Gujarat High Court
Akbar Rashid @ Rajesh Chandubhai Vasava vs State Of ... on 25 June, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/2186/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 2186 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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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AKBAR RASHID @ RAJESH CHANDUBHAI VASAVA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR P B KHAMBHOLJA, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 25/06/2015
CAV JUDGMENT
Page 1 of 16
R/CR.A/2186/2009 CAV JUDGMENT
1. The appellant is convicted by impugned judgment and order dated 24.09.2009 by the Special Judge of Bharuch in Special Atrocity Case No. 4 of 2009 under Sections 363, 366 and 376 of the Indian Penal Code but acquitted under Sections 3(1)(11) and 3(2) (5) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 giving benefit of doubt. The Sessions Court has awarded 7 years rigorous imprisonment with fine of Rs.5000/-, in default simple imprisonment of 6 months separately for the each offence under Sections 363 and 366 of the Indian Penal Code. The Sessions Court has further awarded 10 years rigorous imprisonment with fine of Rs.1000/-, in default simple imprisonment of 3 months for the offence under Section 376 of the Indian Penal Code and also convicted for 3 years rigorous imprisonment with fine of Rs.500/-, in default simple imprisonment of 3 months for the offence under Section 200 of the Indian Penal Code. However, the Sessions Court has ordered to undergoexecute such imprisonment concurrently and to extend set off of imprisonment already undergone pending trial. It seems that appellant has not paid the fine while filing this appeal.
2. In the impugned judgment, the learned Special Judge of Sessions Court, Bharuch has described the facts of the prosecution case, history of investigation and evidence adduced by the prosecution in detail and, therefore, I do not want to reproduce all such facts which are otherwise very well described in the record. Page 2 of 16 R/CR.A/2186/2009 CAV JUDGMENT The judgment shows that the prosecution has examined as many as 16 witnesses and produced 25 documentary evidence and proved its case.
3. The Sessions Case has been initiated pursuant to complaint registered by one Shabir Suleman on 14.10.2008 before GIDC Police Station at Ankleshwar which is registered as C. R. No. I - 215/2008 under Sections 363, 366 and 376 of the Indian Penal Code because the complainant has specifically disclosed in his complaint that on 14.10.2008 when he reached to the sim of his village Piraman in Ankleshwar taluka on receipt of intimation from his father, he met Sarfaraj Tailor, Usuf Mehta and his father with some other boys where one minor girl of about 5 years was lying with blood on her clothes and on inquiry, she disclosed her name as Varsha Dipak Vasava and confirmed that her father has expired and she is unable to disclose the name of her mother. It is further stated by such minor girl that one man with long hair has kicked her but she was not knowing the name and other details of such man. However, people gathered at the place confirmed that some of them have seen a man with long hair before reaching the place of incident and they can identify him and one Sarfaraz who was sitting near him, has also confirmed that someone has asked him way towards Bhalav and one another person who was driving the tractor in nearby field also confirmed that he saw a man with long hair trying to hide himself. On further inquiry the minor girl has Page 3 of 16 R/CR.A/2186/2009 CAV JUDGMENT disclosed that she had been to the house of her maternal uncle with her mother and when she was playing on road near the house, one man with long hair has tempted her to give a chocolate for eating and taken her to nearby field and after kicking her on ground he has committed unnatural physical attack, which amounts to commission of rape. On her disclosure as above, the complainant has informed the police on phone and thereupon police has reached the place of incident and complainant has lodged a complaint as aforesaid. The Investigating agency has after inquiry and investigation, filed a charge - sheet against the appellant - accused which resulted into his conviction as aforesaid, after full fledged trial by the Sessions Court.
4. I have heard learned advocate Mr. P. B. Khambholja for the appellant and learned APP Mr. K. L. Pandya for the respondent - State.
5. Learned advocate for the appellant has vehemently argued that there is no evidence, so as to confirm such offence as alleged against him, in as much as, there is no evidence to confirm the commission of offence by him and hence sought acquittal of the accused. In the alternative, it is submitted that if at all, considering the factual details, if it is believed that some offence has been committed, when there is no proper evidence to connect the accused with the crime, at least quantum of sentence may be Page 4 of 16 R/CR.A/2186/2009 CAV JUDGMENT reduced upto the imprisonment already undergone by the appellant which is more than 6 years.
6. I have perused the entire record in the form of paper-book which contains all the evidence both oral and documentary as well as submissions by the defence counsel before the trial Court which is part of the paper book and citations referred by the defence counsel before the trial Court because practically learned advocate for the appellant has relied upon the same set of defence which is otherwise not believed by the trial Court.
