Gujarat High Court
Arvindbhai Chadubhai Baria & vs State Of ... on 2 February, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/812/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 812 of 2012
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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ARVINDBHAI CHADUBHAI BARIA & 1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR SANDIP M PATEL, ADVOCATE for the Appellant(s) No. 1 - 2
MR HS SONI APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 02/02/2015
ORAL JUDGMENT
1. By way of present Appeal, the appellant challenges the judgment and order dated 29.3.2012 passed by the learned Additional Sessions Judge, Dahod, in Sessions Case No.1 of 2009, whereby the learned Sessions Judge has convicted the appellants - accused for the offences punishable under Section 376 of the Indian Penal Code and ordered to undergo sentence Page 1 of 10 R/CR.A/812/2012 JUDGMENT for a period of ten years rigorous imprisonment for the offence and to pay fine amount of Rs.5000/-, in default of payment of fine, further to undergo simple imprisonment for a period of three months. The accused have been acquitted by the learned Sessions Judge for the charges of offences punishable under Sections 363, 366 and 114 of the Indian Penal Code. The accused have been given set off the period of undergone.
2. Short facts of the case of the prosecution are such that on 2.9.2008, in the morning at 9:30 a.m., the prosecutrix when returning from the college, going to the Government Hospital for check up for mouth ulcer along with P.W.3 Rahul Darji, at that time, at about 2:00 p.m., three persons i.e. appellants and one juvenile accused came there and kidnapped the prosecutrix on motorcycle and then committed rape against her will and consent by the accused persons. Therefore, the prosecutrix filed complaint against the accused and the police booked the accused persons for the alleged offence. 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 Sections 209 of the Code of Criminal Procedure before the Court of Sessions and same is numbered as Sessions Case No.1 of 2009. Thereafter, the learned Sessions Judge framed the charge against the accused. The plea of the accused were recorded wherein they have denied the charge levelled against them. 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 Page 2 of 10 R/CR.A/812/2012 JUDGMENT No. P.W.1 Dr. Anurag Radheshyam Sharma 7 P.W.2 Dr. Ashok Devidas Bachani 11 P.W.3 Rahulkumar Nandlal Darji 15 P.W.4 Maheshbhai Bhurabhai Parmar 16 P.W.5 Victim 17 P.W.6 Ratansinh Fatabhai Bariya 18 P.W.7 Chhatrasinh Vaghabhai Bariya 20 P.W.8 Fulsingbhai Chaturbhai Sangada 21 P.W.9 Chadubhai Sardarbhai Sangada 23 P.W.10 Deepsingbhai Ranchhodbhai Bariya 25 P.W.11 Somabhai Mansingbhai Bariya 26 P.W.12 Maganbhai Parvatbhai Bariya 28 P.W.13 Sartanbhai Bhurabhai Machhar 30 P.W.14 Bhurabhai Terabhai Machhar 32 P.W.15 Jasvantbhai Dalabhai Bariya 33 P.W.16 Ramilaben Deepsingbhai Bariya 34 P.W.17 Punjabhai Vestabhai Tadvi 35 P.W.18 Girvatsinh Kanjibhai Bariya 37 P.W.19 Samabhai Ranchhodbhai Bariya 38 P.W.20 Andarsinh Shakrabhai Patel 39
4. The prosecution has also produced several documentary evidence Viz. complaint at Exhibit 18, Panchnama scene of offence at Exhibit 27, Panchnama - cloth of victim at Exhibit 29, Panchnama - motorcycle of accused at Exhibit 22, Panchnama of place showing by the accused at Exhibit 19, medical certificate of victim at Exhibit 10, Panchnama - recovery of cloths of the accused at Exhibit 31, medical certificate of the accused at Exhibit 9, Identification Parade of the accused at Exhibit 36 and FSL report at Exhibit 48 to prove the case against the accused.
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5. Thereafter, statement under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that they have not committed alleged offence and they have been wrongly implicated in the offence due to enmity. 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. Against the impugned judgment and order, the appellants filed present appeal.
6. Learned advocate Mr. Patel appearing for the appellants - accused read the charge and submitted that it is the duty of the prosecution to prove the offence against the accused. He also submitted that the witnesses examined by the prosecution have not properly supported the case of the prosecution, even though the learned Sessions Judge has imposed the conviction upon the accused. Therefore, the judgment and order of conviction and sentence is required to be quashed and set aside in the interest of justice. He also submitted that in this case, the prosecutrix is not minor and it is a case of clear consent. He further submitted that the story narrated in the complaint is not trustworthy and not inspires confidence to bring the charges against the appellant. He further submitted that the prosecutrix had love affairs with one Rahul Darji, who is P.W.3, and therefore, she wrongly implicated the appellants in the commission of the offence. He further submitted that the material facts were not disclosed by the victim before her parents and uncle, which were stated during course of trial. He further submitted that the victim has narrated concocted story before the lower Court. He also submitted that when the incident took place, at that time, her Page 4 of 10 R/CR.A/812/2012 JUDGMENT boy friend was with her there and the accused along with juvenile accused came there and the accused shown knife (Farsi) and threat administered by the juvenile accused and therefore said boyfriend namely Rahul ran away from that place. Learned advocate further submitted that this story narrated by the victim is not trustworthy and reliable because if the boyfriend of victim was there, then he could resist, when the accused forced upon the victim for taking her away with a view to commit rape. He also submitted that mot of panch witnesses declared hostile and they have not supported the case of the prosecution properly. He also submitted that as per the provisions of Section 27 of the Evidence Act, the panchnama - discovery cannot be considered as proved document. He also submitted that the blood group of the appellants is not proved through the FSL and serological report. He also submitted that the witnesses examined by the prosecution have not established the case against the prosecution by way of any cogent evidence. He, therefore, submitted that the learned Sessions Judge has wrongly convicted the accused and therefore, he prays to allow the Appeal by quashing and setting aside the judgment and order of conviction and sentence imposed by the learned Sessions Judge.
