Gujarat High Court
State Of Gujarat vs Kishorbhai Jayntibhai ... on 19 September, 2016
Author: Anant S.Dave
Bench: Anant S. Dave, B.N. Karia
R/CR.A/1315/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1315 of 2012
With
CRIMINAL APPEAL NO. 855 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
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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STATE OF GUJARAT....Appellant(s)
Versus
KISHORBHAI JAYNTIBHAI TRIVEDI....Opponent(s)/Respondent(s)
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Appearance:
IN CRIMINAL APPEAL NO: 1315 of 2012
MR. RUTVIJ OZA, ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
MR BHAVIN S RAIYANI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
IN CRIMINAL APPEAL NO. 855 of 2012:
MR BHAVIN S RAIYANI, ADVOCATE for the Appellant(s) No. 1
MR. RUTVIJ OZA, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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HC-NIC Page 1 of 21 Created On Wed Sep 21 07:07:42 IST 2016
R/CR.A/1315/2012 CAV JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 19/09/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE B.N. KARIA) 1 Criminal Appeal No. 1315 of 2012 is preferred by the appellantState of Gujarat under Section 377 of the Code of Criminal Procedure, 1973, against the judgment and order of sentence in Sessions Case No. 202 of 2009 passed by the learned Sessions Judge, Bhavnagar on 20.6.2012 to modify the impugned judgment and order of sentence, so far as offence under Sections 511 and 354 of the Indian Penal Code are concerned and to enhance the sentence under the above mentioned sections to its maximum. Whereas, Criminal Appeal No. 855 of 2012, preferred by the appellant original accused of Sessions Case No. 202 of 2009 under Section 374(2) of the Code of Criminal Procedure, 1973 is against the judgment and order of conviction passed by the learned Sessions Judge, Bhavnagar, dated 20.6.2012, whereby the appellant original accused is held guilty for the offences punishable under Sections 354 of the Indian Penal Code, and has been ordered to undergo rigorous Page 2 of 21 HC-NIC Page 2 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT imprisonment for two years with fine of Rs.3,000/, and in default of payment of fine, to undergo rigorous imprisonment for one month and for the offence punishable under Section 511 of the IPC, the accused is ordered to undergo rigorous imprisonment for four years with fine of Rs.5,000/, and in default of payment of fine, to further undergo rigorous imprisonment for six months. Both the sentences are ordered to run concurrently. Whereas, for the offences under Sections 376,377,452, and 506(2) of the IPC, the respondentaccused has been acquitted. 2 The case of the prosecution, in brief, reads thus:
2.1 It is the case of the prosecution that the accused on 21.7.2009 at 12:30 p.m had gone to the house of victimgirl to serve a book. At that time, witness Nos. 8 and 9 were present at the house. It is alleged that the accused caught hold of victim and dragged her into a room, removed his own clothes as well as clothes of the victim and threatened her not to shout or else, she would be murdered, and thereafter, had a forceful intercourse with her Page 3 of 21 HC-NIC Page 3 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT against her wish and will. Therefore, the accused was charged for the offences punishable under Sections 376, 511, 452, 377, 354 and 506(2) of the Indian Penal Code.
3 A complaint in respect of the aforesaid incident was lodged by the mother of the victim before the Police Sub Inspector, Jesar Police Station. Necessary investigation was done and the accused came to be arrested. At the end of the investigation, charge sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated and charge came to be framed. The accused pleaded not guilty of the charges and claimed to be tried.
4 To prove the case against the accused, the prosecution examined 10 oral as well as produced 16 documentary evidences.
5 Heard Mr. Bhavin S Raiyani, learned advocate for the appellant in Criminal Appeal No. 855/2012 and for the respondent in Criminal Appeal No. 1315/2012. Mr. Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT Rutvij Oza, learned APP for the respondent in Criminal Appeal No. 855 of 2012 and for the appellant in Criminal Appeal No. 1315 of 2012.
6 It is submitted by Mr. Raiyani, learned advocate that the order passed by the learned trial judge convicting the appellant under Section 354 and 511 of the Indian Penal Code in Sessions Case No. 202 of 2009 dated 20.6.2012 is illegal, improper and contrary to the principles of criminal jurisprudence and against the principles of law, and therefore, liable to be interfered with and deserves to be quashed and set aside. It is further argued that the learned trial judge has convicted the present appellant only on the basis of deposition of the complainant and the relatives of the victim, who are highly interested in the prosecution case. It is further submitted that the prosecution has miserably failed to prove the case against the present appellant beyond reasonable doubt.
