Gujarat High Court
Usmangani Alias Husen Nizam Mahmad ... vs State Of Gujarat on 24 August, 2018
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/309/2002 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL No. 309 of 2002
FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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USMANGANI ALIAS HUSEN NIZAM MAHMAD PATEL
Versus
STATE OF GUJARAT
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Appearance :
Mr NK MAJMUDAR, Advocate for the PETITIONER(s) No. 1
Mr RUTVIJ OZA, APP for the RESPONDENT(s) No. 1
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CORAM:Â HONOURABLE Mr. JUSTICE B.N. KARIA
th
24 August 2018
CAV JUDGMENT
The judgment and order dated 5th January 2002 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No. 210 of 1998 convicting the appellant-original accused for an offence punishable under Section 376 of the Page 1 of 28 R/CR.A/309/2002 CAV JUDGMENT Indian Penal Code ["IPC" for brevity] as also sentencing him to suffer rigorous imprisonment for a term of seven years and to pay fine of Rs. 500/=; and in default thereof, to undergo further simple imprisonment for a month, is assailed in this Appeal preferred under Section 374 [2] of the Code of Criminal Procedure, 1973 ["CrPC" for brevity].
Facts emerging from the available record; in nutshell, read thus-
On 6th July 1998, witnesses-Police Constable Yakub Ali Patel and another Police Constable named Rameshbhai Parshottam, when were on patrolling duty near Bharuch- Dahej Bypass, they had on their arriving near Dahej Bypass at about half past five O'clock in the evening, noticed that one rickshaw, bearing registration No. GJ-16-T-2377 was parked on the eastern side of the road. Therefore, both the police constables went closer and saw that the rickshaw driver [accused of the present appeal] was committing rape on a beggar and mentally retarded lady. Both constables arrested the accused and the said lady and upon asking, the accused had stated his name and address, but as the said lady [which was looking like a beggar] had not replied as she was mentally Page 2 of 28 R/CR.A/309/2002 CAV JUDGMENT retarded and was not in condition to reply and therefore, both these constables brought the accused and the said lady at Bharuch LCB Police Station and produced them before Sub- Inspector Ukkadbhai Kalabhai and stated him about the incident.
As the said lady was not in condition to state anything about herself, on the basis of the facts declared by police constable Yakub Alibhai Patel, Police Sub-Inspector Ukkadbhai had submitted a written report to the Police Inspector, Bharuch City 'B' Division about the incident and on the basis of the said report, Bharuch City 'B' Division Police registered an offence; went to the spot with Police Constable Yakubbhai and drew panchnama of the scene of offence and sent the victim lady and the accused for physical examination at Civil Hospital, Bharuch. Their clothes and samples were collected after their physical examination and thereafter, statements of the witnesses were recorded. The accused was arrested for the said offence and muddamal were sent to F.S.L. Upon receipt of medical certificate and report from F.S.L. and on finding the evidence against the accused of committing rape on mentally retarded lady, Bharcuh City 'B' Division Police filed a Page 3 of 28 R/CR.A/309/2002 CAV JUDGMENT chargesheet in the court of Chief Judicial Magistrate Court at Bharuch against the accused for the offence punishable under Section 376 IPC.
As the case was triable by the Sessions Court, Bharuch, therefore, as per Section 209 CrPC, the learned Magistrate committed the case to the Court of Sessions at Bharuch.
Upon production of the accused and ascertaining from him as to whether he had received copy of the case papers, he replied in the affirmative and thereafter, under section 376 IPC, charge was framed against the accused which was read over and explained to him, wherein he did not plead guilty and claimed to be tried. Accordingly, the prosecution laid evidence. On completion of the said evidence, further statement of the accused person was recorded under Section 313 CrPC, wherein the accused denied the allegations and came to be tried by the Court below, resulting into his conviction for an offence punishable under Section 376 IPC and was sentenced to suffer rigorous imprisonment and pay fine; as aforestated.
The aggrieved appellant-accused is before this Court in an Appeal preferred under Section 374 [2] CrPC. Page 4 of 28 R/CR.A/309/2002 CAV JUDGMENT
Heard learned advocates appearing for the respective parties at length.
