evidence on record which is pressed into service by the prosecution.
6. First of all, a specific charge which has been framed at Exh.6 on 25.10.2010, in which the appellant
- accused was put up for trial is an offence punishable under Section 376 of the Indian Penal Code.
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Now to prove this specific charge of Section 376 of the IPC, the prosecution has examined as many as 19 witnesses. The first examination which is undertaken by the prosecution is in the form of PW1 - Jayantibhai Bhikhabhai Tadvi, who was examined at Exh.12. This witness has deposed before the Court that in his presence, the police collected the "Pati" of cot and the sand from the house of Vinodbhai, who happened to be the husband of the complainant and this panch witness has put his signature upon preparation of the said Panchnama at Exh.13. He along with another PW2 - Maheshbhai Bhagabhai Tadvi, who was examined at Exh.17, also remained present ans signed the said Panchnama as well as the chit about recovery of blood stained sand and "Pati" of cot. This witness, who has consistently supported the case of the prosecution, has specifically identified by the appellant - accused in the Court. A bare perusal of the crossexamination of this witness has reflected that it is not correct that prepared Panchnama was got signed by the police and, therefore, this witness has supported the case of the prosecution.
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6.1 The Panchnama which has been prepared is exhibited at Exh.13, reflecting not only that there were bloodstains found on the place of occurrence, but also the bloodstains reflected on the "Pati" of the cot as also on the floor of the house in the "Adari" portion where the cot was lying on which the prosecutrix was sleeping. While drawing the Panchnama, the Officer of the FSL was also called from Vadodara, who, upon examination of the scene of offence, collected the controlled sand, the bloodstained sand and "Pati" and after packing, the same was sent for further analysis. This Panchnama has been drawn on the very next day i.e. on 19.6.2010 at 17.45 hours, whereas the offence took place at 21.00 hours n 18.6.2010. Therefore, the Panchnama was drawn without any much delay.
7. The prosecution has thereafter examined PW2 - Maheshbhai Bhagabhai Tadvi, at Exh.17. This witness is also panch witness of Panchnama of scene of offence. In addition to the Panchnama of scene of offence, said witness is also the panch witness to the recovery of the bloodstained clothes of the prosecutrix. This Page 17 of 40 HC-NIC Page 17 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT witness has reiterated even in crossexamination that he had put the signature and also denied that the Panchnama was not a prepared Panchnama and, therefore, he has supported the stand of the prosecution. The Panchnama at Exh.18 reveals that same is supported by this aforesaid PW2 which was drawn on 19.6.2010 at 10.30 hours.
8. One another witness has been pressed into service by the prosecution is PW3 - Bhikhabhai Kanjibhai Tadvi, who was examined at Exh.20, in which also said witness has supported the case of the prosecution and this witness has not been declared hostile and, therefore, so far as Panchnamas are concerned, the same have been established and supported by the testimonies of the panch witnesses. The record reveals that prosecution has examined yet another witness PW4 - Pravinbhai Ganpatbhai Tadvi, at Exh.21. Said witness is the panch witness of panchnama of recovery of clothes, worn by appellant - accused - Naginbhai. This witness in crossexamination has deposed that police has written the said Panchnama on which he signed which is at Exh.22. This Panchnama of Page 18 of 40 HC-NIC Page 18 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT recovery of clothes is at Page81, in which it is reflecting that it is the appellant - accused who on his own drew the squad and led the Investigating Officer along with the Panchas to show the clothes in the form of Pant, Shirt and undergarment worn by him at the time of commission of crime. Incidentally, a fact is also emerging from this Panchnama which is also established that on the fateful day i.e. on 18.6.2010, the appellant - accused went with the father of the prosecutrix at his house since there was a rain and storm. The description of the clothes worn by him is detailed out in the said Panchnama. But this Panchnama since well supported by panch witnesses who have not turned hostile, it appears that same is establishing the fact mentioned therein during the course of trial. Now to support this, the prosecution has examined PW5 - Pratapbhai Dhanabhai Tadvi, at Exh.24, who has not only identified the appellant - accused, but has also fortified the fact that he put his signature on the Panchnama. Of course, he has conveyed in the crossexamination that in his presence, no muddamal was recovered nor a Panchnama was drawn. However, nothing turns on it as it appears.
