Gujarat High Court
Vipul Rasikbhai Koli vs State Of ... on 23 September, 2017
Author: A.G.Uraizee
Bench: R.M.Chhaya, A.G.Uraizee
R/CR.A/393/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 393 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
and
HONOURABLE MR.JUSTICE A.G.URAIZEE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VIPUL RASIKBHAI KOLI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MADANSINGH O BAROD, ADVOCATE for the Appellant(s) No. 1
MR MANAN MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 23/09/2017
ORAL JUDGMENT
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1. This appeal is directed against the judgment and order of conviction and sentence dated 15.01.2013 rendered by learned 3rd Additional Sessions Judge, Jamnagar, in Sessions Case No.101/2011, whereby the learned Sessions Judge was pleased to convict the appellant - accused viz. Vipul Rasikbhai Koli for the offences punishable under Sections 363, 366, 376, 307, 323, 354 and 364(A) of the Indian Penal Code and sentenced as under :
(i) For the offence punishable under Section 376 of the Indian Penal Code, sentenced to undergo life imprisonment and imposed fine of Rs.5,000/, failing which, to undergo further six months simple imprisonment;
(ii) For the offence punishable under Section 363 of the Indian Penal Code, sentenced to undergo 5 years rigorous imprisonment and imposed fine of Rs.5,000/, failing which, to undergo further 6 months simple imprisonment;
(iii) For the offence punishable under Section 366 of the Indian Penal Code, sentenced to undergo 10 years rigorous imprisonment and imposed fine of Rs.5,000/, failing which, to undergo further 6 months simple imprisonment;
(iv) For the offence punishable under Section 307 of the Indian Penal Code, sentenced to undergo 10 years rigorous imprisonment and imposed fine of Rs.5,000/, Page 2 of 36 HC-NIC Page 2 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT failing which, to undergo further 6 months simple imprisonment;
(v) For the offence punishable under Section 354 of the Indian Penal Code, to undergo 2 years rigorous imprisonment and it is ordered that all sentences run concurrently.
The learned Sessions Judge while passing the said judgment and order of conviction and sentence has also further directed that, the amount received from the appellant - accused, shall be given to the Prosecutrix viz. Neha D/o. Vinubhai Gadesiya under Section 357 of the Code of Criminal Procedure.
2. The following noteworthy facts, which emerge from the record of the appeal:
2.1 That the complainant Dayaben wife of Vinubhai Gadesiya has one son namely Savant and two daughters namely Sujata and Neha, and they were residing at village Singach. That on 10.03.2011, daughter of the complainant namely Neha (hereinafter referred to as "prosecutrix"), who was aged about 17 years, went to her maternal uncle's house at village Zankhar to attend the marriage of her relative and at about 12:30 P.M, the prosecutrix called her mother (complainant) informing that, she is coming to village Singach to pick up her on scooty of her maternal uncle (Mama) Ishwarbhai. It further reveals that, said Ishwarbhai informed the prosecutrix that, the keys of the scooty are with the appellant, who happens to be son of Page 3 of 36 HC-NIC Page 3 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT brotherinlaw of Ishwarbhai and upon say of Ishwarbhai, keys of the scooty were given to the prosecutrix. Thereafter, when the prosecutrix prepared herself to ride over the scooty, at that time, the appellant, who was standing near the scooty insisted to accompany the prosecutrix, but the prosecutrix refused to do so. However, when the appellant started scooty and proceeded further towards village Singach, the appellant forcefully set over the rear seat on the scooty, though the same was objected by the prosecutrix. The scooty was thereafter forcefully driven by the appellant in full speed for about 0.5 km. and thereafter, was diverted on rough road towards forest area and after driving scooty in such a manner for about 1.5 kms, the appellant pushed the prosecutrix and threw her down on the ground. Though the prosecutrix opposed the appellant and told that, what he is doing and that she would inform everybody, the appellant abused and beat her and forcefully removed her Tshirt and jeans pent, which were worn by the prosecutrix and also took out his jeans pent and forcefully put himself upon the prosecutrix and dragged prosecutrix in such situation and committed intercourse for about 6 to 7 minutes. It further reveals that, while the prosecutrix shouted and tried to oppose the appellant, the appellant pressed her mouth by tying his shirt. As the prosecutrix tried to get up, the appellant again pushed her down and bounced upon the body of the prosecutrix and committed rape for a period of about 7 to 8 minutes. At that time, the prosecutrix told the appellant that, once he Page 4 of 36 HC-NIC Page 4 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT goes out from here, she would inform everybody. At that time, the appellant assaulted the prosecutrix with stone and gave blows on the head of the prosecutrix, because of which, the prosecutrix became semi unconscious and slipped down on the place of offence. Thereafter, the appellant ran away from there on the scooty.
2.2 In the said incident, the prosecutrix received serious injuries over her head, legs, backside and other parts of the body and blood started oozing out.
Thereafter, two females, who were passing from nearby village upon hearing the shout of the prosecutrix came to the place of offence and called another person, who dressed up the prosecutrix, who was lying in naked and semi unconscious condition. Upon asking her identity, the prosecutrix with much difficulty, informed her identity and thereafter, Ambulance was called and the prosecutrix was taken to G.G.Hospital, Jamnagar for treatment.
2.3 Thereafter, she was taken to Gokul Hospital, Jamnagar and then, she was referred to Gokul Super Specialty Hispital, Rajkot for further treatment, where she was operated and stayed as indoor patient about 9 days. FIR came to be lodged by mother of the prosecutrix, who accompanied the prosecutrix in the Hospital, for the offences under Sections 363, 366, 376, 307, 364(A), 323 and 354 of the Indian Penal Code.