However, learned trial judge, without any base or evidence on record, has convicted the appellant. That, the evidence of the victim girl, statement of the doctor and panchnamas were not properly appreciated by Page 5 of 21 HC-NIC Page 5 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT the learned trial judge. That, no material documents were produced by the prosecution against the appellant and that there was no concrete evidence for conviction under Section 354 and 511 of the Indian Penal Code. That, there was no good relation between the family of the complainant and the appellant, and therefore, complaint was registered against the present appellant. That, on the statement of the victim girl and doctor, this complaint was lodged by the mother. That, the statement of the victim girl has not been recorded before the doctor or before the police. It shows that the family of the victim was interested in falsely implicating the present appellant. That, from the medical certificate and statement of the doctor it has come out that no injury was found on the body of the victim, meaning thereby that false complaint was lodged by the complainant, and therefore, it was requested by the learned advocate for the convict to quash and set aside the judgment and order dated 20.6.2012, passed by the learned trial judge at Bhavnagar in Sessions Case No. 202 of 2009 and to acquit the appellant from the charges punishable under Sections 511 and 354 of the Indian Penal Code, as well Page 6 of 21 HC-NIC Page 6 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT as to dismiss the appeal preferred by the respondent State of Gujarat i.e. Criminal Appeal No. 1315 of 2012. It is further argued that the husband of the complainant has expired and looking to the facts and circumstances of the case, the Hon'ble Court, if it deems fit, can pass an order to compensate the victim within the limit of Rs.1 lakh, as it was a dispute between two families.
7 On the other side, Mr. Rutvij Oza, learned Additional Pubic Prosecutor strongly opposed the submissions made by the learned advocate Mr. Raiyani and argued that the sentence awarded by the learned trial judge for the offences punishable under Sections 354 and 511 of the Indian Penal Code against the appellant itself is lenient and grossly inadequate. Learned APP further submitted that the learned trial judge should have considered over all facts and circumstances, and that the accused has committed an offence punishable under Sections 354 and 511 of the Indian Penal Code and that the accused should have been imposed adequate and sufficient conviction. Learned APP further contended that maximum punishment, Page 7 of 21 HC-NIC Page 7 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT while convicting the accused under Section 511 IPC ought to have been imposed, considering the evidence produced by prosecution against the accused. That, no undue emphasis ought to have been given to the contradictions and/or omissions appearing in the evidence of the prosecution witnesses by the trial Court. That, prosecution has clearly proved its case beyond reasonable doubt against the accused by leading oral as well as medical evidence. However, trial Court has committed a grave error in law, showing leniency to the accused in awarding sentence under Section 511 of Indian Penal Code. Hence, it was requested by him to allow his appeal and thereby enhance the sentence so far offence under Section 511 of the Indian Penal Code imposed upon the accused in Sessions Case No. 202 of 2009 dated 20.6.2012 and dismiss the Criminal Appeal No. 855 of 2012.
8 Having heard learned advocate for the appellant State as well as learned advocate for the respondent having bestowed our anxious consideration to the material placed before us, first of all, we would like to analyze the legal position.
Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT In case of Sadhu Saran Singh v. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357, the Apex Court while discussing scope of interference in appeal against acquittal order, held and observed as under :
20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held :
7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, Page 9 of 21 HC-NIC Page 9 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.
9 Having considered the facts of the case, submissions made by learned advocate for the respective parties and record of the Court, it appears that prosecution has proved its case under Sections 354 and 511 of the Indian Penal Code against the accused. As per the findings passed by the learned judge, the accused has attempted to commit rape on victim girl. As the charge was framed under Section 511 and 354 IPC and accepting the case of the prosecution that he had made an attempt to commit rape with the victim girl, he was convicted under both the provisions of the Indian Penal Code. Now, let us examine the case of prosecution, wherein, the learned Page 10 of 21 HC-NIC Page 10 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT trial judge has opined that considering the evidence of the prosecution, it has failed to prove the charges against the accused/appellant under Section 376, 377 and 452 of the Indian Penal Code. Now, if we examine the oral evidence of the prosecution, the complainant Shantuben Nanjibhai (Exh 10) is the mother of the victim, had lodged a complaint. As per her testimony before the Court, her husband, namely, Nanjibhai was blind and unable to hear. This incident was taken place before two years from the filing of the complaint. On the day of this incident, she herself and her two daughters had gone to their field whereas, victim as well as her husband were staying at her residence. When she returned back from the field at about 7:00 p.m, she was informed by victimher daughter that the present accused came at their residence at about 12:30 p.m and called her out.