Learned advocate Shri NK Majmudar appearing for the appellant vehemently assailed the impugned judgment and order dated 5th January 2002 passed by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 210 of 1998 contending the same to be contrary to law and against the express provisions of the statute. Counsel for the appellant contended that the learned trial Judge has failed to appreciate the evidence available on the record and thereby erred in convicting the appellant.
Counsel for the appellant submitted that the Court below has failed to appreciate the ratio laid down in the judgment reported in [1995] CCR 240 [DB], in view of the fact that there were material infirmities in the evidence, which ought to have been properly considered by the trial Court to avoid miscarriage of justice in the case on hands.
Counsel for the appellant drew attention of this Court to the fact that the offence alleged against the appellant fell within the jurisdictional limits of "B" Division Police Station at Bharuch, and whereas, the appellant came to be arraigned by Page 5 of 28 R/CR.A/309/2002 CAV JUDGMENT the sleuths of LCB instead of "B" Division. He added that the trial Judge has failed to appreciate the defence of the accused that the said Police personnel who effect arrest of the appellant as an accused in the crime alleged was a notorious and head- strong police constable in LCB and was habituated in harassing innocent citizens by misusing his official position as a constable.
Counsel for the appellant also drew attention of this Court to the fact that the trial Court has failed to appreciate the newspaper article produced as an evidence wherein it has been stated that the said police constable Yakubhia had demanded illegal gratification of Rs. 2.5 lakhs, failing which the person was threatened to face dire consequences. Counsel added that the trial Judge ought to have appreciated that the said Police constable has admitted this position in so far as newspaper cutting was concerned and also that of directions issued by the learned Civil Judge, restraining the said Police constable from illegally entering into the house of the said plaintiff.
Learned advocate for the appellant urged that there was sufficient evidence on record to show that the victim [prosecutrix] was already present in the Police Station and Page 6 of 28 R/CR.A/309/2002 CAV JUDGMENT taking undue advantage of her being of unsound mind, a false case was created against the appellant.
On the merits of the case, learned advocate for the appellant contended that the learned trial Judge has materially erred in observing that had there being real enmity between the Police Constable Yakubbhai and the appellant-accused, in such a situation, on seeing them in a compromising position, he would have rushed towards them and would have asked them to wear the clothes and then brought them to the Police Station. On the contrary, the trial Judge has tried to distinguish the deposition of witness-Yakubbhai by observing that the said witness has in his evidence deposed that on seeing him, the accused and the victim immediately got separated and put on their clothes. This story, according to the learned advocate for the appellant, does not sound probable in light of the fact that there was no earthly reason for the said Police Constable to take them to LCB rather than to "B" Division Police Station, Bharuch.
Counsel for the appellant vehemently urged that the said Police officer had grudge against the appellant, and therefore, taking an opportunity of presence of a lady being of unsound Page 7 of 28 R/CR.A/309/2002 CAV JUDGMENT mind in the Police Station, he managed to involve the appellant falsely in a case of rape on the said unsound lady.
Counsel for the appellant reiterated that the trial Judge has failed to appreciate that there was ample evidence available to show that the said Police Constable was a head strong person and particularly, the fact that a suit was pending against him for extortion of money, and therefore, in view of his being a history sheeter and the prosecution having solely based its entire case solely on the basis of his version, ought not to have believed his version.
Stretching ahead his arguments, counsel for the appellant pointed out that the Court below has failed to properly appreciate the evidence of defence witness Bhikhabhai Kalidas Parmar [Exh.24] who clearly deposed that when he had gone to the concerned Police Station at about 3:00 O'Clock, the said lady who happens to be sister-in-law of his brother was already present at the Police Station. Therefore, the trial Court ought to have appreciated the testimony of this defence witness who clearly deposed of presence of victim in the Police Station and that of taking undue advantage of her being of unsound mind and not able to properly speak, so as to rope the Page 8 of 28 R/CR.A/309/2002 CAV JUDGMENT appellant in a false case.
Counsel for the appellant also pointed out to this Court that PW-Rajubhai Mohanbhai [Exh. 11] and Jigneshbhai Vasantbhai [Exh. 13] have not supported the prosecution case, despite this fact their testimony has been considered.
