Gujarat High Court
Lakhabhai Vanabhai Solanki vs State Of ... on 9 September, 2017
Author: N.V.Anjaria
Bench: Anant S. Dave, N.V.Anjaria
R/CR.A/855/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 855 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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LAKHABHAI VANABHAI SOLANKI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR PV PATADIYA, ADVOCATE for the Appellant(s) No. 1
MR RUTVIJ OZA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
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Date : 09/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.V.ANJARIA) This appeal is directed against judgment and order of learned Additional Sessions Judge, Gondal, dated 31st January, 2013, whereby the appellant herein came to be convicted for the offence under Section 376 of the Indian Penal Code, 1860 and sentencing him to undergo rigorous life imprisonment and further to pay the find of Rs.25,000/- and in the event of non- payment of fine, to undergo further imprisonment for three months. Out of the fine amount, Rs.20,000/- was ordered to be paid to the victim. He was acquitted of the offence under Section 506(2), IPC.
2. The complainant was the victim herself. The prosecution case revealed as per the complaint (Exh.17) was that the complainant had been staying with his aunt and uncle, that her mother had died and father had gone away somewhere. On 04th December, 2011 at about 10.00 p.m., the aunt of the complainant and her sister-in-law had gone to relative's house. The complainant was alone. At that time, the uncle of the complainant, appellant - accused, came inside the room of the complainant, pushed her to the floor and started removing clothes of the complainant. The appellant threatened her that if she would not allow to remove her clothes. It was stated that thereafter the appellant also removed his pant and committed crime by overpowering the complainant. It was stated that by the time the appellant was going back after Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Oct 01 17:35:23 IST 2017 R/CR.A/855/2013 JUDGMENT putting on his pant, anut Bhavnaben and sister-in-law Sangitaben arrived, to whom the victim complainant narrated the story about sexual act committed by the appellant. The complainant was taken in 108 ambulance to the Government Hospital at Gondal.
3. The complaint (Exh.17) was registered at Gondal Police Station at C.R. No.72 of 2011 for the offences under Sections 363, 506(2), IPC. and was handed over for investigation. The statements of the witnesses were recorded, inquest panchnama was done, the victim and the accused were sent for medical examination. FSL report was received. When the chargesheet was filed, offences under Section 376 and 506(2) were mentioned. As the offence was tirable by the Sessions Court, after submission of chargesheet before the Court of learned JMFC, Gondal, the same was committed to the Court of Sessions under Section 209 of the Cr.P.C.
3.1 In order to prove the case, prosecution examined 12 witnesses whom included panch witnesses (Exh.8, 10, 11, 13 and 14). The victim deposed at Exh.16 and Bhavnaben (PW 7) who was aunt, deposed at Exh.18. Champaben Laljibhai (PW 8) deposed at Exh.20, Dr.Bhavesh (PW 9) who first examined the victim deposed at Exh.21. Similarly, Dr.Chandravali (PW 10), Medical Officer, Civil Hospital, Amreli, deposed at Exh.25, Aniruddhsinh S. Jadeja (PW 11) deposed at Exh.30 whereas investigating officer Ramjibhai Laljibhai (PW 12) gave his evidence at Exh.35.
3.2 The documentary evidence relied on including
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Panchnama of the place (Exh.9), panchnama of recovery of clothes of victim (Exh.12), arrest panchnama (Exh.15), complaint, medical certificates of the victim (Exh.22 and 26), medical certificate of the accused (Exh.28) and further, Forensic Science Laboratory Receipt (Exh.38) for the muddamal sent (Exh.37) and the report of the F.S.L. (Exh.39). At the end of the trial, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded.
3.3 The trial ended with the conviction and sentence of the appellant - accused as above.
4. Learned advocate for the petitioner Mr.P.V. Patadia, questioning the sustainability in eye of law of the impugned judgment of conviction and order of sentence, submitted that the evidence of the witnesses with regard to the incident was marred by contradictions. He submitted that witnesses including the Panchas had turned hostile and therefore, the recovery of muddamal and other incidental aspects could not have said to have been proved. He submitted that learned Sessions Judge ought to have granted benefit of doubt to the petitioner. It was submitted that the case of the prosecution was not reliable and suffered from infirmities and in that context, the Court committed error on relying of the evidence of the victim. It was sought to be highlighted that the victim was indicated to be engaged in the liquor business, that the appellant - uncle was knowing the said fact and further knew about the activities of Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Oct 01 17:35:23 IST 2017 R/CR.A/855/2013 JUDGMENT purchase and sell of liquor, because of which the victim filed false complaint to implicate him. It was submitted that evidence could not be said to be suggesting that the offence under Section 376 was committed in asmuch as, there was no evidence of force exerted by the accused, nor were any injury marks on the body or on the private part of the victim.
