Gujarat High Court
Shaileshji Shakaraji Thakor vs State Of Gujarat on 5 May, 2018
Author: A.Y. Kogje
Bench: M.R. Shah, A.Y. Kogje
R/CR.A/156/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 156 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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SHAILESHJI SHAKARAJI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
MR YOGENDRA THAKORE(3975) for the PETITIONER(s) No. 1
MS CM SHAH, ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 05/05/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE) Page 1 of 18 R/CR.A/156/2018 JUDGMENT
1. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'the Code') is preferred against the judgment and order of conviction dated 03.08.2017 passed by the 2nd Additional District and Special POCSO Judge, Ahmedabad (Rural) in Special POCSO Case No.6/2016.
2. The brief facts in a nutshell are as under :-
a) A First Information Report being I-C.R. No.42/2014 came to be registered at Detroj Police Station by the complainant - Jayantibhai Keshabhai Devipujak who is the father of the victim - a girl aged 8 years on 06.09.2014. In the First Information Report, it is narrated that the daughter of the complainant who was playing in the neighborhood was abducted and thereafter, in the place nearby the Society where there is a slaughter house, the appellant committed rape upon the victim and while doing so, suffocated her to death by throttling.
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b) After due investigation, the chargesheet came to be filed and the case came to be registered as Special POCSO Case No.6/2016 and after complying with the provisions of Section 207 of the Code, and the appellant having pleaded not guilty vide Exhibit 7, the charge vide Exhibit 6 came to be framed, under Sections 363, 366, 376 and 302 of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to in short as 'the POCSO Act'). As the accused pleaded not guilty, the trial commenced.
3. During the course of the trial, the following oral and documentary evidences were led by the prosecution :-
:: Oral Evidence ::
Sl. Occupation / Exhibit
Name of Witness
# Detail No.
1 Dr. Dilip Keshavlal Patel Medical Officer 8
2 Dr. Kaushal Bharatbhai Patel Medical Officer 17
Jayantibhai Keshabhai
3 Complainant 23
Devipujak
4 Dilipbhai Sandhabhai Patel Panch - Witness 27
5 Kanubhai Mafaji Thakor Panch - Witness 29
6 Fakir Satarsha Abbasmiya Panch - Witness 31
7 Isabbhai Umarbhai Ghachi Panch - Witness 33
8 Nitaben Jayantibhai Witness 35
9 Prahladbhai Kantibhai Devipujak Witness 36
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10 Amratji Manaji Witness 37
Investigating
11 Yakubkhan Samrathkhan Pathan 38
Officer
12 Manishaben Miteshkumar Patel F.S.L. Officer 53
:: Documentary Evidence ::
Sr. Exhibit
Particulars of Document
No. No.
1
Letter regarding giving of P.M. note after 9 performing P.M. through the Panel Doctor. 2 Dying Declaration form of the dead body. 10 3 P.M. Report. 11 4 Viscera Report 12 5 Letter regarding issuance of Certificate after carrying out the Medical examination and 18 taking the necessary samples of the accused. 6 Case Papers of the treatment of the accused. 19 7 Forwarding letter regarding the samples 20 sent to F.S.L. 8 M.L.C. Certificate. 21 9 Forwarding letter regarding the D.N.A. report 22 of the accused.10 Complaint 24
11 Panchnama of the scene of offence. 28 12 Panchnama of the seizure of the clothes of the 30 deceased.13
Panchnama of the physical condition of the 32 accused.
14 Panchnama of the place of the offence shown 34 by the accused.
15 Birth Certificate of the deceased Tejalben. 39 Page 4 of 18 R/CR.A/156/2018 JUDGMENT 16
Letter regarding drawing the map of the place 40 of offence and forwarding the same.
17 41 Papers of F.S.L. to 47
4. Considering the evidence on record, the appellant was convicted for the offences under Sections 363, 376 and 302 of the Indian Penal Code and under Section 4 of the POCSO Act. However, the Court acquitted the appellant of the offences under Section 366 of the Indian Penal Code. The chargesheet came to be filed on 03.12.2014.
5. By an order dated 20.04.2018, the record and proceedings of the trial Court were called for and at the request and consent of all the concerned, the Criminal Appeal was taken up for final hearing.