Likewise, PW-Sureshbhai Harkishandas [Exh. 21] and Prafulbhai Dahyabhai [Exh. 23] gave no support to the prosecution case by depicting that their signatures were obtained subsequently on a already kept ready panchnama and they have denied of their having knowledge about the incident. Therefore, according to the learned counsel for the appellant, when there was no eye witness to the alleged incident and the entire case rests on circumstantial evidence, the trial Court ought to have appreciated all the attending circumstances, could have taken utmost care and caution while recording conviction of the appellant herein, when the entire chain of evidences was incomplete.
On the medico legal aspect of the matter, counsel for the appellant submitted that the medical evidence has also not extended support to the prosecution case. According to the learned counsel, PW-Dr. Ravishanker R Shah has endorsed the Page 9 of 28 R/CR.A/309/2002 CAV JUDGMENT suggestion put on behalf of the appellant that had there been sexual intercourse, in that case, spermatozoa would have been present in the private parts of the victim. This witness testifies of there being no injuries [external or internal] or nearby the vagina of the victim. This witness opined that there were no marks of semen on the clothes of the accused, and therefore, in light of these facts, it was quite unsafe to record conviction of the appellant barely on suspicion.
Drawing attention of this Court to the infirmities in the samples sent to FSL vide Exh. 19, counsel for the appellant urged that the trial Court ought to have believed the say of the accused that he was compelled to undergo masturbation and the said packet containing the clothes of the accused was opened by breaking open the seals put up by the Doctor and then his semen was sprayed on the said clothes.
Concluding his arguments, counsel for the appellant urged this Court to quash and set aside the impugned judgment and order of sentence dated 5th January 2002 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No. 210 of 1998 and thereby acquit the appellant of the charge levelled against him.
Page 10 of 28 R/CR.A/309/2002 CAV JUDGMENT
Per contra, learned APP Mr. Rutvij Oza appearing for the respondent-State has vehemently opposed the appeal filed by the appellant-convict contending that the trial Court has rightly considered the evidence laid by the prosecution and thereby convicted the accused. That, the prosecution has clearly proved its case beyond all reasonable doubts. That, PW- 4 Yakubbhai Alibhai Patel is an eye witness to the incident. He has clearly deposed before the trial Court of his having witnessed the rape committed by the accused over victim. That, PW-5 Dr. Ravishanker Rajendrabhai Shah in his testimony at Exh. 15 has also supported the prosecution case before the Court below. This witness has also issued a Certificate dated 10th July 1998 which has been duly exhibited by the trial Court vide Exh. 17. That, the incident took place on 6th July 1998, and on the very same day, prosecutrix was examined by Dr. Ravishanker [PW-5] and a certificate of examination came to be issued by him, which is duly exhibited at Exh. 18. That, FSL report supports prosecution case [which is also produced on record at Exh. 10]. That, PW-6 Keshavbhai Dhanjibhai, who is brother of the victim was examined by the prosecution. He had lent requisite support to the prosecution case. That, Page 11 of 28 R/CR.A/309/2002 CAV JUDGMENT defence witness Bhikhabhai was examined at Exh. 39, even this witness does not nullify the prosecution version of rape. That, PW-4 Yakub Alibhai Patel has clearly witnessed the incident of rape having been committed by the appellant [as an accused] over the prosecutrix. He drew attention of this Court to the samples drawn by the Medical Officer when the prosecutrix was brought before him for medical examination, and these have been elaborately explained in column no. 11 of the Certificate dated 10th July 1998 [Exh. 17].