3. Pursuant to the FIR, the appellant - accused was Page 5 of 36 HC-NIC Page 5 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT arrested. After completion of the investigation, chargesheet was filed before the Court of learned Judicial Magistrate First Class, Lalpur. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of learned Sessions Judge, Jamnagar, which was thereafter registered as Sessions Case No.101 of 2011. Since the accused did not plead guilty and claimed to be tried, he was tried for the said offences.
4. At the time of trial, in order to bring home the charges levelled against the accused, the prosecution examined 15 witnesses and produced 22 documentary evidences.
5. At the end of the Trial and after recording the statement of the accusedconvict under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned Sessions Judge convicted the appellant for the said offences. On completion of the trial, learned Sessions Court passed the impugned judgment and order of conviction and sentence dated 15.01.2013.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by learned Sessions Court, present appeal is preferred by the appellantconvict.
7. Heard Mr.Madansingh O. Barod, learned counsel for Page 6 of 36 HC-NIC Page 6 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT the appellant - accused and Mr.Manan Mehta, learned Assistant Public Prosecutor for the respondent - State.
8. Learned counsel for the appellant has contended as under:
(a) That the prosecution has miserably failed to prove the offence under Section 376 of the Indian Penal Code and therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
(b) That the case of the prosecution is false and fabricated and the appellant has been falsely roped and convicted in the present case.
(c) That there are total contradictions in the statements of the victim, mother of the victim and medical evidence.
(d) That from the deposition of PW:1 Dr.Prakash Chandra Gokaldas Modha, it bornes out that even as per the medical evidence, no rape appears to have been committed as alleged by the prosecution.
(e) That the prosecution case is improbable inasmcuh as that after prosecutrix left on scooty, her brother went with the scooty to pick up her mother from village Singach, which establishes the fact that whole story of prosecution is without any basis.
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(f) That the learned Sessions Court has wrongly held that, the rape is committed by the appellant though there is no evidence of completion of offence of rape and therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
(g) That though there is no evidence of rape, the appellant has been wrongly convicted for the offence under Section 376 of the Indian Penal Code and sentenced for life imprisonment.
(h) That the medical evidence do not show that the injuries were caused by the appellant as contended by the prosecution and the complainant.
(i) That the panchwitnesses have not supported the case of the prosecution and therefore, the serological report cannot be relied upon.
(j) The complaint was filed because of enmity between Bipinbhai, who happens to be the father of the prosecutrix and hence, the prosecution story is false and fabricated.
(k) That, apart from the contradiction in the statements of the prosecutrix herself, there is no corroborative evidence to link the present appellant with the said offences and therefore, the impugned judgment deserves to be quashed and set aside.
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(l) Relying upon the depositions of PW:1 Dr.Prakash Chandra Modha and PW:4 Nisarg Haribhai Patel, it was contended that even in the medical history, which was given before these witnesses, name of the present appellant was not given and that no allegation of rape was made and thereafter, the appellant has been wrongly roped in false and fabricated case.
(m) That the learned Sessions Court has erred in sentencing the appellant for life imprisonment for the offence under Section 376 of the Indian Penal Code.
On the above mentioned grounds and contentions, learned counsel for the appellant submitted that, looking to the age of the appellant - accused being 25 years old as on date, the sentence is disproportionate and harsh and hence, the same should be at least reduced to 10 years.
9. Per contra, Mr.Manan Mehta, learned Assistant Public Prosecutor for the respondent - State has supported the impugned judgment and order and has contended as under:
(a) That the prosecution has proved all the offences beyond reasonable doubt and therefore, the appeal being meritless, deserves to be dismissed.
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(b) Relying upon the deposition of the
prosecutrix at Exh:31 and the oral deposition of the complainant - Dayaben Vinubhai Gadesiya as well as serological report at Exh:63, it was contended that reading these piece of evidence together, clearly establishes the guilt of the appellant.
(c) That even considering the deposition of the doctors and medical papers, the same clearly proves beyond reasonable doubt the manner in which the appellant has conducted himself and therefore, the learned Sessions Court has rightly convicted the appellant for the offences charged against him.
(d) That there is no contradiction in depositions of prosecutrix and complainant - Dayaben. That PW:4 Dr.Nisarg Haribhai Patel on the contrary has categorically stated that the rape cannot be ruled out and therefore the contention raised by the learned counsel for the appellant is de hors the evidence on record.
(e) That the evidence clearly reveals that the condition of the prosecutrix when she was taken to hospital was of such nature that she was found in naked condition and was taken to hospital in semi unconscious and therefore, the contention that in the medical history given in the hospital at G.G. Page 10 of 36 HC-NIC Page 10 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT Hospital, Jamnagar, the appellant has not named, is of no consequence.
(f) That Dayaben Gadesiya, who gave the medical history and from the deposition of the prosecutrix, it is proved by the prosecution beyond reasonable doubt that the offence of rape has been committed by the appellant.
(g) That the prosecutrix was 17 years old and the manner in which the appellant has misbehaved with her and caused serious injuries for which the prosecutrix had to undergo extensive medical treatment and was also required to be operated, clearly establishes that the appellant has misbehaved in ghastly manner and has committed such heinous crime and hence, no leniency deserves to be shown to the appellant even by reduction of sentence from life imprisonment to 10 years for the offence punishable under Section 376 of Indian Penal Code as alternatively contended by learned counsel for the appellant.