4.1 On the other hand learned Additional Public Prosecutor Mr.Rutivj Oza submitted that the medical examination and FSL evidence were the clear evidence which established the commission of offence by the appellant. It was submitted that whatever contradictions sought to be pointed out in the evidence, were all minor in nature, insignificant to lead the case of the defence anywhere and thus could not be a ground to urge an acquittal.
5. As far as the occurrence of the offence is concerned, the evidence of the prosecutrix (PW 6, Exh.16) stands in forefront which fortified the prosecution case. PW 6 was deposing about one year after the date of incident and could vividly describe the happenings on the fateful day. She stated that at around 09.00 p.m. on that day, her aunt Bhavnaben (PW
7) and sister-in-law Sangitaben had gone to the house of her grandmother Champaben (PW 8); she was alone in the house and in the room of the aunt; the neighbouring person who happened to be her uncle - the present appellant, came inside and pushed her, because of which she fell down. He unclothed himself by removing the pant and overpowering her perform sexual Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Oct 01 17:35:23 IST 2017 R/CR.A/855/2013 JUDGMENT act on her. She stated that she had only one hand and thus being multilated, could not resist forcible act on part of the appellant. According to the prosecutrix, the appellant threatened her for life. Reading the deposition with the contents of the complaint (Exh.17), it would be seen that versions in both were consistent enough to be believed so as to establish happening of the incident. Nothing material could be brought in contradiction to the main theory in the cross-examination of PW 6, where she denied the proposition that the appellant had come with a weapon and committed a crime, which was not a prosecution case also.
5.1 The theory put-forth by the prosecutrix in her evidence (Exh.16) stood duly supported from the evidence of aunt Bhavnaben (PW 7, Exh.18). PW 7 narrated the story in the same way to further state in cross-examination that when she came back from the house of Champaben, the appellant was spotted outside the Deli (main door of house) and found that inside the house the victim was in her (aunt's) room and was weeping. It was stated by PW 7 that PW 6 told about the incident, whereafter they went to the house of maternal grandmother and thereafter to the police station to file the complaint. In the evidence of PW 7 as well as in the evidence of Champaben (PW 8, Exh.20), it was uniformly stated about the incident and further that one Manishbhai had telephoned 108 ambulance in which they all took the victim to the Government Hospital.
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5.2 The evidence of PW 6 (Exh.16), PW 7 (Exh.18)
and PW 8 (Exh.20), when simultaneously read, did
confirm the evidence by virtue of their consistency in reporting the facts about the occurrence and post- occurrence events. Viewed from the settled principles of law, the evidence of the prosecutirx (PW 6, Exh.16) was strong and cogent enough to accept the happening of the incident of commission of offence. Though the Panch witnesses were declared hostile, a close reading in law of their evidence could suggest invariably about their accepting that they had prepared the Panchnama. This element of truth from the Panch evidence goes to support the occurrence of the incident.
5.3 It is trite principle that evidence of the victim could even be solely relied upon to come to the conclusion about proof of the incident and such evidence when cogent and convincing, could also be the basis for the conviction of the offender. The evidence in the present case is stronger, in asmuch as not only the evidence of the prosecutrix is credible and cogent, it finds corroboration and confirmation from the other evidence highlighted above.
5.4 The evidence of witnesses PW 6, PW 7 and PW 8, reflected on the aspect that the victim was doing business in liquor. PW 6 having initially denied about the involvement of the victim in the business, she stated that the appellant had taunted her on that count. PW 8 Champaben however denied all the suggestions on this score. Though the case of Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Oct 01 17:35:23 IST 2017 R/CR.A/855/2013 JUDGMENT prosecutrix's having been engaged in some liquor business surfaces, in the entire set of evidence on record, it could not be viewed to be propounding as a link to the offence. Nowhere in the evidence, there came even a shade suggestion that, the said aspect was the cause and the commission of crime by the appellant was the result.