Hence, the doors of the residence were opened by the victim. As the accused was serving as a PostMan, therefore, he was used to visit the residence of the complainant and this time he came to dispatch a book and when he inquired the victim in respect of her mother and sister, he came to know that all of them Page 11 of 21 HC-NIC Page 11 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT had gone to their field, therefore, the victim was caught hold of by the accused and then she was dragged into a room and threatened of life if she utters anything. Further, the complainant was informed by her daughterthe victim, that she was thrown away on the floor and sexual intercourse was committed by the accused. This incidence was informed to Mr. Manubhai Shamjibhaicousin of the complainant and to her nephew and thereafter a complaint was lodged before Jesar Police Station (Exh.11). As per statement of this witness, the victim was aged 20 years and was mentally retarded. It appears from her crossexamination that at the time of incidence, she was not present at her residence and for whole day, she was at her field. During this period, victim had not informed anybody of this incident, except her, when she returned back to residence from her field in the evening. The victim had not informed her father also, though, he was at the residence when the incidence had taken place. She has admitted that her husband was a deaf and was able to hear only if it was spoken loudly near to his ears and that her husband was visually impaired and could see just upto 10 feet distance. The residence of the Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT complainant is situated on the main road and number of neighbours are staying nearby to her residence. It also appears that the victim girl was also examined vide Exh.12 before the trial Court. As per her statement, at the time of incident, she herself and her father were present at their residence. At about 12:30 p.m, the accused came at their residence to deliver a book, and taking advantage of loneliness, she was caught hold of by him and was dragged into a room. Her clothes were removed by the accused as well as he himself removed his clothes, and thereafter, intercourse was made by him. She was also threatened that if she would inform anybody of the act, then she would be murdered, and thereafter, the accused left from her home. She has further stated that her father was blind and unable to hear. When her mother came back home from the field, she informed her of the incident. Thereafter, she was taken to the hospital and examined by the doctor. In the cross examination, she has admitted that she was aged about 25 years, but having no knowledge of writing and reading as she was not educated. She has further admitted that since birth her brain has not developed, and therefore, she Page 13 of 21 HC-NIC Page 13 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT has no idea about the things happening. She has admitted that if anybody would tutor her, she would exactly do the same, as instructed, and that she had given her testimony as per the instructions issued by her advocate. The accused was serving as a Postman and was in a routine course visiting her residence to serve the post. She has also admitted that if a person would speak with a loud voice nearby ear of her father, he can hear and that her father was able to move in the residence. That, nearby to her residence a number of persons and relatives were staying, whose names and addresses were inquired by the police and nothing more was inquired. That, she was never inquired by the police in respect of the offence. Further, she said that the accused came to her residence, he entered the house and she was dragged into a room where her clothes were removed and intercourse was made to her. All the things were informed to the police. She also admits that whatever instructions were given to her by her family members, accordingly, she had informed the police. In the hospital, no history was given to the doctor by her, but it was given by the relatives. Further, she admits Page 14 of 21 HC-NIC Page 14 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT that the accused namely, Kishorebhai had not come to her residence nor had he threated her. Due to the dispute between two families this complaint was lodged. Prosecution has examined doctor Bharatbhai Navinchandra Panchal PW3, (Exh.14). This witness was serving as a Medical Officer at Sir T Hospital at Bhavnagar on 27.07.2009. Victim was examined by this witness at 10:35 a.m, as she was brought for physical examination by Jesar Police Station. The victim informed the doctor that she was brought in connection with a crime of rape and that she was attempted to rape by the accused. The mother who was accompanying the victim informed that the victim was mentally retarded and also that she was unable to sit at the age of one and a half year and unable to speak at the age of five years. The victim was in a position to speak her name and able to identify a wall clock but she was unable to identify the colour or coins of different rupees. As per the opinion of this doctor, the victim was mentally retarded. This doctor has issued a certificate produced vide Exh.15. Another doctor PW4 Dr. Bhanukumar Shankarlal Solanki, was examined vide (Exh.16), as he was serving in the Page 15 of 21 HC-NIC Page 15 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT health centre as Medical Officer at Jesar. On 21.7.2009, at about 18:30 p.m, the victim was brought to this witness for her physical examination accompanied by her mother Shantuben Nanjibhai. Necessary samples were collected by this witness and were handed over to PSI Jesar by issuing a Medical Certificate at Exh.18. This witness has also examined the accused and issued a certificate Exh.20. As per the opinion of this doctor, age of the victim was between 17 to 20. Certificate issued by this witness is produced vide Exh.22. In the cross examination, this witness has admitted that no history was given by victim, but it was given by her mother. Victim was inquired by this witness, but no reply was given. At this juncture, if we examine the essential ingredients for the offence under Section 354 which can be subscribed as under:
"4 Essentials of offence under Section 354 are:
(1) That the assault must be on a
women,
(2) That the accused must have used
criminal force on her, and
(3) That the criminal force must have
been used on the woman intending
thereby to outrage her modesty.
Act will amount to outraging of modesty if it is such which could be perceived as one capable of shocking sense of decency of a woman. Modesty of a woman is her sex, it is a Page 16 of 21 HC-NIC Page 16 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT virtuewhich attaches to a female owing to her sex. Modesty is quality of being modest and in relation to woman, it is womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct.