(h) That the learned Sessions Court has committed no error in the impugned judgment and order of conviction and sentence and hence, the appeal being meritless, deserves to be dismissed.
No other or further submissions are made by learned counsel for the parties.
10. Perused the record and proceedings and have taken Page 11 of 36 HC-NIC Page 11 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT into consideration the submissions made by learned counsel for the parties.
11. Upon perusing the deposition of the Prosecutrix, who was examined at Exh:31, it clearly reveals that she has studied upto 9th standard and her date of birth is 19.12.1993 and hence, the prosecutrix was just 17 years on the date of incident. She has stated in her deposition that, on 10.03.2011, she had gone with her younger brother to attend the marriage of niece of her maternal uncle Ishwarbhai at village Zankhar. She has also stated that, about 12:30 P.M, she had called her mother from the mobile of said Ishwarbhai, and informed that she would come to pick her up and thereafter, asked Ishwarbhai about the keys of the scooty (scooter). She has clearly stated that her maternal uncle informed that the keys are with the appellant and therefore, he told the appellant to give the keys of the scooty. That after she got the keys and when she reached near the scooty, the appellant told her that he also intends to go to village Singach to give some invitation and informed the prosecutrix that he intends to come on the scooty, to which the prosecutrix declined and therefore, the appellant got angry and strongly insisted that he wants to accompany her and therefore, the prosecutirx threw the keys of the scooty. At that time, the appellant told the prosecutrix to proceed and he left that place. The prosecutrix has further deposed that when she started scooty and was going slowly, the appellant ran behind the scooty and set on rear seat of the scooty and put his hands on the hands of the Page 12 of 36 HC-NIC Page 12 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT prosecutrix and forcefully drew the scooty in excessive speed and therefore, the prosecutrix shouted but nobody was there. Thereafter, the appellant diverted the scooty on rough road and immediately drew towards the forest area at a distance of 1.5 kms., where nobody was there. That the appellant slowed down the speed of scooty and threw the prosecutrix out from the scooty. She has further stated that before she could get up, the appellant came in front of her and caught her hairs and pushed her. The prosecutrix also made aware that what he is doing and that she would inform everybody. Therefore, the appellant abused and beat her and pull down her TShirt and jeans pent worn by the prosecutrix and the appellant himself also removed his clothes. She has further deposed that, the prosecutrix tried to get up, but the appellant dragged her on the rough surface and because of which, she received injuries on her backside. Thereafter, the appellant committed rape and because of which, her private part started itching and the appellant moved upon the prosecutrix. She has further deposed that before she could raise shout, the appellant pressed her mouth by tying his Shirt, however, as and when the prosecutrix tried to get up, the appellant pushed her down. Thereafter, for about 78 minutes, the appellant laid upon the prosecutrix and thereafter, liquid from private part of the appellant went into the private part of the prosecutrix. Thereafter, the appellant got up and dressed himself and left the prosecutrix there in such helpless condition and that she was not able to get up. She has further deposed that she told the Page 13 of 36 HC-NIC Page 13 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT appellant that as soon as she comes out from the forest, she would inform everybody. At that juncture, the appellant threatened her that she would inform everybody only if she comes out from the forest area and pressed her throat, because of which, the prosecutrix went into semi unconscious condition. She further deposed that, when she opened her eyes, the appellant attacked with the stone on her head twice and she became semi unconscious, therefore, the appellant felt that, she has died and the appellant ran away from the place of incident on the scooty. She has also deposed that she received serious injuries on her head, legs and other parts of the body and blood started oozing out and after late hours, she heard the voice of somebody walking and therefore, she tried to get up, but she again collapsed and because of that, one person came and asked about the situation. She has further deposed that said person tried to make her walk, but she could not walk and thereafter, called Ambulance and she could only hear the voice of Ambulance. She has further deposed that she heard the voice of her mother in the Ambulance and her mother asked about the person, who has created such a situation. She has further deposed that she stated in broken voice that he was the appellant. Thereafter, she was taken to G.G. Hospital, Jamnagar and the doctors applied medicines on her hands and she could only hear that it is an emergency case. She has further deposed that the doctors opined to take her to Gokul Hospital, Jamnagar, wherein the doctors applied medicines and bandages, from where, the prosecutrix Page 14 of 36 HC-NIC Page 14 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT was referred to Gokul Hospital, Rajkot for further treatment. She has also deposed that hairs of the prosecutrix were removed and was admitted as indoor patient and operated on head.
12. She has deposed that, pursuant to the said situation, the police came to the hospital and inquired about the said incident. Thereafter, in the night hours, Mamlatdar also came there and inquired about the same. She further stated that when she combated with the appellant, she had scratched her nails on the chicks of the appellant and also beat with Chappals. That she came back to her house on 25th and 26th of April, 2011 and thereafter, she was taken to G.G.Hospital, Jamnagar, for medical check up with her mother, sister and other police personnel. She has further stated that, after 10 days of said check up at G.G.Hospital, the police came and took her to Jam Khambhaliya Hospital where the samples of her hair were taken from the head and was sealed in a bottle, which was signed by her. She has also identified the stones, chappal, TShirt, pent, nikar and necklace as well as the pent, shirt, handkerchief and nikar of the appellant accused. In her Crossexamination, she has denied all the contrary suggestions of the defense and has stuck to her examinationinchief.