Learned APP emphasized that the Pathological examination of the victim shows presence of spermatozoa in the vaginal part of the prosecutrix. That, even in the report submitted by FSL, spermatozoa were found. It is also found from the serological report that on jacket as well as underwear of the accused, semen were found. That, PW-6 Keshavbhai Dhanjibhai has also stated that the prosecutrix was of unsound mind and was unable to speak anything clearly, and therefore, she was not examined before the trial Court. That, deposition of this witness was never challenged by the accused side in the cross examination. That, Investigating Officer PW-9 Prakashbhai Buddhprasad Kanojiya has also supported the Page 12 of 28 R/CR.A/309/2002 CAV JUDGMENT prosecution case. That, PW-5 Dr. Ravishanker is an independent witness having no axe to grind against the appellant-accused nor there is any animosity with the accused, and therefore, his evidence is required to be considered. That, blood of the victim was also found on the clothes of the accused. That, as per sample no. 3, blood group of the victim was "O" while the blood group of the appellant is "A" . That, penetration would be sufficient to involve the accused in an offence punishable under section 375 IPC. That, the civil suit was filed by a third party and it has no relevance with the present incident. That, another offence was also allegedly reported against the accused under Section 376 IPC in the year 2014. That, the victim-prosecutrix had expired on 11th September 2000, and therefore, prosecution was not in a position to examine her; even otherwise it would have been thought fit by the trial Court then. That, no leniency can be shown to the present appellant, as the prosecution has clearly been able to prove its case against the appellant. Hence, it was requested by learned APP to dismiss the present appeal and thereby confirm the order of conviction and sentence recorded by the Court below.
Page 13 of 28 R/CR.A/309/2002 CAV JUDGMENT
Having heard learned advocates for the respective sides and so also on perusal of the record placed before the Court, it appears that as per the charge framed against the appellant- accused, on 6th July 1998 at about 5:30 pm on Bharuch-Dahej Bypass on the eastern side of the road, accused alongwith an auto-rickshaw, bearing registration no. GJ-16-T-2377 was found committing rape with the prosecutrix [a lady of unsound mind] against her will and by applying force and hence, committed an offence punishable under Section 376 IPC.
It appears from the record that the trial Court has mainly relied upon the deposition of PW-4 Yakub A Patel, who was allegedly eye witness to the crime; deposition of Dr. Ravishanker Rajendra Shah [PW5 : Exh. 20] who was then serving as a Medical Officer at Bharuch Civil Hospital and had examined the prosecutrix on 6th July 1998 at 8:40 pm as well as the accused. Initial report of this offence was made by PW-4 Yakub A Patel, who was serving in LCB at the relevant time. As per his statement before the Court, on 6th July 1998, he himself and his colleague Police Constable one Shri Rameshbhai Patel at about 17:00 hours were on patrolling duty and around Page 14 of 28 R/CR.A/309/2002 CAV JUDGMENT 17:00 hours they found one auto-rickshaw was lying on the road side of bypass, and hence, they went at the place and found nobody inside the vehicle bearing registration no. GJ- 16-T-2377 and when they looked around, at a distance of about 15 to 20 feet in the throne bushes, two human being were indulged in intercourse. Seeing this witness, the male person immediately got up and on inquiry, he revealed his name as Usmangani @ Husain Nizam Mahmad Patel, resident of Dehgam and despite repeatedly inquiring the lady, she did not inform about her status as she was unable to speak anything. She was standing still with a bowl in her hands and at the first instance, she was found to be of unsound mind. This witness, as per his deposition before the trial Court, took them in the auto-rickshaw to LCB office and informed one Ukkodbhai, Police Sub-Inspector of LCB. A report was prepared by him and PW-4 Yakubbhai was requested to submit it before "B" Division Police Station, and therefore, alongwith the said report, this witness and his colleague-Police Constable Rameshbhai alongwith rickshaw and these two persons went to "B" Division Police Station and both of them were produced there, where statement of this witness was Page 15 of 28 R/CR.A/309/2002 CAV JUDGMENT recorded. Place of the offence was shown by this witness and panchnama of the scene of offence was prepared in his presence, which eventually these panchas refuted and therefore, the trial Court declared them hostile.
From the record, it appears that this witness has eye witnessed the offence and brought the culprit to book by bringing him to LCB Office at Bharuch. Except this witness, there is nothing on the record suggesting presence of any independent witness nearby the place of the offence.
It is pertinent to note that the prosecution case is based on the fact that the rape was committed on an unsound lady who was even not able to speak anything. Even her name could not be recorded by the Investigating Officer during the course of investigation nor she was examined as a witness before the trial Court. PW-Bhikhabhai in his testimony at Exh. 34 has admitted that the prosecutrix had passed away before her entering into the witness box. Under the circumstances, she was not examined before the trial Court. Therefore, re-analysis of the testimony of PW-4 Yakub A Patel becomes vitally important. This witness has admitted that there was a fix timings for patrolling. He also admits that a register of Page 16 of 28 R/CR.A/309/2002 CAV JUDGMENT personnels engaged in the Police patrolling and the staff working in LCB Office was duly maintained. He has stated that after completing the patrolling of the area, entry need to be made in the records. Officer on patrolling duty is duty bound to inform higher ups in the case of any accident/incident noticed while on duty.
