Gujarat High Court
Ghelabhai Kabhaibhai Zala vs State Of ... on 9 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/291/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 291 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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GHELABHAI KABHAIBHAI ZALA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR IM PANDYA, ADVOCATE for the Appellant(s) No. 1
MR HS SONI APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 09/01/2015
ORAL JUDGMENT
1. By way of present Appeal, the appellant challenges the judgment and order dated 6.2.2010 passed by the learned Additional Sessions Judge, Kheda at Nadiad, in Sessions Case Page 1 of 7 CRIMINAL APPEAL/291/2010 14/01/2015 01:43:06 AM R/CR.A/291/2010 JUDGMENT No.64 of 2009, whereby the learned Sessions Judge has convicted the appellant - accused for the offences punishable under Sections 376 and 506(2) of the Indian Penal Code. The learned Sessions Judge ordered the appellant - accused to undergo sentence for a period of 10 years rigorous imprisonment for the offence punishable under Section 376 of the Indian Penal Code and to pay fine amount of Rs.10000/-, in default of payment of fine, further to undergo rigorous imprisonment for one year. The appellant was further ordered to undergo sentence for a period of one month rigorous imprisonment and to pay a fine of Rs.100/-, in default of payment of fine, further rigorous imprisonment for 10 days, for the offence punishable under Section 506(2) of the Indian Penal Code. All the sentences shall run concurrently.
2. Brief case of the prosecution is as such that the victim married before 10 years from the incident and out of wedlock, the victim has four children. As per the case of the prosecution, the appellant - accused was friend of the husband of the victim. On 8.5.2009 at about 11:00 at night, the accused came near the hut and called the victim by shouting that the victim was called by her husband therefore, the victim came out and at that time, her brother-in-law (Diyar) was sleeping in the hut. The victim when came out from the hut, she found the accused alone and at that time, the accused gagged her mouth and dragged her into the field of bajra and committed rape upon her. After committing rape upon the victim, the accused gave threat not disclosed the fact to any one. On next day, the victim informed her husband about such incident. Therefore, on 1.5.2009, the complaint being C.R. No.I 42 of 2009 for the offences punishable under Sections 306 and 506(2) of the Indian Penal Code was registered against the Page 2 of 7 CRIMINAL APPEAL/291/2010 14/01/2015 01:43:06 AM R/CR.A/291/2010 JUDGMENT accused, with Kapadwant Town Police Station. The police drew arrest panchnama. Thereafter, the investigating officer has filed the charge-sheet against the accused and the offence was exclusively triable by the Sessions Court, the case was committed under Section 209 of the Code of Criminal Procedure before the Court of Sessions and same is numbered as Sessions Case No.64 of 2009. Thereafter, the learned Sessions Judge framed the charge against the accused. The plea of the accused was recorded wherein he has denied the charge levelled against him. Therefore, the trial has been conducted against the accused.
3. To prove the case against the accused, the prosecution examined following witnesses :
Sr. Name of the witnesses Exhibit
No.
P.W.1 Dr. Manubhai Halubhai Gadhvi Medical 9
Officer
P.W.2 Jalpaben Himmatbhai Takhabhai Zala/victim 16
P.W.3 Himmatbhai Takhabhai Zala, husband of 18
victim
P.W.4 Pravinbhai Budhabhai Zala, Panch witness 22
P.W.5 Daljibhai Rupjibhai - PSO 24
P.W.6 Tahirmiya Nizammiya Malek - I.O. 26
P.W.7 Jesingbhai Gokalbhai Zala, Panch witness 34
P.W.8 Jigar Bharatbhai Pandit, I.O. 36
4. The prosecution has also produced documentary
evidence, which are as under :
Sr. Documents Exhibit
No.
1 Complaint 17
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R/CR.A/291/2010 JUDGMENT
2 Panchnama - scene of offence 23
3 Panchnama - cloth of victim 35
4 Panchnama - cloth of accused 21
5 Medical Certificate of accused 13
6 Medical certificate of the victim 12
7 Ravangi Nondh 27
8 Receipt of FSL 28
9 Letter of FSL 29
10 Report of FSL 30
11 Serological report FSL 31
5. Thereafter, statement under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that he is innocent and he has not committed alleged offence and he has been wrongly implicated in the offence. After hearing at length and on perusal of the evidence on record, the learned Sessions Judge observed that the prosecution has proved the case against the accused beyond reasonable doubt and therefore, learned Sessions Judge passed the order of conviction as stated hereinabove.