13. The prosecution has also examined PW: 7 Dayaben wife of Vinubhai Gadesiya (Complainant), who was examined at Exh:39. The said witness has deposed in her deposition that, at about 10:00 clock in the Page 15 of 36 HC-NIC Page 15 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT morning, her daughter Neha and her son Savant went to village Zakhar to attend one marriage and at about 12:30 P.M, she received call from Neha informing her that she would come to village Singach to pick up fetch her, but at about 1:30 P.M, her son Savant came to pick up her and upon asking, her son told that, he had not seen the prosecutrix. She further deposed that as soon as the complainant reached at village Zakhar, she inquired about her daughter from Ishwarbhai, Rajubhai, Rashilabhabhi, Poojabhabhi and Rasikbhai and also made inquiry from near vicinity, but the prosecutrix was not found out till 4:00 P.M. She has further deposed that, at about 6:00 P.M, Ishwarbhai received a call from Jaysukhbhai Virabhai, who is son of her uncle and informed that, the prosecutrix sustained serious injuries and she is in Ambulance of Essar Company at a distance of 0.50 to 0.75 Km. from Zakhar village in semi unconscious condition and informed Ishwarbhai to go there. She has further deposed that, Jaysukhbhai also informed that, he was informed by Padubha of village Zakhar. She has further deposed that, on coming to know about the said incident, the complainant along with Ishwarbhai went there and found that many persons had gathered and when she reached near prosecutrix, she found that the prosecutrix was in blood stained clothes and had received serious injuries on the right side of the head, eyes, ears, lips and upon the whole face and was in semi unconscious condition. She has further deposed that, she alongwith Ishwarbhai, Jaysukhbhai, Karsanbhai went to G.G.Hospital, Jamnagar in the Page 16 of 36 HC-NIC Page 16 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT Ambulance and on the way, upon further inquiry, the prosecutrix informed the complainant that when she was coming to pick up her at village Zakhar, the appellant accused, who was the son of Rasikbhai, was standing there and forcefully set on the scooty and put his hands on her hands and driven the scooty at secluded place in forest area and he started misbehaving with her and as she protested the same, the appellant accused inflicted stones on the head and because of which, she fell down and thereafter, the appellant - accused committed rape forcefully. She has also further deposed that, the appellant dragged her and beat her by giving kick blows. She further deposed that, primary treatment was given at G.G.Hospital, Jamnagar and thereafter, the prosecutrix was referred to Gokul Hospital, Jamnagar and from there, she was taken to Gokul Super Specialty Hospital at Rajkot and admitted as an indoor patient for a period of 9 days. She further deposed that, the police came to the Hospital on the next day i.e. 11.03.2011, and recorded her statement. Thereafter, the police came again and took the clothes of the prosecutrix. She further deposed that at the time of incident, the prosecutrix worn light black color Jeans pent, light red color T shirt, belt, orange color nikar and light cream color bra and also identified her necklace. She has also identified white sandal, golden earrings, nose ring etc., which were worn by the prosecutrix at the time of incident.
14. In her crossexamination, this witness has stated Page 17 of 36 HC-NIC Page 17 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT that, the mobile is of her son and they have no landline telephone at their residence. That they were labourers and that they earn their livelihood by doing agriculture labour work. In her crossexamination, she has not stated in her complaint that rape was committed upon the prosecutrix. She has denied the suggestions of the defence that she was informed by the prosecutrix in the Ambulance about the said incident. She has also denied that the allegations of rape upon the prosecutrix as well as the fact that the appellant beaten the prosecutrix is deposed for the first time in the Court. She has also denied the suggestions of the defence that in order to falsely implicate the appellant, wrong FIR was given. She has also denied the suggestions that she was not knowing about the incident and she has not given such history before the Doctor. She has also denied that she is giving false deposition to falsely implicate the appellant accused.
15. The prosecution has examined three doctors, who treated the prosecutrix, wherein PW:1 Dr. Prakashchandra Gokaldas Modha, who was examined at Exh:7. This witness has deposed in his statement that, he is Neurosurgeon in Gokul Super Speciality Hospital, Rajkot and on 11.03.2011, at about 5:00 hours in early morning, one patient named Neha Vinubhai Gadesiya, aged 17 years was brought to the hospital by one Ishwarbhai Ramjibhai, who was her maternal uncle, who had given history to the effect that, some unknown person had beaten her at about 1:00 hours in the noon Page 18 of 36 HC-NIC Page 18 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT on the previous day i.e. 10.03.2011. The said witness has deposed in his statement that, after taking primary treatment at G.G.Hospital and Gokul Hospital, Jamnagar, for further treatment, she was brought to Gokul Hospital, Rajkot. He has further deposed that, patient was speaking haphazardly and was violent. The said witness has stated that, there was 3 cm. stitches on the right side of the forehead, some wounds on right parietal region and stitches were taken. Over and above that, on the right side of temporal region, wound of 1 cm was found where stitches were taken. He further deposed that, on the right chick, two stitches were taken, similarly, there was one stitch on the right side lip and 1 x 1 cm. wound was found on the left chick. He has further deposed that there were also abrasions of 6 x 6 cm. on the right chick, right side of hypochondria region and also found 10 X 12 abrasions on the right side of vest. Abrasions of 3 X 3 cm was found on the right elbow. He further deposed that, the patient was operated on 11.03.2011 at 9:00 a.m. in the morning for removing bone from the forehead. The said witness has further deposed that one A.C.P madam came to the hospital to collect the samples of blood, pubic hair, nails, saliva etc., which were collected by the nursing staff and at that point, she was not in a position to give any independent statement. He further deposed that, the said patient was admitted on 11.03.2011 and was discharged form the hospital on 18.03.2011. He has also further deposed that, injuries were the grievous injuries and were on many parts of the body, more Page 19 of 36 HC-NIC Page 19 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT particularly on right side of the brain. He further deposed that, such injuries can be sustained if a person is lifted by holding hair and by dashing with the stones. He stated that such injuries cannot be self inflicted.
