Gujarat High Court
State Of Gujarat vs Bhoja Lakhman Vasan Koli & on 27 August, 2013
Bench: Akil Kureshi, R.P.Dholaria
STATE OF GUJARAT....Appellant(s)V/SBHOJA LAKHMAN VASAN KOLI R/CR.A/961/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 961 of 2010 With CRIMINAL APPEAL NO. 1545 of 2010 With CRIMINAL APPEAL NO. 185 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA =========================================================== 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 ? ================================================================ STATE OF GUJARAT....Appellant(s) Versus BHOJA LAKHMAN VASAN KOLI & 1....Opponent(s)/Respondent(s) ================================================================ Appearance: MR H L JANI, APP for the Appellant(s) No. 1 MR KI KAZI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 MS SADHANA SAGAR, ADVOCATE for the Opponent(s)/Respondents No. 1 - 2 R NITIN T GANDHI, ADVOCATE for the Opponent(s)/Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 27/08/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) These appeals arise out of common judgement dated 22.04.2010 rendered by learned Additional Sessions Judge, Junagadh in Sessions Case No. 24 of 2009. By the said judgement, the learned Judge was pleased to convict both the accused for offence under Section 376 read with Section 114 of IPC. They were sentenced to rigorous imprisonment for seven years and were also ordered to pay fine.
Briefly stated the prosecution version was that:
2.1 Victim, the daughter of the first informant, who was aged about 30 years, was mentally unstable. She used to often roam around in the village and nearby areas. The accused, taking advantage of her mental illness and seclusion of the afternoon time, conniving with each other took her in a nearby field which had a standing crop of sorghum in the afternoon of 22.01.2009. Accused No.1 had sexual intercourse with her against her wish. Accused No.2 was also present there all throughout. Father, mother and a relative of the victim, who had gone out in connection with post death ceremony in the family, were, in the meantime, returning in a chhakado rickshaw.
Mother of the victim saw her when accused No.1 was actually committing rape on her. Accused No.2 was sitting besides them with his choini (tight pants like breeches) down. She, therefore, immediately with her husband rushed to the spot.
2.2 An FIR was lodged on the next day with the nearby police station. The investigation was carried out. Both the accused were arrested. Statements of the witnesses were recorded. Muddamal articles were sent for forensic analysis. Charge-sheet was presented and the case was committed for sessions trial.
3 Charge was framed at Exh. 3 alleging that, on 22.01.2009, at about 12 O'clock, the accused, taking advantage of the deserted afternoon time and mental illness of the victim, committed rape on her in a field in the sim of village Bagasra near Godadhar village.
4.1 Satiben Jinabhai, P.W. 4, the first informant and mother of the victim was examined at Exh. 32. She deposed that the victim, was mentally ill. She was divorced within one year of her first marriage. The husband of the second marriage died of T.B. After his death, her daughter lost mental balance. She was residing with her and her husband.
4.2 On the date of the incident, she, along with her husband and nephew, had gone to village Aantroli to attend to post death ceremony in the family in a chhakado rickshaw. They started their return journey at about 11 O'clock. They were sitting on the wooden platform. When they reached near Bagasra, they came by a field which was previously owned by them. Presently, the field was owned by Kalubhai which they were cultivating. When they were passing by this field she saw that her daughter was lying with accused No.1 Bhoja Laxman on top of her. Accused No.2 Parbat was near them. She, therefore, went there. Her daughter's petticoat was lifted up and accused No.1 with his pants down had penetrated her. Accused No.2 Parbat was sitting there with his pants down. When she went the accused ran but they managed to catch accused No.2. Accused No.1 escaped. They took their daughter home. Next day police complaint was filed. The incident was also seen by her husband and her nephew. She explained that they had to go in search of the victim due to which they could not lodge the FIR on that very day. She identified both the accused before the Court. The first information report lodged by her was produced at Exh. 33.
4.3 In the cross examination she agreed that in the field, where the incident took place, there was sorghum and gram crop standing. But she stated that the sorghum crop was only waist high.
She agreed that on the date of the incident they had locked up the daughter inside the house but stated that her daughter-in-law was at home and gone to the field to give food. She further stated that by jumping over a wall it would be possible to escape from the house. She stated that from her village Godadhar, the place of the incident is barely 4-5 fields away. She agreed to the suggestion that the victim often used to go to the said field. She denied that the accused were falsely implicated to hide the identity of the real culprits who were some family members.
5.1 Jinabhai, P.W. 5, Exh 35, the father of the victim also gave similar version. He deposed that his daughter was mentally unstable since 4-5 years. She was residing with them since her husband of the second marriage died of T.B and she became mentally ill. He along with his wife and nephew had gone to Aantroli village to attend post death ceremony. When they were returning to their village, at about 12 O'clock, they were passing by the field which they were cultivating. His daughter was there. One person was raping her. Another person had loosened his pants. They found that accused No.1 was actually raping her and the other person was accused No.2. The witnesses identified both the accused before the Court. They had caught accused No.2 at the spot.