5 Scope and object: The offence of outraging the modesty is committed when a person assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. To constitute an offence of indecent assault on a woman an intention to outrage her modesty must be present."
10 Panch witnesses Hardevsinh Ravubha (Exh.26) and Mayabhai Kadubhai (Exh.28) are not supporting the panchnama (Exh.27) regarding panchnama of recovering clothes of the accused and they have turned hostile by the prosecution. Doctor Mehulbhai Tribhovandas Parmar (Exh.31) has examined the victim girl on 27.07.2009. He has opined that there was no external injury found on the victim as well as hymen of the victim was found to be intact. He has issued a Medical Certificate in this regard vide Exh.32.
11 Kiritsinh Hathubha Zala, Investigating Officer (Exh.35) has recorded the complaint (Exh.11) of the complainant as per her instructions, and thereafter, started the investigation. This witness has also recorded the statement of victim on 22.07.2009, in Page 17 of 21 HC-NIC Page 17 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT which she has not stated that her clothes were removed or any sexual intercourse was made on her. In the complaint lodged by the mother of the victim, she has not stated that any rape was committed by the accused, but, it transpires from the complaint that as the victim shouted the accused immediately left the residence of the complainant. Holding the victim girl, dragging her in a room and putting his hands on her breast and thereafter removing clothes of the victim, all these things were written by the complainant as informed by her daughter. As per the opinion of Radiologist (Exh.22) age of the victim girl was found approximately between 17 to 20 years. Medical evidence is not supporting the case of the prosecution of the rape committed by the accused with the victim or whatever the statement given by the victim in her testimony, nor it is stated in the complaint at Exh.11. The hymen of victim was found to be intact as per the opinion of the Medical Officer, and therefore, there is no question of implicating the accused in an offence punishable under Section 376 IPC. The learned judge has found that there was an attempt to commit rape by the accused with the victim. As regards Page 18 of 21 HC-NIC Page 18 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT outraging modesty of the victim girl is concerned, medical evidence does not indicate that the accused has tried to force his penis inside the private part of the girl or her mouth. This statement was never disclosed by the complainant in her complaint (Exh.11), nor it is stated by the victim herself in her statement before the police, but she has tried to improve her version before the Court for the first time, and therefore, it cannot be believed or relied upon. The act of the accused holding her hand, dragging the victim in a room and putting his hands on her breast would certainly be an offence under Section 354 IPC that is to say outraging the modesty. But, this offence committed by accused do not amount to attempt to commit rape punishable under Section 376 r/w. Section 511 IPC, but it was under section 354. The learned trial judge has not passed any reasons in convicting the accused under Section 511 of Indian Penal Code. It is presumed that for reasons unknown, the accused was unable to complete the offence of committing rape on the victim. Therefore, this Court is of the view that learned trial judge has rightly convicted the accused under Section 354 IPC as the Page 19 of 21 HC-NIC Page 19 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT accused has outraged the modesty of the victim girl. But, conviction under Section 511 IPC would not be maintainable in the eyes of law. Therefore, it should be quashed and set aside.
12 This Court has considered the submissions made by the learned advocate Mr. B S Raiyani for the accused and that the accused can give compensation to the victim, therefore, this Court would like to partly allow the appeal preferred by the accused i.e. criminal appeal No. 855 of 2012 quashing and setting aside the order of conviction passed by the learned trial judge under Section 511 IPC, confirming the sentence imposed on him under Section 354 IPC. Under Section 354 of IPC, if the offence is proved, the accused would be liable to be punished for not less then 2 years, which may extend to 5 years and also be liable for fine. In the present case, the accused is punished for rigorous imprisonment for two years and fine of Rs.3,000/ only for the said offences. It is the discretionary power vested with the Court to pass an order for punishment, therefore, no interference is required to be made by this Court in the punishment Page 20 of 21 HC-NIC Page 20 of 21 Created On Wed Sep 21 07:07:42 IST 2016 R/CR.A/1315/2012 CAV JUDGMENT granted to the accused. But this Court would like to compensate the victim girl under Section 357(3) of the Cr.P.C, who has suffered a loss by reason of the act for which the accused has been sentenced. 13 For the foregoing reasons, Criminal Appeal preferred by the State of Gujarat i.e. Criminal Appeal No. 1315 of 2012 consequently stands dismissed. Criminal Appeal No. 855 of 2012 preferred by the accused is hereby partly allowed by quashing and setting aside the judgment and order of conviction under Section 511 of IPC and the accused is directed to pay an amount of Rs. 1,00,000/ (Rs. One Lakh Only/) to the victim within 30 days from passing of this order by way of compensation under Section 357(3) of Cr.P.C to the victim girl.
(ANANT S.DAVE, J.) (B.N. KARIA, J.) Bimal Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed Sep 21 07:07:42 IST 2016