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9. In furtherance of endeavor to establish the case against the appellant - accused, the prosecution has examined PW6 Madhavbhai Maganbhai Patel, at Exh.25. This witness is a panch witness of Panchnama of physical condition of the accused. Said Panchnama at Exh.26 which is reflecting on Page89 of the paper book compilation where nothing incriminating was found since said Panchnama as it appears - drawn on 2.7.2010 i.e. much after the day of the incident.
10. The prosecution in order to establish the case has also examined PW7 - Vinodbhai Vitthalbhai Patel, at Exh.29. This witness happens to be the father of the prosecutrix. In the chiefexamination, this witness has categorically sated that since on 18.6.2010 there was a storm and rain, the appellant - accused and he came back to his house at about 6.00 O'clock after their labour work was over and since on account of storm and rain, roof of the house got damaged and blown off, he went to repair the roof, while his wife i.e. the complainant was preparing the meal in the kitchen. He further asserted in the Page 20 of 40 HC-NIC Page 20 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT deposition that the prosecutrix was sleeping on the cot in "Adari" portion of the house and when the wife of this witness had gone to wake up the prosecutrix, at that point of time she found that she was in bleeding condition; her clothes were reflecting blood stains and the blood was oozing out continuously. Immediately on seeing this, the wife called this witness and when daughter was asked as to what happened, it was specifically conveyed by the prosecutrix that Nagindada i.e. present appellant had gagged her mouth and also removed her clothes and done the act. On realizing this situation, immediately this witness had called PW4 - Pravinbhai Ganpatbhai Tadvi (uncle), who, along with Samkaben (aunt) and their son - Gopal came there and were appraised with this fact. It is further reflecting from the deposition of this witness that since there was continuous rain, storm and disruption of electricity, they did not go to lodge the complaint and thereafter, immediately on the next day i.e. on 19.6.2010, they lodged the complaint at Bodeli Police Station by narrating the say which has been conveyed by the prosecutrix. This witness has specifically identified Page 21 of 40 HC-NIC Page 21 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT the appellant - accused. In the crossexamination of this witness, it is revealing that this appellant - accused came to the house at around 6.00 O'clock along with him after the labour work. At that point of time, there was no electricity in the house on account of storm and rain and also no visibility prevailing. This witness has reiterated that the prosecutrix has specifically narrated and conveyed as to what had happened. Further crossexamination is reflecting about the topography of house, in which it has been asserted by this witness that if anything happens in "Adari", normally no voice will reach to a place where this witness was arranging the roof of the house. This witness has further conveyed that it is not correct that the appellant - accused has not done such gruesome act with his daughter and is wrongly roping the appellant - accused on account of any personal grudge. In fact, the entire deposition is reflecting that there is no previous animosity between the appellant - accused and the present witness. It is also reflecting that the appellant - accused was known to the family and was used to go together for labour work.
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11. The prosecution has further examined PW8 - Pravinbhai Shankarbhai Tadvi, at Exh.30. This witness happens to be the uncle of father of the prosecutrix. But since this witness was posted above facts narrated by the parents of the prosecutrix, he can be said to a hearsay witness. But nonetheless this witness has supported the case of the prosecution and reiterated that immediate phone call came informing about the incident in question and he rushed to the spot with his family members. This witness is also knowing the appellant - accused, who is residing in Navingiri.