It appears from the record that no such register as suggested was ever produced on the record of this case nor any entry of the staff members who had performed the task of patrolling in the area on the given day has been brought on the record of this matter.
From the cross examination of this witness, it appears that on the day of the incident, he himself and his colleague Police Constable Rameshbhai went on a motor cycle of yet another Police Constable named Ranjit Singh, who was on duty in the office of LCB on 6th July 1998. He has admitted that the accused was straight away taken to LCB Office instead of "B" Division Police Station. He also accompanied the accused to Civil Hospital.
A copy of news article from "Sandesh" newspaper was shown to this witness, whereunder news were published Page 17 of 28 R/CR.A/309/2002 CAV JUDGMENT demanding a sum of Rs. 2.5 lakhs by this witness from one person who had come from South Africa with a threat that if the said sum is not given, this witness would see that he is sent behind the bars. This witness has admitted that the said person had instituted a Civil Suit No. 255 of 1998 before the Civil Court wherein injunction against this witness and others has been granted restraining them from forcibly entering into the house of the plaintiff.
Of course, PW-4 Yakub has denied in his cross examination that there was any accident of his motor cycle with an auto-rickshaw of the accused, or demand of any bribe in settlement of the accidental loss. However, the fact remains that the accused had in clear terms stated about an accident his auto-rickshaw had with the motor cycle of PW-4 Yakub, wherein, this witness had threatened to pay him bribe or else, to face the dire consequences, as the witness was serving in LCB office and known as "Yakub". It also appears that the statement of Police Constable Rameshbhai was also recorded in B-Division Police Station. However, he was not examined by the prosecution as a witness before the trial Court. This is a material defeat on the part of prosecution which failed to Page 18 of 28 R/CR.A/309/2002 CAV JUDGMENT examine the material witness-Police Constable Rameshbhai, who accompanied PW-4 and allegedly was present at the time of the incident and even no explanation comes on the record as to his non examination before the trial Court, though his statement was earlier recorded by the Police.
So far as unsound mind of the prosecutrix is concerned, there is nothing on the record to suggest that there was anything on paper in the form of opinion of an Expert declaring her state of mind. On the bare statement of PW-6 Keshavbhai Dhanjibhai [Exh. 20]; PW-4 Yakubbhai A Patel and Dr. Ravishanker, prosecution has accepted the theory of unsound mind of the prosecutrix without there being any scientific evidence.
PW-6 Keshavbhai Dhanjibhai is the real brother of the prosecutrix. As per his statement, prosecutrix was married and after her marriage for sometime, she was divorced by her husband due to her unsound mind. As per his statement, she was not in a position to speak anything. This witness has no idea of any incident; as reported. He has further stated that due to her unsound mind, his sister had left the house of this witness and therefore, he enquired her whereabouts from his Page 19 of 28 R/CR.A/309/2002 CAV JUDGMENT relatives but to no avail, and therefore, he informed the Police. This witness was informed by one of his relatives staying in Bharuch about seeing his sister in the City, and therefore, he himself alongwith one another relative visited Bharuch and upon inquiry, they came to know about the rape having been committed on a lady of unsound mind. Thereafter, this witness visited the Police Station and took custody of the prosecutrix. This witness has not given any certificate of unsound mind of his sister to the Police, nor the Police has demanded any such certificate from him any time during the course of investigation or thereafter.