7. Considering the nature of incident and details of the victim instead of reproducing the details and history, both of the crime and investigation, it would be appropriate to scrutinize the appreciation of evidence by the trial Court, so as to ascertain that whether conviction is just and proper or that it requires interference in this appeal wherein though appeal is admitted by an order dated 20.01.2010, the division bench of this High Court has declined to release the petitioner on bail considering the nature of offence and available evidence.
8. PW No.1 at exhibit 6 is a complainant. Since facts of complaint is narrated herein above, instead of repeating this story it is sufficient to record that complainant has perfectly supported his version in his deposition. Though he was cross - examined at Page 5 of 16 R/CR.A/2186/2009 CAV JUDGMENT length, the defence could not rebut his evidence or to prove innocence.
9. PW No.2 at exhibit 8 Firozbhai Ahmadbhai Mulla, who was referred as a person driving tractor in nearby field from the place of incident by the complainant in his complaint and, therefore, he is the person who has seen the accused hiding and trying to run away from the place of incident. He has specifically deposed on oath before the trial Court regarding his attempt to catch the person who was found at the place of incident near the victim but confirmed that since his land owner did not agree to identify him as a thief, he allowed him to go but thereafter a group of boys have inquired about the same person disclosing that he has committed rape on minor girl, thereby identity of the accused was established. He confirmed that he identified the accused in the identification parade before Mamlatdar and also before the Court. Though he was cross - examined at length, the defence could not rebut his evidence or prove innocence.
10. PW No.3 at exhibit 9 is Usufbhai Sulemanbhai Umiya, owner of the land where PW No.2 was working on a tractor and, therefore, his deposition is in parity of PW No.2, where he confirmed everything which was narrated by PW No.2 including identification of the accused, both before the Mamlatdar as well as before the Court. Though he was cross - examined at length, the Page 6 of 16 R/CR.A/2186/2009 CAV JUDGMENT defence could not rebut his evidence or prove innocence.
11. PW No.4 at exhibit 10 is Vaiullah Yakub Patel who was one of the panch witness of the panchnama of the place of incident, from where police has collected some sample of land having blood. This witness has supported the panchnama and described in detail the activity perfectly clarifying all contents of panchnama as well as slip attached with the sample at exhibit 16 and 15 respectively. In his cross - examination, the defence could not rebut his evidence or prove innocence.
12. PW No.5 at exhibit 17 is Babubhai Amratbhai Prajapati with whom accused was serving at some point of time and, therefore, this witness has identified him as Akbar Rasid Shaikh whereas accused has disclosed his name as Rajesh Chandubhai Vasava. The witness has examined this witness and he has practically supported the case of prosecution as per his statement. The witness has confirmed that accused was mis-appropriating the money received by him for cable connection and, therefore, he has discontinued him from his services. In his cross - examination, the defence could not rebut his evidence or prove innocence.
13. PW No.6 at exhibit 18 is Sumanben Mohanbhai, who is Aunt - mother's sister of the victim and she confirmed the abduction of victim from the compound of her house. In her cross - Page 7 of 16 R/CR.A/2186/2009 CAV JUDGMENT examination, the defence could not rebut her evidence or prove innocence.
14. PW No.7 at exhibit 19 is Babubhai Chimanbhai Patel who is panch witness of clothes of the victim. He also supports the investigation and proves the panchnama at exhibit 20. In his cross
- examination, the defence could not rebut his evidence or prove innocence.
15. PW No.8 at exhibit 24 is Dr. Santosh Jakariyas Kodithotil, who has examined the victim immediately on the same day i.e. on 14.10.2008 at about 8:45 p.m., who confirmed that there was injury on vagina of the victim and confirmed that such injury is possible by forcible intercourse. It becomes clear that such act is nothing but a heinous crime. Doctor has further confirmed that the girl was though conscious, was disturbed and afraid and considering the nature of injury and age of the victim, he referred her to Civil Hospital, Bharuch since he was only a Medical Officer at Jayaben Modi Hospital at Ankleshwar. He proves the communication at exhibit 25 and case papers at exhibit 26. In his cross - examination, the defence could not rebut his evidence or prove innocence.