12. The prosecution has also examined PW9 - Alkeshkumar Kantilal Desai, at Exh.31. This witness has deposed that on 2.7.2010 i.e. nearly after 14 days of the incident in question, the police called him saying that they had arrested one accused, who has committed the offence under Section 376 of the IPC and by drawing the arrest Panchnama at Exh.26, his signature was obtained. This witness has categorically stated that Vinodbhai and Jyotsnaben had narrated about the incident in question and also reiterated that in his presence, the Panchnama was drawn by the Page 23 of 40 HC-NIC Page 23 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT police at Exh.26.
13. The prosecution has examined next one of the most important witness of the present case, who is PW 10 - Jyotsnaben Vinodbhai Tadvi, at Exh.32. This witness is the complainant in this case. The analysis of the evidence of this witness is reflecting that on the day when the offence took place, she was preparing meal in the house, where as the husband Vinodbhai was arranging the roof. She has categorically stated that the prosecutrix was sleeping on the cot in "Adari" portion of the house and when she went to wake up her for the purpose of taking meal, she found prosecutrix in a bleeding condition and bloodstains were found on the clothes worn by the prosecutrix. Upon seeing this, she immediately shouted for the husband to come and when both asked the prosecutrix, the prosecutrix had categorically stated that it is the Nagindado i.e. appellant - accused, who gagged her mouth and after removing the clothes, did the act and on account of which the bleeding started. She has stated that after committing that act, he ran away. She has stated that immediately thereafter both herself and her husband called the uncle Pravinbhai and his family members and Page 24 of 40 HC-NIC Page 24 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT since there was a rainy season and storm, they had not filed the complaint as electricity was also disrupted and subsequently, this fact was brought to the notice of the police authority and lodged the complaint at Bodeli Police Station. This witness has categorically identified the clothes which were worn by the prosecutrix on the day of the incident and has also identified the accused - Nagin. In crossexamination, by maintaining her version, she has completely supported the case of the prosecution. On the contrary, from her crossexamination, it is revealing that the presence of the appellant - accused lastly at the house on that day when the occurrence took place is established and, therefore, this witness has materially deposed in favour of the prosecution.
14. The next document is the complaint which has been filed on 19.6.2010, in which also the narration is in consonance with the testimony of witness which she has deposed before the Court.
15. The prosecution has made an attempt to establish the case by taking assistance from another PW11 - Mangiben Pravinbhai Tadvi, who was examined at Exh.35.
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This witness happens to be the neighbour, who had also identified the appellant - accused. It was fortified in her deposition that on the day of incident, when she went upon knowing the fact of incident there was darkness and electricity was disrupted throughout the whole night. She has admitted that when the police came, she gave her statement. She has also stated that whatever written by her is on the basis of information passed on to her by the complainant - Jyotsnaben.
16. The next witness examined by the prosecution is PW12 - Gopalbhai Naranbhai Tadvi, examined at Exh.38. This witness appears to be the relative of the complainant and cousin of the husband of the complainant. He went along with his father Pravinbhai and mother on passing of immediate information on the phone of Bipinbhai, one of the neighbourers. In cross examination, he has admitted that he is not having the phone, but in Faliya, the phone call came at the residence of Bipinbhai Chandubhai, who, in turn, informed him. Resultantly, he and his parents went to the house of the complainant.
17. Yet another witness pressed into service by the Page 26 of 40 HC-NIC Page 26 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT prosecution for proving the case is PW 13 - Shaniben Vitthalbhai Tadvi, who was examined at Exh.40. This witness, who happens to be the motherinlaw of the complainant, has stated that the complainant - Jyotsnaben informed her about the occurrence with the prosecutrix. She has conveyed in crossexamination that she had no personal knowledge about it, but the information about the incident was reported to her by the daughterinlaw, namely, the complainant - Jyotsnaben. Nothing much turns on this, but the next witness who is the main witness examined by the prosecution is PW14, who has deposed at Exh.41 and is the prosecutrix.
