Gujarat High Court
Mohanbhai Jorabhai Rabari vs State Of Gujarat on 26 March, 2018
Author: A.Y. Kogje
Bench: M.R. Shah, A.Y. Kogje
R/CR.A/97/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 97 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
===========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
===========================================================
MOHANBHAI JORABHAI RABARI
Versus
STATE OF GUJARAT
===========================================================
Appearance:
HCLS COMMITTEE for the PETITIONER(s) No. 1
MR KAIVAN K PATEL(6338) for the PETITIONER(s) No. 1
MS CM SHAH, APP for the RESPONDENT(s) No. 1
===========================================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 26/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE) Page 1 of 13 R/CR.A/97/2018 JUDGMENT
1. This appeal under Section 374 of the Criminal Procedure Code is filed against judgment and order dated 03.04.2017 by Special Judge (POCSO), Deesa, Banaskantha in Special (POCSO) Case No.4 of 2016 (new). By the impugned judgment and order, the appellant is convicted for offences under Sections 363, 366 and 376 of the Indian Penal Code, Section 3(C) read with Sections 4 and 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act" for short) and Sections 3(2)5 and 3(1)11 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the Atrocities Act", for short).
1.2 After recording conviction, the Special Court has sentenced the appellant for rigorous imprisonment of 7 years, fine of Rs.2,000/- and in default, 4 months imprisonment for offence under Section 363 of the Indian Penal Code, rigorous imprisonment of 10 years, fine of Rs.2,000/- and in default, 4 months imprisonment for offence under Section 366 of the Indian Penal Code, life imprisonment, fine of Rs.2,000/- and in default, 4 months imprisonment for offence under Section 376 of the Indian Penal Code, 3(2)5 of the Atrocities Act, 3(c) read with Section 4 and 5(m) read with Section 6 of the POCSO Act and rigorous imprisonment of 5 years, fine of Rs.2,000/- and in default, 4 months imprisonment for offence under Page 2 of 13 R/CR.A/97/2018 JUDGMENT Section 3(1)11 of the Atrocities Act.
2. The facts in brief are that an FIR being I-CR No.17 of 2013 came to be registered for offences under Sections 363 and 376 of the Indian Penal Code at Bhildi Police Station. The complaint came to be registered by complainant Bhikhiben. In the complaint, it is alleged that grand-daughter of the informant, aged 6 years was studying in the primary school and on 13.01.2013, at 02.30 pm, she returned from school crying. Upon inquiry by the informant, she revealed that one person (accused) wearing "dhoti" came to her and offered her biscuit and thereafter gagged her month and took her to nearby bush area and removed her "paijama". The informant noticed blood on the cloths of the victim and upon examining her closely, found injury marks on her private parts. Therefore, suspecting of rape, the informant took the victim to the school and there, lady teachers also examined her and inquired as to what happened and she narrated that a person wearing "dhoti" and turban had victimized her and accordingly, FIR came to be registered against unknown person with the description given by the victim.
2.1 During the course of investigation, name of the appellant was revealed as an accused and a report for adding several other Sections was also filed. Page 3 of 13
R/CR.A/97/2018 JUDGMENT Ultimately, charge sheet came to be filed for aforementioned Sections and after compliance with the
provisions of the Criminal Procedure Code, viz. Sections 207 and 209, sessions came to be committed. Later on, the case was transferred for trial to the POCSO Court, upon Sections of the POCSO Act being added against the accused-appellant. Charges were framed for offences under Sections 363, 376 of the Indian Penal Code, Sections 3(c), 4, 9)l) and 10 of the POCSO Act and Sections 3(2), 5, and 11 of the Atrocities Act. 2.2 The appellant not pleading guilty, claimed to be tried.
2.3 During trial, the prosecution examined following witnesses:-
Sr. Name of the witness Exh. No.
No.
1 Deposition of the complainant Bhikhiben Punabhai Bhangi 46
2 Deposition of the victim 51
3 Deposition of witness Dr.Shailesh Amrutlal Patel 52
4 Deposition of witness Lalitkumar Amrutlal Patel 61
5 Deposition of witness Grishmaben Prahladbhai Patel 69
6 Deposition of witness Ketanbhai Chhaganbhai Patel 70
7 Deposition of witness Rameshbhai Nagjibhai Thakore 73
8 Deposition of panch witness Dilipkumar Umedsinh Vaghela 75
9 Deposition of panch witness Premji Vadanji Thakore 78
10 Deposition of panch witness Rukhiben Rameshbhai Valmiki 79
11 Deposition of panch witness Mukeshji Mafaji Parmar 83
12 Deposition of panch witness Balji Pathuji Thakore 88
13 Deposition of panch witness Panchabhai Harijbhai Rabari 89
14 Deposition of panch witness Jivuji Ganeshji Thakore 91
Page 4 of 13
R/CR.A/97/2018 JUDGMENT
15 Deposition of panch witness Nareshbhai Chaturji Thakore 92
16 Deposition of panch witness Sureshkumar Ambaram Joshi 94
17 Deposition of witness Nilamben Hargovindbhai Patel 95
18 Deposition of witness Babiben Dhanabhai Valmiki 98
19 Deposition of panch witness Rafimbhai Gulabbhai Shaikh 99
20 Deposition of witness Dr.Manisha Chalbhai Chaudhary 100
21 Deposition of witness Rohitkumar Chuljibhai Baranda-IO 103
2.4 Through the aforesaid witnesses, the
prosecution brought on record the following documentary evidence:-
Sr. Name of the witness Exh. No.