16. PW No.9 at exhibit 27 is Dr. Binoilumar Taraknath Sharma, Medical Officer of Civil Hospital, Bharuch, who has examined the Page 8 of 16 R/CR.A/2186/2009 CAV JUDGMENT victim on same day i.e. on 14.10.2008 at 11:20 p.m., where she was brought with police yadi which is proved on record at exhibit 28. He recorded the history disclosed by PW No.6 being Aunt of the victim that she has been raped with other details and history and thereafter he examined the victim and issued a certificate which is proved at exhibit 29. In his deposition he has disclosed all the injuries which is confirmed by him in his certificate, which reconfirms that victim has injury on her private part with bleeding. He confirms that since gynecologist was on leave, he has to examine the victim and opined that victim has been raped though in certificate he stated that there was an attempt of rape only because of absence of sperm in the vagina. It cannot be ignored that victim is only 5 years of age and size of vagina may not be suitable for complete intercourse and for discharging the sperm inside the vagina. But overall there was abduction and then sexual harassment of girl of only 5 years of age and there are injuries on private part, which certainly amounts to rape. Unfortunately, Doctor has become too technical both in issuing certificate and deposition before the Court though he has no option but to admit in para 17 of his deposition that in some cases even after successful intercourse there may be absence of sperm and if there is forceful intercourse, there would such injuries and that in some cases, sperm wipe out with the bleeding. In his cross - examination, the defence could not rebut his evidence or prove innocence. However, the only suggestion, which would otherwise negativate Page 9 of 16 R/CR.A/2186/2009 CAV JUDGMENT such injuries are possible because of some hard substance. Even in that case, it would be the responsibility of the accused to explain that how and why he was running out of the place of the incident where minor girl was found with such injuries instead of helping her to reach her house or doctor as done by complainant and other witnesses. Therefore, instead of behaving like a prudent man, if accused has behaved like a criminal, there would certainly presumption against him, considering the overall evidence as a circumstantial evidence when victim is just 5 years old and when she was abducted from a place nearby from her house.
17. PW No.16 at exhibit 48 is Medical Officer of SSG Hospital, Vadodara namely Dr. Nazima Abdullatif Shaikh. She has examined the victim and reconfirmed the factual details which are recorded herein above while scrutinizing medical examination of the victim by previous doctors and, therefore there is nothing new to be added by this witness except confirming injuries and position of the victim after the incident. The only addition is to the effect that because of heavy bleedings victim became weak and they have to take stitches at the private part of the victim because it was ruptured. This shows gravity of offence. In her cross - examination, the defence could not rebut her evidence or prove innocence.
18. PW No.10 at exhibit 30 is Parsottambhai Haribhai, Page 10 of 16 R/CR.A/2186/2009 CAV JUDGMENT Mamlatdar, who has conducted identification parade. He has narrated his activity in detail and proved the relevant documentary evidence pertaining to such identification parade. In his cross - examination, the defence could not rebut his evidence or prove innocence.
19. PW No.11 at exhibit 34 is Ranjitsinh Anopsinh, police constable who has visited the place of incident, on instructions of Police Inspector. Therefore, he has narrated his activities perfectly. In his cross - examination, the defence could not rebut his evidence or prove innocence.
20. PW No.12 at exhibit 36, is victim, who is minor and her evidence is recorded in camera. Before recording her evidence, trial Court has confirmed that she is able to reply to the questions put to her. It is her say before the Court in presence of accused, his lawyer and public prosecutor that when she was at the house of her maternal uncle, the accused, who was identified by her, has dragged her to nearby field and removed payjama and committed unnatural act with her because of which bleedings was started and thereafter when a group of people has noticed her, they have taken her to hospital and she did not realize that how much time was lapsed in all such things, since she is of 5 years old. However, so far as commission of offence is concerned, she has categorically disclosed relevant information in nutshell which is not required to Page 11 of 16 R/CR.A/2186/2009 CAV JUDGMENT be reproduced every now and then. In her cross - examination, the defence could not rebut her evidence or prove innocence. However, the scrutiny of cross - examination makes it clear that instead of proving innocence by the accused in cross - examination, it confirms the commission of offence by the accused and accused alone because even in cross - examination a question was asked to her which is recorded in the form of question and answer that who has dragged her? She has raised her finger against appellant - accused and in question that how there was bleedings from her private part, she again raised finger against the accused. Thereby answered that bleedings resulted because of the accused. In a question that who taught you to say so in the Court, she denies and confirms that nobody had taught her to depose in such manner. 20.1 In view of entire evidence, even if there are few sentence recorded by the trial Court that she had been to Court room and police has explained her and conveyed her to identify the accused, it has no bearing with entire prosecution case; both direct and circumstantial evidence.