Another material witness viz., PW-5 Dr. Ravishanker, who was serving as a Medical Officer in the Civil Hospital at Bharuch in his testimony at Exh. 15 has stated to have examined the prosecutrix in presence of a lady police constable, when she was brought before him. He opined that there were no injuries on her body; except some old leaded tears of hymen. While explaining multiple old tears, this witness has stated that victim might have given birth to a baby child in past. He observed no injury on the private part of the prosecutrix. He opined that the prosecutrix was not in a proper Page 20 of 28 R/CR.A/309/2002 CAV JUDGMENT position to give any reply to the questions put to her. She was forwarded to a Radiologist for examination and as per the opinion of the Radiologist, her age was determined to be more than twenty years then. The Radiological examination was carried out by Dr. Raval. This witness in his testimony has further stated that the prosecutrix was found habitual in making intercourse. Though, Radiologist Shri Raval had performed his task of ascertaining the age of the prosecutrix, however, he was not examined by the prosecution before the trial Court. Not a single injury was found on the body of the prosecutrix, or on her private part, as per the opinion of PW-5 Dr. Ravishanker who examined her on the very day of the incident ie., 6th July 1998. The accused was also examined by this witness. He was found having capacity to indulge into intercourse at the age of 22 years. No marks of injury were found on the traces of the accused; except few blood stains on the underwear, which were due to cutting of his pubic hair. This Doctor has recorded history of the accused. As per the history given, when he was plying his auto rickshaw, one unidentified lady hired his rickshaw and after crossing Dehgam, she alighted from the vehicle and went towards the Page 21 of 28 R/CR.A/309/2002 CAV JUDGMENT bushes and thereafter suddenly made ugly signal towards the accused to lure the accused for sexual intercourse, however, suddenly when the act was going on, police patrolling the area came and took them into custody. This witness has admitted in his cross examination that the clothes of the accused as well as that of the prosecutrix were sealed by himself, but no panchnama was prepared. He has also admitted that there were no marks of any semen on the clothes of the accused and when the accused was brought before him, he was already in police custody.
Further, as per the testimony of PW-5 Dr. Ravishanker, the sample forwarded to FSL for analysis was duly affixed seal of his office. However, when shown the forwarding letter of FSL [Exh. 19], this witness has stated that there were no remarks of the seal of his office. Though, it has been categorically denied by this witness of his having observed any mark of semen on the clothes of the accused and of his having applied the official seal of the clothes which were sent for FSL analysis, yet surprisingly, if we consider the FSL report [Exh. 19], it appears that on the sample no. 1 - Jacket of the accused, semen were found. In a forwarding letter, there is no mention Page 22 of 28 R/CR.A/309/2002 CAV JUDGMENT of application of any seal of the office of Civil Hospital, Bharuch.
Here, deposition of Investigating Officer PW-9 Prakash Buddhiprasad Kanojiya [at Exh. 25] would require re- consideration. This witness in his cross examination in para 6 has admitted that the muddamal articles were forwarded to FSL with a covering letter having seal of the Police Station. After completing the analysis, the FSL report discloses application no seal on the muddamal articles, and therefore, manipulation of the seal of the Hospital; as stated by the Doctor cannot be ruled out because in the forwarding letter issued by FSL, no seal of the office of Civil Hospital is found, or even for that matter, there is no description of the application of seal of any Police Station. There were no mark of any semen on the clothes of the accused, as per the statement of the Doctor who initially examined the accused, and whereas, mark of semen were found on the jacket of the accused; as found from the FSL report [Exh. 19]. This creates serious doubt on the truthfulness of the prosecution story. Statement of the constable who received the muddamal was not recorded by the Investigating Officer nor his name or buckle number is shown on the Page 23 of 28 R/CR.A/309/2002 CAV JUDGMENT record, while forwarding and receiving the report from FSL. Forwarding letter issued by the Police Station authorizing the documents were not produced on the record. No entry was even made by the Investigating Officer regarding Muddamal returned back from FSL to the Police Station.