5.5 The prosecution failed to establish that since the appellant - uncle knew about the liquor business of the victim, the victim implicated him. It is the fact uncontroverted in the evidence that the victim was physically challenged person having only one hand, who was in an established incident, overpowered by the force of the appellant who committed offence on her. The contention on behalf of the appellant about false or improper implication of the appellant on this score, was meritless without any acceptable supportive evidentiary base therefor.
6. Adverting now to the medical evidence, Dr.Bhavesh Vora (PW 9, Exh.21) who was on duty at the Government Hospital where the prosecutirx was taken to examination deposed inter alia that as per the opinion of the Radiologist, the victim was major of the age about 21 years or between 17 and 21 years and that her medical examination showed normal result. She did not have any mark of commission of force on her body except bruises on the backside which were old. According to medical officer, there was no injury on her vaginal so as to indicate the force but her hymen were found to have been ruptured. The medical history Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Oct 01 17:35:23 IST 2017 R/CR.A/855/2013 JUDGMENT given by the prosecutirx before PW 9 was that on the date of incident at around 09.00 p.m. to 10.00 p.m. her uncle overpowered her and against her will, by giving blow on the backside of the leg, forcibly maintained physical relationship to commit crime. Another medical officer Dr.Chandravali (PW 10, Exh.25) examined the appellant. According to her opinion, possibility of intercourse committed was not ruled out.
7. With the above set of ocular evidence and the medical evidence, the evidence in the nature of FSL report (Exh.38 and 39) which contained the serological examination, were decisive. The clothes of the accused and the victim, which recovered by the prosecution came to be sent to the Forensic Science Laboratory. The serological report indicated the presence of blood with blood group 'O' which was found both on the private cloth of the appellant as well as on the Chorni of the victim. It was found mixed with vaginal swab on the clothes of the both. Thus there was presence of matching blood group, which was along with the vaginal swab. This evidence is completely a gap-filling evidence finally establishing the commission of offence.
8. The submission about the evidence in the contradictions entitling the appellant to be acquitted, could hardly be countenanced. It was sought to be submitted that at one place the time of the incident was mentioned as 10.00 p.m. whereas elsewhere in the evidence it was shown to be around 09.00 p.m.;
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in respect of the manner of removal of clothes by the accused also some discrepancies were sought to be made out and it was also by submitting that when PW 7 returned the home, appellant was found to be present outside the Deli and not inside the room. For establishing the incident and crime, if broad facts are cogently proved, minor inconsistency cannot be projected as major contradictions. Discrepancies of such nature in the evidence of witnesses is natural as the witnesses cannot be expected to state the story with mathematical precision. The deposition with such exactitude and precision can be viewed only as a tutored one. It is natural for human person to err on negligibles while recollecting the incident and giving evidence in court of law. In any view, such minor discrepancies cannot tilt the balance of the rest of the evidence which is unshaken in nature.
9. From the evidence it was shown that victim was about 16 years of age, she did not have one hand and was physically challenged in that way. The appellant was her uncle residing in the neighbourhood who overpowered the victim to commit the crime under Section 376, IPC. The victim was physically handicapped and thus in helpless state and the person committing crime was uncle, in that way holding position of dominance. The FSL report and the serological findings could finally nail the commission of crime by establishing link in the background of cogent and believable evidence of the prosecutrix supported by other evidence which confirmed the incident and the involvement of the appellant.
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10. Eventhough it was alternatively submitted on behalf of the learned advocate for the appellant that Court may consider the aspect of quantum of sentence, in our considered view, when in the entire incident of commission of crime, the above outweighing aspects are seen, and looking to the helpless position of the victim under which the crime was committed on her, and the total evidence operating to establish the serious crime, Court was not persuaded that any mitigating factor existed enabling to view the heinous crime with any leniency even for the quantum of sentence.
11. For all the aforesaid reasons and discussion, the impugned judgment ad order convicting and sentencing the appellant warranted no interference. The impugned judgment and order by learned Additional Sessions Judge, Gondal, dated 31st January, 2013 sentencing the appellant to undergo rigorous life imprisonment and further to pay find of Rs.25,000/- and in the event of non-payment of fine, to undergo further imprisonment for three months is hereby upheld. The Appeal fails and stands dismissed.
Record & Proceedings be sent back to the Court concerned forthwith.
(ANANT S.DAVE, J.) (N.V.ANJARIA, J.) Anup Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Oct 01 17:35:23 IST 2017