7. Per contra, learned APP appearing for the State supported the impugned judgment and order of the conviction and sentence passed by the learned Sessions Judge. He also submitted that this is a case of gang rape committed on the victim, who was only of 19 years old at the time of incident. The victim was studying in the college and when she was returning from the college, she was going to check up at Government Hospital for mouth ulcer at that time, the accused Page 5 of 10 R/CR.A/812/2012 JUDGMENT persons came there and threat was administered by one of the accused, who is juvenile accused and thereafter, they have kidnapped the victim by showing knife (Farsi) from there and committed gang rape upon her. He also submitted that from the medical documents and evidence of medical officers, it is come out that the semen and blood of the appellants were found on the cloths of the victim as the sample of vaginal swab was sent to the FSL and analysis report was received. He also submitted that in the case of gang rape, question of any kind of consent or any enmity is not required to be considered. 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 order of conviction and sentence.
8. Heard both the parties and considered the records. I have minutely perused the record of the case. It appears that the victim was sitting with her friend, namely Rahul, who is P.W.3 in this case. At that time, the accused including juvenile accused came there and she was kidnapped in the presence of her friend Rahul and then she was taken away by the accused persons on the motorcycle and thereafter, the accused persons committed rape upon. Therefore, this is a case of gang rape and in such type of case, no consent or will of the victim cannot be taken into consideration. Perused the evidence of the witnesses examined by the prosecution. The evidence of the victim is supported by the complaint, panchnama, medical evidence etc. as well as the witnesses examined by the prosecution during the course of trial. As per the provisions of Section 114(A), consent of the victim cannot be considered. Looking to the evidence of P.W.1 and P.W.2, it appears that three persons have committed sexual intercourse with the Page 6 of 10 R/CR.A/812/2012 JUDGMENT victim. They also stated in evidence that there was no mark of injury on the body of the victim and the age of victim was found round about 19 to 21 years. Now, the material witness i.e. the friend of the victim namely Rahul Nandlal Darji examined at Exhibit 15, who has stated in his evidence that he had love affairs with the victim and they were talking with each other, at that time, three persons came there and out of three, one person was having deadly weapon (Farsi) in his hand and that person threatened this witness to leave the place. This witness stated that he has no knowledge what happened after leaving that place by him. He also identified the accused persons. As per the evidence of victim, she went to the hospital for treatment of her mouth ulcer and when she was talking with said Rahul, three persons came there and out of the same, one person was having Farsi in his hand and said accused threatened her friend Rahul to go from that place. Therefore, Rahul left the place and thereafter, two persons pressed her mouth and committed rape by three persons one by one. Thereafter, said three persons run away from that place and the victim, thereafter, was going to Randhikpur Police Station at that time, her uncle was met her and she informed about the incident to him and then she went to Randhikpur Police Station and lodged complaint against the accused. During the Identification Test Parade, she identified three persons, who are accused in the case. Even she identified her cloths when the incident took place. In her cross- examination, she supported her version stated in her evidence as well as in the complaint. Looking to the evidence of other witnesses, the version of the victim is corroborative and therefore, there is no reason to disbelieve the case of the prosecution. Looking to the panchnama of cloths of the victim, Page 7 of 10 R/CR.A/812/2012 JUDGMENT medical papers of the victim and appellants as well as medical report, it is established that blood and semen of the appellants was found on the cloths of the victim and therefore, it can be said that the victim was raped by the appellants and juvenile accused. The contentions of the appellants that there was enmity with the family of the victim is not acceptable because it is not established by the accused and the accused are unknown persons for the victim at the time of incident. Therefore, the contention of enmity raised by the appellants cannot be acceptable. Therefore, it can be said that the victim has not wrongly implicated the accused in the offence. In such type of cases, the contention of late filing complaint is not acceptable.
9. In view of the above, it is established fact that the accused had victimized poor girl and put the victim for a lifetime to live in a critical condition, without self respect. In the traditional non-permissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. It is not the law that in every case, version of the prosecutrix must be corroborated in material particulars by independent evidence on record. The rape is an offence which is violative of fundamental right of a person guaranteed under Article 21 of the Constitution of India. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a female. It is serious blow to victim's Page 8 of 10 R/CR.A/812/2012 JUDGMENT honour and offends her self esteem and dignity and it degrades and humiliates the victim and where the victim is helpless innocent child or a minor it leaves behind a traumatic experience.
10. It appears that the version of the complainant as narrated in the complaint as well as oral evidence of other witnesses including victim, clearly support the case of the prosecution against the accused and therefore, it is established beyond reasonable doubt that the accused committed alleged offence upon the victim and therefore, it can be said that the prosecution has established the case against the accused. Even in the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, the accused could not properly defend himself for the act committed by them upon the victim and also against the evidence produced by the prosecution on record. Therefore, this Court is of the view that the learned Sessions Judge has rightly convicted the accused after considering the evidence on record.
11. In view of the above position, this Court is not inclined to interfere with the findings recorded by the learned Additional Sessions Judge in the impugned judgment and order of conviction and sentence.
12. In the result, the Criminal Appeal is dismissed and the judgment and order dated 29.3.2012 passed by the learned Sessions Judge, Dahod, in Sessions Case No.1 of 2009 is hereby confirmed. Record and Proceedings to be sent back to the concerned trial court forthwith.
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Z.K.SAIYED, J.)
YNVYAS
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