6. Learned Advocate for the appellant submitted that though the offence is of a gruesome nature, yet the prosecution failed to establish the involvement of the appellant beyond reasonable doubt. It is submitted that when the First Information Report was filed, no name was given as to who had committed the offences. It is Page 5 of 18 R/CR.A/156/2018 JUDGMENT submitted that the informant has not named the appellant in the First Information Report and has stated that some unknown person had induced his daughter, abducted her and committed the murder. Therefore, it is still not established by the prosecution as to how the investigation was able to detect and arrest the applicant on 06.09.2014. Therefore, it is submitted that the appellant has been framed in the offences.
a) It is submitted that the conviction is based on the confessional statement made by the appellant before the Medical Officer, who had carried out his physical examination. It is submitted that though such statement was made before the Doctor, such finding cannot be used against the appellant, as the same was made after he was convicted.
b) Learned Advocate for the appellant has relied upon the following judgments :-
Indra Dalal v. State of Haryana reported in 2015 SAR (Criminal) 857;
Bijendra Bhagat v. State of Uttarakhand reported in 2015 SAR (Criminal) 866 and Page 6 of 18 R/CR.A/156/2018 JUDGMENT The judgment of the Allahabad High Court in the case of Anand Pasi v. State of U.P. and Another reported in 2014 CRI. L.J. 1992
c) It is further submitted that the Sessions Court has unduly relied upon the evidence of FSL, more particularly, when such evidence was not established as per the provisions of the Evidence Act. He therefore, submitted that when there is a glaring lacuna in the case of the prosecution, the conviction of the appellant in such grievous offences cannot be sustained and has prayed for setting aside the appellant's conviction.
7. As against this, learned Additional Public Prosecutor Ms. C.M. Shah has supported the judgment and order of the Special Court. It is submitted that by way of cogent evidence, the prosecution was able to establish the charge against the appellant beyond reasonable doubt. It is submitted that the entire investigation was conducted in a free and fair manner and that all the witnesses during the course of the trial including the panch witnesses have supported the case of the prosecution.
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a) Learned Additional Public Prosecutor thereafter, took this Court through the evidence on record available in the record and proceedings and submitted that the scientific evidence which was brought on record through the deposition of the FSL Officer can be termed as clinching evidence and reliable enough to base the conviction of the appellant.
8. We heard learned Advocates for the respective parties and have perused the impugned judgment and award.
9. The prosecution has examined Dr. Dilip Keshavlal Patel as PW-1 at Exhibit 8. Through this witness, the prosecution has proved the Post Mortem Report. In his deposition, the Doctor has given details of the injuries suffered by the victim which included the injuries caused on the private parts and has given an opinion of forcible intercourse and the case of the death being asphyxiation by causing suffocation and throttling. The Court has also perused the post mortem report at Exhibit 11, wherein all over the body, the victim is shown to have suffered severe injuries. In Column No.15, 17 and 20 of Page 8 of 18 R/CR.A/156/2018 JUDGMENT the Post Mortem Report, the injuries are described. It is shown that the victim has suffered tear of the hymen, bruises on the vaginal wall, aberrations on the chest and aberrations on the inner part of the inner thighs.
10. Dr. Kaushal Bharatbhai Patel is examined as PW-2 at Exhibit 17. This witness had carried out the medical examination of the appellant and in the history before the Doctor, the appellant has narrated as to how the entire incident has taken place, where he has admitted to the commission of rape on the victim and thereafter, throttling her to death. The history of this witness thus, narrated at Exhibit 21 is reproduced as under :-
"M.L.C. Certificate This is to certify that Shaileshji Shakraji Thakore 22 years old of Detroj was brought by Detroj Police with Yadi for the medical examination with history of alleged rape.
Patient was brought on 06.09.2014 at 10.53 P.M. Patient was examined in the presence of on duty male staff of hospital with taken consent of patient.