18. The deposition of this witness was taken in the month of February,2012. At that time she was aged about 8 years. Though she is a child witness but before taking the deposition, few questions which were relevant to ascertain whether she is in a position to depose had been asked and thereafter, the deposition started. There was a specific question posed before her in the Court that what had happened in the year 2010 and at that time, she has categorically and empathetically stated that when she was sleeping on Page 27 of 40 HC-NIC Page 27 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT the cot in the house, the appellant - accused - Nagindada had come and gagged her mouth and did the act. She has categorically identified the accused - Nagindada, who was standing in the Court. In cross examination also, she has remained unperturbed and has categorically reiterated what has been done by the appellant - accused with her. She has identified this accused not only in the Court, but has recollected at the time when occurrence took place and, therefore, this witness has unshakenly reiterated the act which has been done with her by the appellant - accused. Thus, this witness has remained consistent from the day of incident till the deposition being taken in the Court.
19. The record of the case indicates that the prosecution has further examined PW15 Mr.Ashokkumar Popatlal Jani, at Exh.43. This witness, who happened to be an FSL Officer, was called to analyze the scene of offence scientifically. This witness has specifically verified the spot of offence and has found that the cot which was lying in 'Adari' portion of the house was admeasuring 65'x36' rolled over by cotton 'Pati', on which there were blood marks found.
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This witness had also found the bloodstains on flooring as well as on cot and the Chemical Test had been undertaken (Benzadine Test), wherein positive result was found. The controlled sand was also collected and after properly sealing the same, was handed over to the police authority for the purpose of analysis. In crossexamination, it has been stated by him that Benzadine Test would not identify the blood group of a person and therefore, it appears that further analysis was undertaken. The initial report of FSL officer is at Page123 of the paperbook compilation. But since this has been fortified by the testimony of this witness, we found no deviation.
20. The prosecution has further examined PW16 - Dr.Maitri Chetanbhai Shah (Gynecologist), at Exh.46. This witness had on 20.6.2010 physically examined the prosecutrix, who was brought by the mother i.e. the complainant. In the history which had been given at the initial stage while she was brought to the hospital also, there was a reference with regard to specific name of the appellant - accused. This Medical Officer also found that there are no abrasion marks.
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However, there was a specific first degree perennial tear was present and since there was no active bleeding, the patient was discharged from the hospital on 26.6.2010. In crossexamination, this witness has stated that since the victim - prosecutrix was aged about 5 years, she had not put any further questions and therefore, the history was recorded after ascertaining from the mother. But the substance of this examination is that there was a first degree perennial tear. The report related to the physical condition is also appended to the compilation after Page127 onwards.
21. The prosecution has also taken assistance to prove the case by examining PW17 - Dr.Rameshbhai Khemabhai Parmar, at Exh.48. This witness was serving as Medical Officer in S.R.Group14, Kevadiya, District
- Narmada. This witness has stated before the Court that the appellant - accused was brought by the police with Yadi and for the purpose of physical examination of this accused, he was brought before him on 3.7.2010, namely, after almost a period of 16 days from the incident in question. The testimony of this Page 30 of 40 HC-NIC Page 30 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT witness is revealing that the appellant - accused - Naginbhai had stated before him that though he had not committed an act with the prosecutrix, still the relatives of the prosecutrix had beaten up and was brought before the police station. The physical examination is not revealing any marks of injuries, but was found by this Medical Officer that he was capable of having sex. The crossexamination has indicated that there were no injuries on the body of the accused. However, the Medical Officer has opined that if a rape is committed by the accused on five years' girl, then on private part the injuries may or may not be there. Nothing much turns out from the deposition of this witness.
22. Further, the testimony of PW18 - Dr.Hemant Dahyabhai Patel, who was examined at Exh.53 and who was the Medical Officer, is also significant to the background of this case. This witness has in his deposition has categorically stated that prosecutrix was brought for physical check up by the grandmother and the mother i.e. complainant of the prosecutrix and before checking, consent letter was obtained by him.