16. The said witness in his crossexamination, stated that, gynecologist investigation was done, however, it was not found that the rape was committed. He has admitted the fact that, a person, who came with the patient gave a history of beating by someone. He has also stated that, if any name is given and if any weapon is mentioned, they make note of the same. He has also stated that, before him, the history regarding how the victim was beaten was not given. He has also stated that, injuries which are shown in the certificate at Exh:9 are on vital side of the body and if any person is dragged with the back side on the land, abrasions grazer type can occur. He further stated in his crossexamination that, he cannot say that, injury Nos.2 to 6, of which type of mechanical injuries such as insize, step, puncture, chop, confecusion and laceration as stitches were taken. He has also stated that abrasions are simple injuries and the same would completely be cured within 12 to 15 days. He has further stated that, when a person is assaulted on a particular side of the body, injury would be on such side. He further admitted that, if any assault is made on the front side and person is pushed back, no injury would be there on other side. He has also admitted that, the part above the ear is Page 20 of 36 HC-NIC Page 20 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT known as temporal region, part on the the forehead is known as frontal region and the part over the forehead known as parietal region. He further deposed that, brain parentime means a particular part of brain, whole part of brain as well as the brain system. That there was normal system in the small brain. He further deposed that he had not handed over the clothes to Dayaben and except the signature, no panchnama was drawn regarding handing over the clothes to Jaysukhbhai. He has stated that the samples of blood, hairs, nails of the prosecutrix, which were taken by ASP Madam, have not been received back by him. He has admitted that, if any person falls down while driving the scooty, such injuries may occur. Even if, a person is pillion rider and falls down, such injuries may occur.
17. The prosecution has also examined PW:2 Satyajit Virendrasinh Rajan, who was examined at Exh:10. This witness has stated in his deposition that, on 04.05.2011, when he was serving as Medical Officer in JamKhambhaliya General Hospital, one lady Police Constable came to the hospital along with the prosecutrix for investigation and for taking samples of Hair of prosecutrix and after taking consent of the prosecutrix, sample was taken and was sealed. He has also identified the samples, which were collected which bears the seal of his hospital. He has denied the suggestions of the defence that, the sample was taken and no panchnama was made. He has stated that in the sample collection Form no history has been noted.
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18. The prosecution has also examined PW:3 Dr. Pratiksha Arvindkumar Modi, who was examined at Exh:17. This witness has deposed in her statement that, during March2011, she was serving as Tutor in Radiology Department of G.G.Hospital, Jamnagar. She has further stated in her examination inchief, that the prosecutrix was brought in the month of March, 2011 to her hospital under M.L.C. Case No.25/2011 for determining the age. She has admitted the fact that, the document at Exh:18 was referred by Gynec Department, however, there is no note of the same and no date is mentioned. She has further that, the said letter was written to C.M.O and not to the doctor of Gynec Department. She stated that she has not done any decree course in radiology. She further admitted that in order to determine the age of the prosecutrix, investigation of the body as well as secondary sexual character and ossification test are to be performed. She has admitted that, she has not done any investigation or has not verified the secondary sexual character of the prosecutrix and no note is made. She has admitted the fact that, by examination of teeth, the age of a person can be determined. She has also admitted that, third moral teeth erection takes place between 17 to 25 years of age. She has also admitted that, teeth of the patient were not examined and no reference was made for the same. She has further deposed that, as per the medical jurisprudence of Dr.Modi (at page39) cartilaginous bonds fusion sets in female two years before its sets in male. She has Page 22 of 36 HC-NIC Page 22 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT admitted that, she has not taken XRay of scull of the prosecution. She denied the suggestions of the defence that in order to help the prosecution, she is giving false deposition.