Reverting to the timing of the offence, it appears from the testimony of defence witness Bhikhabhai Kalidas Parmar [Exh.24], who happens to be relative of the prosecutrix, upon missing the prosecutrix and after certain information about her being traced out, he visited the Vejalpur Police Station at 3:00 pm and on making inquiry, he was informed by the Police Officer that in presence of parents or brother or sister, custody of the prosecutrix would be handed over. There is also some discrepancy in the timing of the alleged offence which is stated to be 5:00 pm; as disclosed by PW-4 Yakub and the visit of this witness at Vejalpur Police Station at 3:00 PM. This also creates serious doubt on the prosecution version. More so, as there were no injuries found on the body of the prosecutrix, she was not examined as a witness under the guise that she was of unsound mind, without any scientific evidence on record. Page 24 of 28 R/CR.A/309/2002 CAV JUDGMENT
Moreover, in a further statement recorded under Section 313 CrPC, the accused stated that while he was returning from Dehgam bypass in his auto-rickshaw, in an road accident with the scooter of Yakub, he stopped and apologized him for the said act, however, the said Yakub Ali Patel abused him and threatened him of dire consequences saying that "he was known as Yakub Jalodwala and was serving in LCB Crime Branch". Since the said accident annoyed the Police Constable Yakub, he arraigned him in a false case of rape in collision with another police constable and was initially taken to LCB Police Station and thereafter to B-Division Police Station. He further stated that he was alone on the given day at the Police Station and there was no lady with him and he was beaten by the said Police Constable Yakub Ali Patel. He has further stated that while he was taken to Hospital, on instructions given to him by Doctor, his clothes were removed before entering into the bathroom and thereafter his semen were spread on his underwear. He was thus falsely involved in the serious offence of rape.
Eventually, statement of the accused recorded by the Court under Section 313 CrPC also gets support from the Page 25 of 28 R/CR.A/309/2002 CAV JUDGMENT statement of PW-5 Dr. Ravishanker Shah. As per the opinion of this witness, no semen were found on the clothes of the accused, and whereas, FSL report supports presence of semen on the jacket of the accused. In the statement under Section 313 CrPC, semen were subsequently spread over underwear of the accused and it was changed by Police Constable- Yakubbhai. Therefore, character of this witness creates doubt because in the background of serious allegation of demanding a sum of Rs. 2,50,000/= from a person belonging to South Africa and publishing of a news article on the very same day of demanding gratification as well as filing of a Civil Suit by the said person before the Civil Court and grant of interim injunction by the Court against this witness restraining him from entering into the house, or taking forcible possession of the plaintiff, all these sequence of events create doubt in the prosecution story of alleged rape. I am, therefore, of the opinion that on such a person, who is not found to be trustworthy or reliable, no reliance could have been placed by the trial Court; more particularly in a case of an offence punishable under Section 376 IPC.
Page 26 of 28 R/CR.A/309/2002 CAV JUDGMENT
Except PW-4 Yakub Ali Patel, who is allegedly an eye witness, no other witness has lent support to the prosecution story, nor even it gets due corroboration from the panchas who have been eventually declared hostile by the trial Court. Statement of the prosecutrix was not recorded, nor was she examined before the Court. More so, on medical examination, there were no bodily injuries found over her body. She was found more than twenty years of age by the Radiologist, who too was not examined by the prosecution for the reasons unknown. Prosecutrix was married and had probably given birth to a child; as opined by the Doctors, when she was examined at Civil Hospital, Bharuch. There is no iota of any evidence that any rape was committed by the accused against the wish and will, or by force. Therefore, the evidence led by the prosecution are not reliable to confirm the order of sentence.
In light of the above discussion, in the considered opinion of this Court, the prosecution has failed to establish commission of the alleged offence by the accused beyond reasonable doubt. The evidence is scanty and lacking due support to establish that the accused has committed an offence Page 27 of 28 R/CR.A/309/2002 CAV JUDGMENT of rape against the wish or by force, and in the manner alleged by the prosecution on the said date and time. In such circumstances, the prosecution evidence was examined very zealously so as to exclude every chance of false implication.
For the foregoing reasons and based on thread bare analysis done in the case of hands, under the above explained circumstances, the prosecution story cannot be believed to award/confirm conviction to the accused. He deserves benefit of doubt, and therefore, this Court is in complete agreement with the arguments advanced by learned advocate for the appellant-accused.
Resultantly, this Criminal Appeal is allowed. The impugned judgment and order of conviction and sentence dated 5th May 2002 passed by the learned Addl. Session Judge, Bharuch in Sessions Case No. 210 of 1998 is hereby quashed and set-aside. The appellant is already on bail. His bail bond stands discharged.
Record and proceedings be transmitted back to the concerned trial Court.
{B.N Karia, J.} Prakash Page 28 of 28