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This witness had examined the prosecutrix immediately on the next day of occurrence i.e. on 19.6.2010 and the history had also been recorded. Upon physical examination, this witness had specifically found the cut mark in the lower portion of the Labia Minora admeasuring around 4 x 0.5 x 0.5 cm. Proceeding towards anal portion of the prosecutrix. The general condition was found to be normal by this Medical Officer. However, it has been categorically stated that there was a swelling and pain in lower part of the stomach and there were no other external marks of injuries. However, when the private part of the prosecutrix was checked up, there was a swelling as well as pain and therefore, a specific opinion was given by this Medical Officer, who, first in point of time, examined the prosecutrix, that there appears to be a rape on the prosecutrix. This important witness has, in crossexamination, further reiterated that history about rape being committed on the girl was recorded. He has denied that recording of the history at Exh.56 is not written down at the instance of grandmother or the Yadi. But overall analysis of this evidence is reflecting that on the private part of the Page 32 of 40 HC-NIC Page 32 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT prosecutrix, there was a swelling as well as cut mark as found upon physical examination.
23. To prove the case, another P.W.No.19 - Ashokbhai Valabhai Katkad, examined at Exh.56, has been pressed into service by the prosecution, who happens to be the Investigating Officer. This police witness who is serving as A.S.I. at Bodeli Police Station at that time a complainant Jyotsnaben, wife of Vinodbhai Tadvi came to lodge the complaint and as per her say, whatever conveyed is written down in the complaint. During the course of investigation, this witness has examined and recorded the statements of several witnesses and also undertaken the process of drawing panchnamas of the scene of offence, has also arrested on 2.7.2010 as found material against the appellant. The physical condition has also been ascertained by examining him and all the muddamal articles which were recovered were sent by him to F.S.L. Office, Vadodara. This witness having found enough material against the appellant accused had submitted the chargesheet before the Court concerned and also identified the accused. In crossexamination, he has stated that Page 33 of 40 HC-NIC Page 33 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT Serological analysis of the sperm which has been collected, the result is undecided. However, in cross examination, he has stated that blood group 'O' is same of both the appellant - accused as well as the prosecutrix. It appears further that there appears to be no other oral testimony except last this witness, who has examined PW19.
24. Further, from the analysis of documentary evidence, few instances are very relevant and, therefore, same are considered by us while analyzing the evidence. The Ravangi Nondh indicates that several samples have been collected and sent for analysis. On Page185 of the paperbook compilation, the result of such analysis is indicating that in Column No.1, Item No.2, MarkB is found to be with sperm mixed with blood. Even in Item No.5 in Column No.2 of this result, human blood has been found and same is the case with Item No.8 in Column No.3 where human sperm has been found. Even in Item No.13 in Column No.6, the sperm has been found and the same is the case with Item No.16 of Column No.7. The further analysis in the form of Serological Report at Page187 of the paper Page 34 of 40 HC-NIC Page 34 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT book compilation has categorically reflected that in Item No.8, 'Pati" MarkB, the sperm has been found of "O" blood group which is undisputedly belonging to the appellant - accused and, therefore, when such incriminating circumstances have been found, so succinctly on record, it prima facie conclude that the case is made out against the appellant - accused.
25. On further examining the material, we found that in further statement recorded under Section 313 of the Cr.P.C. on all these incriminating circumstances which were reflecting on record, there appears to be no cogent explanation of whatsoever nature. On the contrary, on one hand, there is no explanation in entire 313 statement of the appellant - accused and on the other hand, when the appellant - accused was heard on the issue of sentence, he categorically stated that he is having no parents; his wife has left him 8 years back and there is no child and further categorically stated that for committing such act, he has repented and and requested to give pardon. Now this version is reflecting on Page235 of the paperbook compilation which indicates that when the incriminating Page 35 of 40 HC-NIC Page 35 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT circumstances connecting the appellant accused have been put to him, no explanation is offered. On the contrary, it reflects the repentance and admission of the appellant - accused and therefore, we, with this background of fact, even from documentary material also found that the case is made out by the prosecution which is connecting the appellant - accused with crime beyond reasonable doubt and, therefore, there appears to be no serious infirmity in the judgment and order passed by the Trial Court.