19. The prosecution has also examined PW:4 Dr.Nisarg Haribhai Patel (Gynecologist), who was examined at Exh:19, who had examined the prosecutrix. He has stated in his deposition that, on 25.04.2011, while he was on his duty as Gynecologist, the prosecutrix was brought with police Yadi by one Rekhaben Gosai Police Constable. He deposed that the patient as well as her mother gave history to the effect that, she is 17 years old and she had gone to village Zakhar for attending the marriage at about 10:00 a.m. and as she wanted to fetch her mother on scooty from village Singadh to Zakhar, she asked the appellant accused about the keys of Scooty and at that time, the appellant forcefully took the prosecutrix to a secluded place in forest area at a distance of 1.5 kms away from village Zakhar and beat the prosecutrix by the stone, because of which, the prosecutrix became unconscious and as she was not found on the place of marriage, efforts were made to find out her at 6 P.M. He further deposed that, some villagers found out the prosecutrix in naked condition and in semi unconscious manner and at that time, she had given the name of the appellant accused. Thereafter, she was taken to hospital, where CT Scan was done and because of head injury, she was referred to Gokul Hospital, Rajkot, wherein she was operated on 11.03.2011 and was Page 23 of 36 HC-NIC Page 23 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT discharged form the Hospital on 20.03.2011. Thereafter, she went to her home. The said witness has also stated that, she was brought on 25.04.2011 for Gynecology investigation, wherein it was found that, the prosecutrix has moles on the left eye and left side of navel. He has deposed that the incident took place on 10.03.2011 at about 1:00 P.M. He stated that as the patient was unconscious, really what has happened she was not able to narrate. He has further deposed that before that, the prosecutrix had not established any physical relation with anybody. She has further deposed that, secondary sexual characters were fully developed and mensuration was regular and ordinary. He also deposed that, no pregnancy was there prior to the incident and no such history was made available. The said witness has further deposed that, after carrying out general investigation, she was crying, but she conscious and was capable to give answer of any question and even the time and place, and was in a position to identify anybody. Her B.P. pulses were normal. There was abrasion on the right side of chick and star marks on the right forehead where surgery was done. Small cut mark was also found on the right side of her eye and the same had healed. He further deposed that, mark of injury on the neck of right side and even the said injury had healed. Abrasion of 4 cm was on the right side of her thigh where one mark was found. Abrasion of 2 X 2 cm on the left side of buttocks and skin had dried. First finger of her left leg had blackened with abrasion of 2 x 2 cm. The said witness has further deposed that, upon Page 24 of 36 HC-NIC Page 24 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT examining her abdomen, no wet aliment was found in her pubic hair. There was no injury found on majora or mynora of her vagina and her hymen and there was no swelling was found on her private parts. He further deposed that, no injury was found on vaginal part of the prosecutrix. The said witness has deposed that, two fingers were possible to be inserted in her vagina but with pain. The said witness has categorically stated that it cannot be ruled out that the rape is not committed. If patient is brought after long time for medical investigation, injuries ooze out and the same may not appear in her private parts and if anybody raped by force, there may be signs of injury over it.
20. In his crossexamination, the said witness has stated that, the prosecutrix received injuries on her body as per the medical case papers and not only from the certificate. He has stated that, he has not mentioned about the injury on the neck in the case papers. He had admitted the fact that when wound is fresh, the same is of red in color and after 1 day, it becomes blue, and after 2 to 4 days, it turns luis black to brown and after 5 to 7 days, it becomes green in color, and after 7 to 10 days, it turns into yellow color and after 1415 days, it would become natural skin color and thereafter, no sign or mark would be seen. He has stated that diagram in the case paper is not prepared by him and is not written by him. He has stated that he mentioned the injuries on basis of the diagram of the injuries. He has admitted the fact Page 25 of 36 HC-NIC Page 25 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT that, when the abrasions are fresh, the same are of red color and after 24 hours, it reels black. He has further stated that, if abrasion is only on the skin level, it can completely vanish after 14 days, but if abrasion is dermis, scars remained. He admitted the fact that, in the certificate, he has not stated that the abrasion of which level and he has not written that the abrasion was upto which level of skin. However, scar marks were there. He has admitted the fact that, in the certificate, injuries are mentioned at page No.2, he has not mentioned the size of any of the injuries. He has not stated the age or how old the injuries were there. He further deposed that he has also not stated the types of abrasion in the certificate and that any edged article, linear abrasion may occur. He has also admitted that the bite marks would completely disappear within 10 days and by applying tenderness medicine, the same can be cured. He has admitted the fact that presence of semen in blood would remain for 24 hours. He has also admitted that before him, the prosecutrix has not mentioned that she was dragged. He has admitted that in his presence, it is not stated in the history that, somebody raped. He has further admitted the fact that, history was given by the prosecutrix and her mother Dayaben and no history was given by the prosecutrix that prosecutrix and Vipul had scuffle. No such history has given alleging that the accused lured the prosecutrix and took her away. He has admitted the fact that, hymen of woman would be torn because of swimming, cycling, jumping and even if she is an Page 26 of 36 HC-NIC Page 26 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT athlete. If the victim scratches with her nails, residuary of skin and blood of assailant would come. He had admitted the fact that if anyone performs sexual intercourse with base on ankles on rough surface, abrasion may be found on the ankles. He has also stated that, if any woman is forcefully assaulted or if forcefully sexual intercourse is performed, injuries would be there on labia majora and labia mynora. The signs of injuries which were found on the body of the prosecutrix have been noted by him. He has not noted the injuries on the right and left side of the prosecutrix, where stitches were taken. He has denied that he is giving false deposition in order to help the prosecution.
21. The prosecution has also examined PW:5 Rakhalchand Datta, who was examined at Exh:23. The said witness was working as Medical Officer in G.G.Hospital, Jamnagar, and he has deposed in his deposition that, on 10.03.2011, at about 7:25 hours in the evening, patient named Neha was brought to G.G.Hospital by her mother in semi unconscious condition and was not in a position to give history and the history was given by her mother. The said witness has further deposed that, history was given to the effect that, on 10.03.2011, the appellant - accused has beaten the prosecutrix and on examination, three injuries were found. He has further stated that, the appellant had committed rape upon the prosecutrix. He has deposed that after looking to the treatment papers, he could show that many bones were broken on Page 27 of 36 HC-NIC Page 27 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT the head of the prosecutrix and there was subdural hemorrhage in the brain. He further deposed that after giving preliminary treatment, she was referred to higher center for further treatment. He has further stated that as per the treatment papers, prosecutrix was referred to Gynecologist on 10.03.2011 at 8:10 P.M, and referred to Dr.Monaben Gandhi. He has categorically stated that all the injuries received by prosecutrix were on the vital part and injury No.1, 2 and 3 are of serious in nature. He has further deposed that as per the CT Scan report, because of injury Nos.1 and 2, there was fracture in many bones of the forehead and internal bleeding was there in the brain. He further deposed that, if proper treatment was not given to the patient, injuries were sufficient to cause the death.