21. PW No.13 at exhibit 37 is Police Inspector Ajitkumar Dayashankar Shrivastav. He has narrated the entire factual details, history of investigation and proved relevant documents regarding caste of the victim confirming that since investigation is also under the Atrocities Act, further investigation is carried out by Dy.S.P. To Page 12 of 16 R/CR.A/2186/2009 CAV JUDGMENT identify the accused, the witness being Investigating Officer has deposed that they have called dog squad at the place of incident and after smelling the place of incident, dog has gone upto the field of Usuf Suleman and thereafter stopped there and thereupon they identified the accused and confirmed his identity from statements of witnesses, who are referred herein above and who have seen the accused either hiding or running from the place of incident and thereupon he managed the identification parade after getting the sketch prepared as per information gathered during investigation and when a person as per that sketch and information disclosed by the witnesses was caught, he has said that his name is Rajesh Chandubhai Vasava and he is residing at Khanji Patel's chawl at Kosamba but ultimately it was found that his real name is Akbar Rashid Shaikh as per evidence of his previous employer. He explained the activities carried out during investigation including identification parade. In his cross - examination, the defence could not rebut his evidence or prove innocence.
21.1 The only evidence in favour of the accused in this deposition is in the form of birth date certificate of the accused, which was inquired by the Investigating Officer and now proved at exhibit 41, disclosing that accused is Akbar Rashid and not Rajesh Vasava as claimed by him. However, it does not change the situation whatsoever.
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22. PW No.14 is Bhimjibhai Shakrabhai Ninama, Dy.S.P. Who has further investigated the offence pursuant to provisions of Atrocities Act has narrated his part of investigation and proved FSL report at exhibit 43. However, considering deposition of doctor as PW Nos. 8, 9 and 16, FSL report is not much material, in as much as, considering the age and thereby size of the private part of the victim and immediate bleeding at the time of offence, there is possibility of negative FSL report and only because FSL report is negative, accused cannot prove his innocence when other circumstantial evidence as well as direct evidence regarding his identity are against him. In his cross - examination, the defence could not rebut his evidence or prove innocence.
23. PW No.15 at exhibit 45 is police head constable Vinodbhai Shankarbhai. He simply proves the clerical activities within police station regarding inquiry and investigation including some entries in the police station and, therefore there is no controversy in his deposition. In his cross - examination, the defence could not rebut his evidence or prove innocence.
24. Thereby the entire evidence specifically proves the commission of offence as alleged in the oral and documentary evidence on record. Therefore, now it is for the accused to select his defence and to prove it. So far as connection and involvement of the accused is concerned, it is proved by the evidence regarding Page 14 of 16 R/CR.A/2186/2009 CAV JUDGMENT identity of the accused in different form viz. reaching of dog to his place, sketch prepared as per the information disclosed by the persons, who have noticed the accused either hiding or running from the place of incident and identification by them including confirmation and identification by the victim as recorded herein above.
25. Since learned advocate for the appellant is relying more on memorandum of arguments of the accused before the trial Court, I have perused the same wherein the defence lawyer before the trial Court has tried to prove that there is no scope of proper identification of any person and, therefore, identification of appellant - accused is not proper. It is also contended that though there is reference of Sarfaraz, prosecution has not examined him and there are some contradictions in depositions of some of the witnesses. However, scrutiny of evidence as a whole, makes it clear that because of few minor contradictions here and there, by and large all the prosecution witnesses have supported the case of prosecution and appellant could not prove his innocence during cross - examination of any such witness. It is clear and obvious that when appellant is claiming total innocence, he could not prove any probable defence, casting doubt in evidence of prosecution so as to confirm acquittal or even give him benefit of doubt.
26. I have also perused the citations referred by the defence Page 15 of 16 R/CR.A/2186/2009 CAV JUDGMENT lawyer before the trial Court, but none of such citations confirmed that even if there is proper evidence, only because of conviction based upon circumstantial evidence, accused should be extended either acquittal or benefit of doubt. It cannot be ignored that all such judgments confirmed the acquittal only because of non - availability of evidence to prove the involvement of the accused in those cases. When there is no such situation in the present case and thereby when there is specific and clear evidence regarding commission of offence as alleged, I do not find any substance in the appeal either to acquit the accused or to reduce the sentence.
27. I have also gone through the impugned judgment wherein the trial Court has properly appreciated its evidence and reasons to confirm the commission of offence and thereby guilt of the accused, thus convicting the accused as discussed herein-above. Therefore, I do not see any illegality, irregularity or perverseness in the impugned judgment of his conviction. Hence, appeal deserves to be dismissed and the same is hereby dismissed. Records and Proceedings be sent back to the trial Court.
(S.G.SHAH, J.) drashti Page 16 of 16