History of alleged rape with following history. In the patient's words himself. On date 05/09/2014 at 8.00 A.M. I came to my shop, then I went to Ambliyagam and Jamnagar to meet my relatives. I enjoyed guestship at Jamnajur and I came back returned to Detroj about 5.30 PM on Page 9 of 18 R/CR.A/156/2018 JUDGMENT 05/09/2014. After reaching Detroj petrol pump I went to "saramiyavas" near "Indira Nagar" and I was passing to my house. I was going to my house at about 7.30 PM, 05/09/2014. When I was going to my house one girl aged 8 years named "Tejal Devipujak" stucked me and I lifted her up and carried to her to "Charma Kund" of Detroj, by closing her mouth by my one hand and caught her neck by my another hand. After reaching to "Charma Kund" I removed her underwear and I have pressed her mouth and neck by my hand, and I had tried attempt for rape. During attempting rape I have .. open my zip of my pent. While pressing her neck and mouth "Tejal" had died in few minutes. Then after 8.0' clock 05/09/14 I came to Rafiq's shop for enjoying movie. After ... my brother came to me and we both left for home at 10.00 pm of 05/09/2014, and I slept on next morning at 10.00 AM 06/09/2014 and at 12.30 PM 06/09/2014 I rested there during that time one police officer came to me and inquired me and then they carried me to the "glagla's house" where I told truth about the whole incidence. After that I have been arrested by Detroj Police and brought me to Detroj Police Station, at about 4.00 PM 06/09/2014, then they brought me to Ahmedabad and returned me to detroj at 10.30 PM 06/09/2014 to Detroj Police Station. After that I was carried to CHC detroj at 10.53 PM 06/09/2014 for medical examination On medial examination following finds noted :
(1) Identification mark : mole over Index finger of right hand.
(2) Physical examination BP : 120/80 mg P : 72/min RJ/CVI/MRD CMS/MAD (3) General Examination (1) on right Knee abrasion 425 cm in size near to pateya margin.
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R/CR.A/156/2018 JUDGMENT (2) On left knee old scars 5 in numbers, scattered in nature on anterior side of knee joint.
(4) Local examination :
No any visible injury.
(5) Following samples taken for FSL (A) Hard hair (B) Saliva swab (C) Blood (D) Pubic hair (E) Semen (F) Nails Intercourse was tried in lying down position (history given by accused himself).
11. In the deposition of this witness, reference is made to the injuries received by the appellant on his knees, in the form of aberrations. In the cross examination, the suggestion put by the defence of this witness that the medical case history and the medical certificate given by this witness at the behest of the appellant was denied. No other questions were posed to this witness by the defence. No question was posed with regard to the medical history in the MLC Certificate at Exhibit 21, was opposed by the defence.
12. From the record and proceedings, the arrest panchnama at Exhibit 32, the scene of offence panchnama at Exhibit 34 has been proved by examining Page 11 of 18 R/CR.A/156/2018 JUDGMENT the panch witnesses who have supported the case of the prosecution. In the cross examination, nothing is surfacing on record so as to doubt their evidence as also the scene of offence and recovery of the blood stains from the clothes of the appellant.
13. The age of the victim was established vide Exhibit 39, i.e. the school leaving certificate of the victim where the date of birth of the victim was established at 8 years. The prosecution has thereafter examined one - Amrutji Manaji at PW-10 at Exhibit 37, who has deposed that on the day of the incident, the appellant had travelled to this witness in his auto-rickshaw and at around 5.00 pm, after returning to the Village Detroj (place of incident), this witness had left the appellant. The prosecution has thereafter, examined the Scientific Officer - Ms. Manishaben Miteshkumar Patel at Exhibit 53. The FSL Reports at Exhibits 45 and 46 if perused would indicate that from the vaginal swab of the victim, the presence of the blood and semen was deducted. The conclusion and observations, drawn are under :-
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"OBSERVATIONS :
From the above results, it is observed that,
1. Male DNA (Y-STR) profiles were obtained from Exihibit: 1:Swab (Source of Tejalben J. Devipujak) and Exhibit : 2 : Blood Sample (Source of Shaileshji Shakraji Thakor)
2. Autosomal DNA Profiles were obtained from Exhibit: 1: Swab-MF & FF (Source of Tejalben J. Devipujak) and Exhibit : 2: Blood sample (Source of Shaileshji Shakraji Thakor) Conclusion :
1. Male DNA (Y-STR) profile obtained from Exhibit-2: Blood Sample (source of Shaileshji Shakraji Thakor) matches with male DNA (Y-
STR) profile obtained from Exhibit-1: Swab- MF (Source of Tejalben J. Devipujak).
2. Considering the results of Y-STR DNA analysis, Exhibit-2: Blood Sample (source of Shaileshji Shakraji Thakor) is included as source of male fraction present in Exhibit-1 :
Swab (Source of Tejalben J. Devipujak)."