6. Learned advocate Mr. Pandya appearing for the appellant
- accused submitted that this case of simple consent of the victim and there was physical relationship of the victim with the accused. He also submitted that from the cross- examination of the victim and other witnesses, it is established that it is clear case of victim and therefore, the accused has not committed any offence. He also submitted that the victim is not minor and she is mother of four children. He also submitted that the complaint was filed after 7 days from the incident. He, therefore, prays to dismiss the Appeal by quashing and setting aside the judgment and order of Page 4 of 7 CRIMINAL APPEAL/291/2010 14/01/2015 01:43:06 AM R/CR.A/291/2010 JUDGMENT conviction and sentence imposed by the learned Sessions Judge.
7. Learned APP appearing for the State supported the impugned judgment and order of the conviction and sentence passed by the learned Sessions Judge. He read the serological report at Exhibit 31 and evidence of victim P.W.2 at Exhibit 16 and submitted that a per the oral evidence of the victim herself that when she was sleeping in her hut with her children and at that time, in the hut, her brother-in-law (Diyar) was also sleeping, at that time, the victim was called by the appellant accused by saying that her husband was calling her at her uncle's house. So the victim was come out from the hut and thereafter, she was forcefully taken away by the appellant and committed sexual intercourse upon her. He further submitted that looking to the panchnama of the cloth of the victim and physical condition of the victim, it appears that the appellant accused committed rape upon her. He also submitted that the victim is married woman and she has children and living her peaceful family life and therefore, there is a question of the honour of the family in such type of case and therefore, complaint was filed later on against the accused. He also submitted that it is not established by the defence that this is a case of consent. He also submitted that the looking to the evidence of witnesses examined by the trial Court, it clearly appears that the victim was raped by the appellant accused and therefore, it can be said that the alleged offence was committed by the appellant. He therefore, submitted that learned Sessions Judge has rightly convicted and sentenced the appellant - accused. He, therefore, submitted that no interference is required to be called for as the learned Sessions Judge has recorded just and proper reasons while passing the Page 5 of 7 CRIMINAL APPEAL/291/2010 14/01/2015 01:43:06 AM R/CR.A/291/2010 JUDGMENT order of conviction and sentence.
8. Heard both the parties and considered the records. From the complaint, it appears that the victim, who is married lady, along with her four children was in the hut. At that time, the appellant came there and shouted outside the hut that the victim was called by her husband. Therefore, the victim came out from the hut and thereafter, the appellant gagged her mouth and dragged her into field of Bajra, where the appellant
- accused committed rape upon her. Thereby, the appellant - accused committed rape on her. Thereafter, the appellant administered threats to the victim for not saying his such act to anyone. It appears that the victim gave case history before the Medical Officer, wherein she stated that the appellant committed rape on her and then the accused changed cloths. As per the ratio laid down by so many Courts including Hon'ble Supreme Court, the evidence or the case that is given before the Court or the Medical Officer is sufficient to prove the case against the appellant. From the evidence of the victim herself, it appears that the appellant accused called the victim outside the hut and gagged her mouth and dragged her into bajra field and committed rape upon her and then, the appellant threatened the victim for not saying anything to anyone. That narration of the victim from her evidence, is corroborating by the complaint, panchnama etc. and evidence of other witnesses. Looking to the evidence of other witnesses, the witnesses examined by the trial Court have narrated same facts before the Court and therefore, the prosecution has proved the case against the accused beyond reasonable doubt. Looking to the serological report, there are blood stains on the cloth of victim, having 'A' group, mixed with semen. Same is supported by the FSL report as blood and semen of the Page 6 of 7 CRIMINAL APPEAL/291/2010 14/01/2015 01:43:06 AM R/CR.A/291/2010 JUDGMENT appellant accused. So far as the complaint, which was lodged after 7 days is concerned, here the offence is of rape and therefore, it is believable that considering the honour of the victim and her family members, generally, the complaint is to be lodged after some consideration. Therefore, the submission of lodging the late FIR is not acceptable. Even here the case is not of the consent, because the averments narrated in the complaint is that the appellant called the victim outside the hut and thereafter, he gagged her mouth and dragged the victim into the bajra field and committed intercourse against her will wish.
9. In view of the above position, this Court is not inclined to interfere with the findings recorded by the learned Sessions Judge in the impugned judgment and order of conviction and sentence, as the learned Sessions Judge has rightly convicted the accused for the alleged offence.
10. For the reasons recorded in the judgment, the Criminal Appeal is dismissed and the judgment and order dated 6.2.2010 passed by the learned Sessions Judge, Kheda at Nadiad, in Sessions Case No.64 of 2009 is hereby confirmed. Record and Proceedings to be sent back to the concerned trial court forthwith.
(Z.K.SAIYED, J.) YNVYAS Page 7 of 7 CRIMINAL APPEAL/291/2010 14/01/2015 01:43:06 AM