5.2 In the cross examination, he stated that the sorghum crop was about 4 ft high. On the day of the incident, they had locked up the victim in the house.
6.1 Dr. Lineshkumar Savdasbhai Makwana, P.W. 1, Exh. 9 had examined the victim. He was the Medical Officer at Mangrol Health Center. He deposed that, on 23.01.2009, the victim was brought to her. He did not notice any injuries on her. He had collected her samples of blood, saliva, pubic hair, vaginal swab, nails etc. He had also sealed the clothes of the victim such as her sari, blouse and petticoat and handed over to the police.
6.2 This doctor had also examined both the accused. The accused were brought to him on 24.01.2009 alongwith police yadi. He had collected their blood samples, semen, saliva, pubic hair etc. as also their clothes and handed over to the police in sealed parcels.
6.3 In the cross examination, he agreed that neither on the body nor on the private parts of the victim any injuries were found.
7 Dr. llyas Hasanbhai Gariba, P.W. 3 Exh. 20 was the Medical Officer at Mangrol. On 24.01.2009, the victim girl was referred to him for examining her mental condition. He deposed that since he was not an expert in psychiatry, he had referred the victim to the Government Hospital, Jamnagar. During his examination, since he suspected that she was mentally unstable, he had so referred her.
8.1 Accordingly, the victim was examined by Dr. Mukeshbhai Keshubhai Patel, P.W. 2 Exh. 19. He was working as Associate Professor in the psychology Department of PDU Hospital, Rajkot. He deposed that the victim was brought to him by the police at the hospital on 04.02.2009. He had examined the victim and had found that she was suffering from disorganized schizophrenia. He had, therefore, certified that her insanity required a prolonged treatment. The patient, however, had not returned for such further treatment. The certificate issued by him was produced at Exh. 27. He deposed that the patient had such illness since long time before she was brought to him. She was unable to differentiate between good and bad. When asked whether, if someone committed intercourse on her would the patient be in a position to understand the repercussion thereof, he answered in the negative.
8.2 In the cross examination, he denied that the patient was not suffering from insanity.
9 Test Identification Parade was carried out in presence of Executive Magistrate, Aarti P.W. 9, Exh. 49. The panch witnesses to such Test Identification Parade panchnama, Kamal Hasan Kalwat, P.W 6, Exh. 36 supported the prosecution and deposed that both the complainants had identified accused from out of nine persons lined up.
10 The Executive Magistrate, Ms. Aartiben Prafulbhai Vyas, P.W. 9 also gave a detailed account of the manner in which, the test identification parade was carried out. Along with nine dummy persons both the accused were allowed to stand where they wanted. Both the complainants successfully identified the accused.
11 Bhimabhai Gigabhai Odedara, P.W. 7, Exh. 42 was the panchwitness of the scene of the incident. From the site under such panchnama, one loongi ( a long piece of cloth tided around the waist) and one turban were recovered.
12 Kirtisinh Bharatsinh Chudasma, P.W. 11, PSI was examined at Exh. 54. He had, initially investigated the case and arrested the accused. Remaining investigation was completed by Thakardas Kashiram Gondalia, P.W. 12, Exh. 56. He had sent various articles to the FSL for analysis. Samples of the accused and their clothes were collected under punchnama and the respective panchas Vinubhai Desabhai Vaghela, P.W. 13 and Ghanabhai Jivabhai Vaja, P.W. 14, supported the prosecution.
13 This, in the nutshell is the evidence on record. Learned Trial Judge, as noted to above, held both the accused guilty of offence punishable under Section 376 read with Section 114 of IPC and sentenced them to rigorous imprisonment of seven years. Accused No. 1 has filed Criminal Appeal No. 185 of 2012 challenging his conviction and sentence. Accused No. 2 has filed Criminal Appeal No. 1545 of 2010 challenging his conviction and sentence. The State has preferred Criminal Appeal No. 961 of 2010 seeking enhancement of the sentences of both the accused.
14 We may first attempt to appreciate the evidence on record. It has come through cogent evidence that the victim was a person of unsound mind. Quite apart from such deposition of her mother Satiben Jinabhai, P.W. 4, and father Jinabhai, P.W. 5, we also have medical evidence to support this. We may recall that Dr. Ilyas, P.W. 3, the Medical Officer at Mangrol, had referred the victim for her mental condition, upon which, the police had brought her before Dr. Mukesh Patel the Associate Professor in the Psychology Department of PDU Hospital, Rajkot. During his examination, he had found her suffering from disorganized schizophrenia. He had certified that she was suffering from insanity. He had stated that she would be so suffering since long time before she was brought to him. She was unable to discern between good and bad and would not be in a position to understand the repercussion of sexual intercourse.