14. This in the opinion of the Court is a conclusive proof of rape and establishes the offence against the appellant beyond reasonable doubt. Reliance placed by learned Advocate for the appellant in the case of Indra Dalal v. State of Haryana (supra) to substantiate the argument that the confession made before the Doctor while in police custody cannot be considered to be an inadmissible piece of evidence. In Paragraph 17, the Apex Court has held as under :-
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R/CR.A/156/2018 JUDGMENT "17. The word "confession" has no where been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible."
15. In this judgment, the Apex Court was considered the issue of incriminating evidence, which appeared as a confessional statement during recovery of the scooter from the house of the appellant. The Apex Court was considering the issue as to whether the conviction can be sustained on the basis of such statement. In that case, not only the confessions were made to the police officer but such confessional statements were made by the appellants after their arrest and while they were in police custody. In the instant case, a perusal of the impugned judgment would indicate that the medical Page 14 of 18 R/CR.A/156/2018 JUDGMENT history recorded by the Doctor, who examined the appellant is not the sole basis on which the conviction is based. It is one of the circumstances, which strengthens and supports the clinching evidence which is scientific and proved beyond reasonable doubt, i.e. DNA Report and FSL Reports.
16. Learned Advocate for the appellant has relied upon the decision in the case of Anand Pasi (supra) to support his contention that the DNA Report cannot be read as a evidence, unless it is proved according to the provisions of the Evidence Act. The Single Judge of the Allahabad High Court in the case of Anand Pasi (supra) in Paragraph 10 has observed as under :-
10. In the instant case the learned Trial court without addressing himself to the core question about the admissibility of the DNA report without its having been proved according to law has illegally stepped forward to put the same in additional statement of the revisionist u/s. 313 Cr.P.C. Thus, the learned trial Court has exceeded its jurisdiction in passing the impugned order. The DNA report in question could be put to the revisionist in his additional statement u/s. 313 Cr.P.C.
if its genuineness is admitted by the defence or it is duly proved as per the provisions of law by examining the concerned expert. The trial Court can exercise its jurisdiction u/S. Page 15 of 18 R/CR.A/156/2018 JUDGMENT 311 Cr.P.C. to summon the expert, if any such application is moved by the prosecution."
17. Thus, as noted above, the learned Single Judge of Allahabad High Court has taken into consideration the fact that the DNA Report had surfaced on the evidence, subsequent to the trial and recording of the statement under Section 313 of the Code. The issue where no question with regard to the DNA Report was put to the accused under Section 313 of the Code and later on, an additional statement under Section 313 of the Code was prepared and produced, wherein the DNA Report was referred to when the same was produced on record and exhibited. The facts of this case are far different where the DNA and FSL Reports were brought on record and exhibited.
18. Insofar as the submission made on behalf of the appellant that the First Information Report did not disclose the name of the appellant as an accused, though at the time of preparing of the panchnama, the appellant was very much present and that the informant was aware of the name of the appellant, in this regard, it is pertinent to observe that the perpetrator of the crime Page 16 of 18 R/CR.A/156/2018 JUDGMENT was not known at the time of the registering of the First Information Report and it was during the course of the investigation, the same was revealed. This aspect is evident from the evidence of the Investigating Officer - PW11 at Exhibit 38, who has categorically deposed that it was during the course of investigation, he received the information of the appellant having committed the offences. In view of the aforesaid, no discrepancy can be found on the basis of the submission of the name of the appellant not being reflected in the First Information Report from the beginning.
19. Having gone through the oral as well as the documentary evidence on the record of this case, this Court is in agreement with the view taken by the Sessions Court. Nothing has appeared on record to conclude that the approach of the Sessions Court is vitiated by any illegality or that the decision is perverse or that the Sessions Court has ignored any material evidence while recording the conviction. The findings arrived at by the Sessions Court and the reasonings recorded for conviction are justified in view of the evidence on record and hence, no case is made out to entertain this Appeal.
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20. This Appeal deserves to be dismissed and is hereby, dismissed. The conviction and sentence of the appellant, recorded in the impugned judgment and order dated 03.08.2017 passed by the 2nd Additional District and Special POCSO Judge, Ahmedabad (Rural) in Special POCSO Case No.6/2016 is confirmed. Record and proceedings be sent to the concerned Trial Court forthwith.
Sd/-
(M.R. SHAH, J) Sd/-
(A.Y. KOGJE, J) Caroline Page 18 of 18