26. Further, our independent overall analysis is indicating that the prosecutrix in the present case is minor, aged about 6 years and the appellant was a person of trust in the house, as it is emerging from the record that on account of his going for labour work with the father of the prosecutrix, was having frequent visit of the house, all the family members were knowing the appellant - accused including the prosecutrix.
27. We also found from the record that a specific attribution against the appellant has remained Page 36 of 40 HC-NIC Page 36 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT consistent right from the day of narration by the prosecutrix till the deposition which has taken place in the Court. Consistently and unshakenly the prosecutrix has pointed out everywhere against the appellant - accused for committing rape on her. Not only even the history before the doctor has remained the same, but the medical examination of the prosecutrix is fortifying the version of the prosecutrix, as injuries have been found by PW18 - Dr.Hemant Dahyabhai Patel. Therefore, overall testimony of the prosecutrix, the deposition of the complainant about the narration of the incident, is well supported by the medical evidence and the prosecutrix even in crossexamination has not shattered nor shaken and, therefore, since that consistent version being corroborated by the medical evidence, more particularly identification has also been made by the prosecutrix, there appears to be no reasonable doubt which would permit us to dislodge the finding arrived at by the Trial Court.
28. Perusal of the entire record and our independent analysis has further revealed that there is a Page 37 of 40 HC-NIC Page 37 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT consistency in the medical evidence as well as ocular evidence and the last seen together of appellant - accused at the house of the prosecutrix is also clearly emerging. On the contrary, the situation was such where there was no electricity, the rain and storm was in process and the evidence is indicating that the appellant - accused has taken disadvantage of the situation and committed the crime.
29. It is further revealing clearly that the Serological Report is also categorically pointing out the finger of misdeed committed by the appellant - accused and there is no explanation of any nature cogent enough of incriminating circumstances which are reflecting on the record and therefore, we see no reason to disbelieve the case of the prosecution in any manner. Apart from the fact that in 313 statement, the defence has not putforth any explanation, but at the same time, no defence witness has also been examined. On the contrary, when the hearing was afforded to the appellant - accused on the issue of sentence, he appeared to have admitted the crime and sought pardon and, therefore, when consistent version Page 38 of 40 HC-NIC Page 38 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT has come out clearly of the prosecutrix coupled with well supported medical evidence and FSL analysis, we see no reason to disbelieve the testimony of the prosecutrix and the complainant as well.
30. In addition to this, we have also found that there is no evidence of any nature which would indicate even remotely that on account of some animosity, a chance of false implication is there. On the contrary, the relations were very much cordial. The father of the prosecutrix and the appellant - accused were going together for labour work and on account of that, there was a frequent visit at the house of appellant - accused and practically, all the family members were knowing the appellant - accused and, therefore, element of trust was prevailing in the house of the complainant for appellant accusedand that being misused, we found that sentence which has been awarded and the order of conviction which has been passed for offence punishable under Section 376(2)(f) of the Indian Penal Code is justified and sentence has been appropriately awarded and this being the position, we are in complete agreement with the Page 39 of 40 HC-NIC Page 39 of 40 Created On Wed Aug 09 02:42:54 IST 2017 R/CR.A/1444/2012 JUDGMENT judgment and order of conviction and sentence passed by the learned 10th Additional District Judge, Vadodara.
31. In view of the above, the present appeal being meritless is dismissed hereby. The judgment and order, dated 31.3.2012, passed by the learned 10th Additional District Judge, Vadodara in Sessions Case No.155 of 2010, consequently is hereby confirmed. Record and Proceedings be sent back to the trial Court concerned, forthwith.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) vipul Page 40 of 40 HC-NIC Page 40 of 40 Created On Wed Aug 09 02:42:54 IST 2017