15. There was no serious cross examination on the question of mental condition of the victim to any of these witnesses. Whatever the cross examination, nothing significant came out of it. We may, therefore, safely proceed on the basis that the victim was suffering from mental illness. In fact, her parents had stated that they would have to lock her up when she was left alone at her home. Her mother had also stated that soon after the rape also she had wandered of and they had to go in search of her to bring her back. One thing is, therefore, very clear that the victim was mentally not normal.
16. In view of such disturbed mental condition of the victim, we do not have the benefit of her deposition. Instead, in the present case, her mother and father were examined as eyewitnesses. In particular, Satiben Jinabhai, P.W 4, gave detailed account of the incident. She herself, her husband and nephew had gone to a nearby village for a post death ceremony. While returning in a chhakdo rickshaw, they passed by a field which was under their cultivation. She saw that her daughter was lying on the ground with accused No.1 on top of her. Accused No.2 had removed his pants. She, therefore, rushed to the spot and found that accused No.1 was raping her daughter. Accused No.2 was sitting nearby with his pants down. Similar version was also given by the father of the victim Jinabhai, P.W. 5. He was also with Satiben Jinabhai in the same chhakdo rickshaw.
17. When test identification parade was carried out, both the witnesses, P.W. 4 and 5 had identified the accused before the Court.
18. In view of such clear evidence we have no reason to disbelieve the prosecution version. Both these witnesses had deposed that accused No.1 was raping the victim in their field and accused No.2 was sitting nearby with the clothes of his lower part of the body removed. Nothing significant has come out in the cross examination of these witnesses. There was no previous history of animosity or ill-will between the two sides. There was absolutely no reason to falsely implicate these accused. The incident took-place in the afternoon in broad day light. If the witnesses had properly looked at the accused, they would certainly be in a position to identify them even though there may not be any familiarity between the two previously. In fact, the accused belonged to village nearby the village of the complainant. It may be argued how the complainant saw the incident from a moving vehicle. We must however remember that they were traveling on a village road and chakado rickshaw itself is not a fast moving vehicle. Further, the incident took place on the field which previously belonged to the complainants' family and was presently under their cultivation. While passing by such field occupied by their standing crop, if even out of natural interest the complainant was looking towards the field attentively and in the process spotted the accused and her daughter in an awkward position it is hardly surprising.
19. Some doubt was raised by the counsel for the accused regarding the place of the incident. She argued that the incident took place in village Bagasara. The victim was living in village Gondal. To our mind, this by itself is not significant since it has come on record that these two villages are adjacent to each other. The incident happened in an agricultural field in the sim of village Bagasara. P.W. 4 Satiben Jinabhai stated that such field was barely 4 or 5 fields away from their house. The field in question, we may recall, was under cultivation of the complainant and her family. The victim was in the habit of wandering, due to which, she had to be locked up when alone at home. It is therefore, not difficult to imagine that she could have wandered off before she was dragged in the field by the accused.
20. Eyewitnesses' accounts received corroboration from the forensic reports. The police had collected the clothes of the victim as well as of accused No. 1 and 2. Various samples from their bodies such as blood, semen, saliva of the accused and vaginal swab of the victim were collected and sent for analysis. Two pieces of clothes, collected from the spot, were also sent for analysis. The FSL report, Exh. 60 read with serological report Exh. 62 would reveal the following details:
(i) Petticoat of the victim was detected with various stains of semen of Group B;
(ii) Vaginal swab from the victim also indicated presence of semen of Group B;
(iii) Loongi collected from the spot had various stains of semen of Group B;
(iv) The pants and the under-pant of accused No.1 discloses presence of semen of Group B;
(v) The pant and under-pant of accused No.2 indicated presence of semen of Group AB;
(vi) The victim had blood Group B, accused No. 1 had blood Group B and accused No. 2 had blood Group AB.
21. The serological report thus completely corroborates the version of the eyewitnesses. Accused No. 1 was found actually raping the victim and accused No. 2 was sitting next to them with his pants down. It was because of this that semen of accused No. 1 was found from his own pants and underpants as well as from the clothes of the victim and the vaginal swab as also from the loongi lying nearby the scene of the offence. Semen of accused No.2 was not found either from the body of the victim or any of the clothes worn by her. Nevertheless his clothes were soiled with such semen. These reports thus totally confirm the eyewitnesses' version. The serological report confirms completed actual act of intercourse by accused No.1 whereas accused No.2 discharged his semen on his own clothes sitting next to the victim when accused No. 1 was having intercourse.