22. In his crossexamination, he has stated that, injuries, which were found are mentioned in the same. He has further stated in his crossexamination that, when he examined the injuries, patient was serious and was referred to higher center for further treatment. He had admitted the fact that such injuries cannot be caused with single blow and when he saw the prosecutrix for the first time in such situation, her mouth was open. In the case papers at Exh:24, in the history it is mentioned heavy cutting instrument would be a spear or weapon with sharp edged. He has stated that, such injuries may be caused with sharp edged weapon. He has further deposed that, as per the case papers at Exh:24, no injuries were found on the Page 28 of 36 HC-NIC Page 28 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT private part of the prosecution. He has further admitted that, when question mark is there in the medical papers, the same refers to query that means "not certain". He has stated in case papers at Exh:24 that in the first page of the history, it is not mentioned about the rape or attempt to rape and no such history is mentioned. He denied the suggestions of the defence that he is giving false deposition in order to support the case of the prosecution.
23. Over and above this, the prosecution has also examined PW:8 Karsan Pala Dhuniya at Exh:48, who was Panchwitness of samples taken from the place of incident, PW:9 Mohabbatsinh Amarsang Jethva at Exh:49, who was the panchwitness of panchnama of recovery clothes of accused, PW:10 Abhesinh Shivubha Jadeja at Exh:51, who was the panchwitness of panchnama of recovery clothes of accused and PW:12 Ravubha Manubha Jadeja at Exh:53, who was the panchwitness of muddamal articles. However, all these panchwitnesses have not supported the case of the prosecution and have turned hostile.
24. The prosecution has examined PW:13 Navaldan Shambhudan Mokhara, who was examined at Exh:56 and before whom, the complaint was given.
25. The prosecution has also examined PW:14 Prabhudas Vechatji Kotwala, who was examined at Exh:59. This witness was the Investigating Officer and has fully supported the case of the prosecution and has threadbare narrated the investigation conducted by him Page 29 of 36 HC-NIC Page 29 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT and has also stated the evidence, which were found including the serological report. Even in his cross examination, he has stood the test of the same and has denied all suggestions of the defence.
26. The prosecution has also examined PW:15 - Shankarbhai Ranchhodbhai Patel, who was examined at Exh:64. This witness filed chargesheet. In his cross examination, he has denied the suggestions that even though sufficient evidence was not there, chargesheet was filed.
27. Over and above, it is noteworthy that the prosecution has also adduced documentary evidence such as FIR at Exh:40, Panchnama of Scene of offence at Exh:61, Injury Certificate of the prosecutrix issued by Gokul Hospital at Exh:9, Injury certificate of the prosecutrix issued by G.G.Hospital at Exh:25, Panchnama of recovery of vehicle at Exh:43, Panchnama of recovery of clothes of the prosecutrix at Exh:50 and FSL report at Exh:63.
28. The complaint was given by PW:7 - Dayaben Vinubhai Gadesiya, mother of the prosecutrix, who has narrated the occurrence of crime. Most important vital evidence has been adduced in form of deposition of PW:6 Prosecutrix Neha D/o. Vinubhai Gadesiya at Exh:31. The same shows that 17 years old girl is forcefully abducted by the appellant, who was a distant relative of the prosecutirx and very well known to her. The appellant accused took her to a secluded place in forest area. The statement of the Page 30 of 36 HC-NIC Page 30 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT prosecution shows that the manner in which she was assaulted by the appellant - accused and raped. As the facts, which unfold from the evidence on record, incident took place on 10.03.2011 and after the said incident, the prosecutrix was in semi unconscious condition and she was found lying in naked condition for more than 4 hours almost in pitiable condition. She was taken first to G.G.Hospital, Jamnagar, wherein she was examined by PW:5 Dr.Rakhalchand Datta at Exh:23. Considering the Injury Certificate of the prosecutrix at Exh:25 issued by PW:5 as well as the statement of the prosecutrix, as to how she has taken forcefully on scooty and how she was beaten up and assaulted by stone and how her mouth being tide up with the shirt by the appellant accused and the injuries which were found on the body of the prosecutrix were of serious in nature and as deposed by the doctors that the injuries were found on vital part of her body, which could have caused death. Record indicates that, the injuries sustained by the prosecutrix were of serious in nature, the prosecutrix was required to be referred to higher center for medical treatment at Jamnagar first and then shifted to Gokul Super Speciality Hospital at Rajkot.
29. In light of such unimpeachable evidence, the prosecution has been able to prove the guilt of the appellant for the offences under Sections 363, 366, 307, 354, 323 and 364(A) of the Indian Penal Code. Upon reappreciating the evidence on record, learned Sessions Court has correctly appreciated the evidence Page 31 of 36 HC-NIC Page 31 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT on record and has rightly convicted and sentenced the appellantaccused for the said offence. It deserves to be noted that, even learned counsel for the appellant made only feeble attempt on the aspect of aforesaid offences.
30. Considering the submissions made by learned counsel for the appellant that false and fabricated case has been made out by the prosecution against the appellant is not only baseless, but the same is totally de hors the evidence on record. Similarly, upon reappreciation of the evidence on record, more particularly the deposition of prosecutrix at Exh:31, the prosecutrix has clearly narrated the manner in which the appellant has misbehaved with her. Taking into consideration the deposition and statement of the prosecutrix, the appellant has been rightly found to be guilt for the offence under Section 376 of Indian Penal Code as well. This Court is of the opinion that, when the statement of the prosecutrix is found to be reliable, no other corroboration is necessary.