22. Looking to such evidence, we have absolutely no hesitation in holding that accused No.1 had actually committed rape on the victim and accused No.2 had abetted commission of such offence. When we hold that the victim was subjected to sexual intercourse, the question of her consent would simply not arise in view of her mental condition. Learned counsel for the accused, however, submitted that the accused were not aware about it. The victim was suffering from mental instability since years. She was in the habit of running away from the home. She had to be locked up whenever all members of the family had to go out leaving her alone. On the day of the incident itself, she would have in all probability wandered off from her house. It is impossible to believe that any person who tried to develop physical intimacy with the victim would not have come to know that she was mentally unsound.
23. Mere late filing of the FIR in a case like this cannot be fatal. Firstly whether or not to lodge a complaint of rape is always a difficult decision for the family. When it happens to a person of unsound mind, it becomes even more difficult. Therefore, if the family took a while to take such a decision, that by itself cannot be fatal to the prosecution. In particular, when we find reliable oral evidence of eyewitnesses strongly supported and corroborated by forensic evidence and when we also find that the delay, if at all, was not very long, it would be impossible for us to acquit the accused only on this count disregarding the overwhelming evidence on record.
24. For accused No.2, counsel submitted that he cannot be stated to have committed offence of rape. It may be that he may not have actually penetrated the victim. Nevertheless he is convicted for offence under Section 376 with the aid of Section 114 of IPC. The fact of his presence and active participation in the offence is established beyond doubt. His presence was established by eyewitnesses. His participation was established additionally through forensic evidence. Even if he had not penetrated the woman, he was present when the accused No.1 was actually committing the offence of rape. He himself had partially removed his clothes and, in fact, discharged his semen on his own clothes. His participation in the offence of rape through abatement actually committed by accused No.1 thus was complete. Section 114 of IPC provides that whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. Accused No.2, as an abater, was also present throughout when offence was committed. His conviction for offence under Section 376 with the aid of 114 of IPC was, therefore, perfectly justified.
25. Even Section 376(2)(g) which provides for punishment for an act of gang rape contains the explanation which provides that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the said sub-section. Thus, for commission of offence of gang rape, it is not necessary that actual sexual intercourse must be committed by more culprits than one as long as rape is committed by a person in a group of persons acting in furtherance of their common intention. We are conscious that no specific charge of gang rape was framed against the accused. We wonder, however, in absence of any prejudice to the accused this mere defect in framing of the charge would be of any relevance. However, we may not enter into such discussion and conclude that there is sufficient evidence on the record to convict both the accused for offence under Section 376 read with Section 114 of IPC.
26. Coming to the question of sentence, we may recall that the Trial Court has sentenced both the accused to rigorous imprisonment of seven years. Section 376 of IPC prescribes punishment for rape. Sub section (1) thereof provides that except in the cases provided for by Sub section (2), commits rape shall be punished with imprisonment of either description for a term which would not be less than seven years but which may be for life or for a term which may be extend for 10 years. Proviso to sub section (1) permits the Court for adequate special reasons to be mentioned in the judgement to reduce the sentence below seven years. Ordinarily, therefore, except for adequate special reasons to be recorded, offence of rape punishable under Section 376(1) of IPC would be visited with a minimum sentence of seven years which may extend up to 10 years or even life. In the present case, we find that the accused were not, particularly young persons at the time of the incident. They are both stated to be aged about 35 and 40 years respectively. The had committed a heinous crime against a victim who was helpless and mentally unable to withstand their advances. Surely, the act of sexually exploiting a mentally challenged woman by two adult male members of middle age cannot be visited with bare minimum punishment prescribed by the statute. Their act of perversity deserves grater punishment.
27. In case of Shyam Narain Vs. (The) State of NCT of Delhi reported in 2013 (2) GLH 380, the Supreme Court discussed various aspects of adequacy of punishment, particularly, in the backdrop of offence under Section 376 of Penal Code. It was observed that:
11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
Referring to decision of Supreme Court, it was further observed that:
16. The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasized upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.
In the conclusion, the Supreme Court confirmed life sentence to the accused, who was convicted for committing rape on an eight year old girl.
28. Considering facts and circumstances of the present case, looking to the manner, in which the offence was committed and the fact that the victim was mentally challenged and that the accused were not of young age at the time of the incident, their sentence is enhanced to rigorous imprisonment for 10 years. Direction for payment of fine remains unaltered.
29. In the result appeals are disposed of with following directions:
(I) Criminal Appeals No. 1545 of 2010 and 185 of 2012 filed by the accused against conviction are dismissed.
(II) Criminal Appeal No. 961 of 2010 filed by the State for enhancement of the sentence is partially allowed. The sentence of both the accused is increased to rigorous imprisonment of 10 years. Judgement of the Trial Court is partially modified. Rest of the operative portion remains unchanged. All the appeals are disposed of accordingly.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) Jyoti Page 18 of 18