31. Considering the following judgments of the Hon'ble Supreme Court as well as other catena of decisions and the evidence on record, the statement of prosecutrix is reliable and there is link of truth and hence, no further corroboration is necessary : (I) Vijay Alias Chinee Vs. State of Madhya Pradesh [(2010) 8 SCC 191] (II) Wahid Khan Vs. State of Madhya Pradesh [(2010) 2 SCC 9] Page 32 of 36 HC-NIC Page 32 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT
(iii)Om Prakash Vs. State of U.P. [(2006) 9 SCC 787]
(iv) State of M.P. Vs. Dayal Sadhu [(2005) 8 SCC 1222
32. It further deserves to be noted that, even on the first and second day of incident, the doctors who treated the prosecutrix have categorically stated that she was not in a position to give proper statement because of the injuries sustained and because of the trauma of rape being committed upon her. From the evidence in form of deposition of PW:4 Dr. Nisarg Haribhai Patel who was examined at Exh:19, it has come on record that it cannot be ruled out that no rape is committed. IN addition to that, as stated by the prosecutrix in her deposition at Exh:31 that the appellant forcefully took out her clothes and it would be appropriate to note that, in the nikar of the prosecutrix, which was sample No.2, as per the serological report, semen was found which matches with the blood group of the appellant. Further, as per the deposition of the prosecutrix, when she attempted to shout, the appellant tide his shirt on the mouth of the prosecutrix and as per the serological report at Exh:63, human blood is found from the shirt of the appellant which matches with the blood group of the prosecutrix and such injury is even on the lips of the prosecutrix and therefore, from the deposition of the prosecutrix and so also the deposition of complainant Dayaben Vinubhai Gadesiya, and the evidence, which is discussed hereinabove, the prosecution has proved the Page 33 of 36 HC-NIC Page 33 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT case beyond reasonable doubt that the appellant is guilty for the offence under Section 376 of the Indian Penal Code. The evidence adduced by the prosecution is corroborated by the medical evidence as well as serological report, which is sufficient to hold the appellant accused guilty.
33. In light of the aforesaid facts and circumstances of the case, the contentions raised by learned counsel for the appellant deserve to be negatived.
34. Upon reappreciation of the evidence on record, this Court finds that there are no mitigating circumstances, which would lead to a conclusion that the learned Sessions Court has imposed harsh sentence upon the appellantaccused. Though this Court has conscious of the fact that, the appellant was 20 years on the date of offence and 26 years as on today, no leniency needs to be shown to the appellant. As the evidence unfolds, the appellant accused has to say the least behaved and acted upon in inhuman manner and hence, sentence imposed by learned Sessions Court does not require any modification or alteration. Moreover, upon reappreciation of the evidence on record, the statement made by the prosecutrix read with other piece of evidence is found to be worthy of credence and reliable and as the statement of the prosecutrix is reliable, no other corroboration is necessary.
35. After the arguments were over, Mr.Madansingh Barod, learned counsel for the appellant has relied upon the following judgments Page 34 of 36 HC-NIC Page 34 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT
1) Krishan Kumar Malik Vs. State of Hariyana (2011) 7 SCC 130
2) Sanjay Ratilal Chavda Vs. State of Gujarat 2013(3) GCD 1677
3) Thakore Tejaji Devaji & Ors. Vs. State of Gujarat 2006(4) GLR 2807
4) Ali Hasan @ Mallah Vs. State of Uttarakhand 2016(1) SCALE 27902
36. Relying upon the aforesaid judgments, it was contended that the sentence be reduced from life imprisonment to 10 years. As observed hereinabove, this Court has found that there are no mitigating circumstances, which warrants any modification or alteration of the sentence. The judgments which are relied upon, in opinion of this Court, would not be applicable to the case on hand and the same are based upon the facts of these cases. Similarly, the judgment of Krishan Kumar Malik (supra), which is relied upon by Mr. Barod also does not apply to the case on hand as there is no lacuna in the evidence of the prosecutrix and on the contrary, the evidence of the prosecutrix is corroborated and supported by serological report and deposition of PW.7 Dayaben Vinubhai Gadesiya (complainant) and therefore, the same would not be applicable in the facts of the present case.
37. However, in the case on hand, prosecution has also provided corroboration of the statement of Page 35 of 36 HC-NIC Page 35 of 36 Created On Sat Oct 07 06:05:14 IST 2017 R/CR.A/393/2013 JUDGMENT prospection in form of Serological report as well as medical evidence and other prosecution witnesses. Hence, learned Sessions Court has rightly convicted and sentenced the appellant - accused for the offences charged against him and therefore, no interference is called for by this Court. On overall assumption of the evidence and upon its reappreciation, this Court finds that learned Sessions Court is justified in convicting and sentencing the appellant for the offence under Section 376 of the Indian Penal Code also.
38. For the foregoing, present Criminal Appeal being meritless, deserves to be dismissed and is hereby dismissed. The impugned judgment and order of conviction and sentence dated 15.01.2013 rendered by learned 3rd Additional Sessions Judge, Jamnagar, in Sessions Case No.101/2011 is hereby confirmed.
Sd/ (R.M.CHHAYA, J.) Sd/ (A.G.URAIZEE,J) Suchit Page 36 of 36 HC-NIC Page 36 of 36 Created On Sat Oct 07 06:05:14 IST 2017