No.
1 Complaint 47
2 Medical certificate of the accused given by CHC, Bhildi 53
3 Police yadi written to the Medical Officer, Bhildi for physical 54
checking and investigation of the accused with certificate 4 Original Police yadi written to the Medical Officer, Bhildi for 55 physical checking and investigation of the accused with certificate 5 Police yadi written to the Medical Officer, Bhildi for physical 56 checking and investigation of the victim with certificate 6 Medical certificate of the victim given by CHC, Bhildi 57 7 Consent letter given by the complainant for physical check up of 58 the victim 8 Case papers of the victim of CHC, Bhildi 59 9 Transfer form of CHC, Bhildi 60 10 Identification panchnama of the accused 62 11 Yadi written to the Executive Magistrate for identification 63 to 67 panchnama of the accused 12 Birth certificate of the Primary school of the victim 71 13 Relevant copy of the General Register of the School regarding 72 date of birth of the victim 14 Panchnama of Dog smell tracking of the scene of offence 74 15 Panchnama of scene of offence 76 16 Receipts containing signatures of the panchas 77 17 Receipts containing signatures of the panchas 80, 81 18 Panchnama of body situation of the victim 82 19 Panchnama of body situation of the accused 84 20 Receipts containing signatures of the panchas 85 to 87 21 Panchnama of investigation of rape-box of the victim 90 Page 5 of 13 R/CR.A/97/2018 JUDGMENT 22 Panchnama of investigation of rape-box of the accused 93 23 Medical certificate of the victim of Civil Hospital, Palanpur 101 24 Yadi written to the General Hospital, Palanpur for getting 102 primary body check up certificate of the victim 25 Order appointing IO 104 26 "suchipatrak" of offence 105 27 Yadi written to the PSO for registering the offence 106 28 Dog squad report 107 29 Preliminary report of FSL of the place of offence 108 30 Yadi to make entry in the station diary of arrest of the accused 109 31 Report to add Section 3(2) of the Atrocities Act 110 32 Special report of the serious offence 111 33 Policy yadi written to CHC, Bhildi for medical treatment of the 112 accused 34 Fitness certificate of the accused 113 35 Yadi written to the Civil Hospital, Palanpur for giving opinion on 114 the situation of the victim 36 Outward entry of sending clothes and samples of the victim and 115 accused for investigation by the FSL 37 Police yadi written to CHC, Bhildi for body check up of the 116 accused 38 Fitness certificate of the accused 117 39 Yadi written to the Civil Hospital, Palanpur for handing over the 118 victim for identification parade 40 Yadi written to the Civil Hospital, Palanpur of sending the victim 119 for treatment after completion of identification parade 41 Receipt of FSL regarding receipt of the muddamal 120 42 Caste certificate of the victim 121
3. By order dated 13.03.2018, this Court directed notification of appeal and called for the Records and Proceedings. Considering the peculiar facts of the case and the request made on behalf of the parties, the appeal was taken up final disposal.
4. Mr.Kaivan Patel, learned Advocate for the appellant submitted that the prosecution was unable to bring on record evidence, enough to establish the offence Page 6 of 13 R/CR.A/97/2018 JUDGMENT beyond reasonable doubt against the appellant. It is submitted that the evidences of the victim and the informant are highly unreliable and would not inspire confidence, especially when the charge is of such a serious nature. It is submitted that there are several inconsistencies in the deposition of the victim when the same is read along with deposition of the Doctors giving medical opinion.
4.1 It is submitted that the entire case is based upon the evidences of the informant and the victim. The evidence of the informant is nothing but a hearsay evidence whereas evidence of the victim is completely based on conjunctures and is unreliable as the victim herself is of a tender age and easily manipulable. It is submitted that there are no other surrounding circumstances which could substantiate version of the victim and the informant. It is submitted that even from the FSL report of the cloths of the appellant seized during the investigation, nothing objectionable is found. 4.2 It is submitted that even the Doctor who examined the victim has deposed in her cross-examination that no tresses of semen were found on the body of the victim. This is a major flaw in the prosecution and therefore, benefit be given to the appellant. It is also submitted that if the incident has occurred as is Page 7 of 13 R/CR.A/97/2018 JUDGMENT described by the prosecution then the bodily injuries on the victim ought to have been found naturally. In the instant case, as there is lack of injuries on the body and no explanation by the prosecution in this regard, benefit be given to the appellant.
5. As against this, learned APP has submitted that the version of the informant as well as the victim is very consistent and absolutely reliable. The defence has not even taken up a defence of false implication or has made any attempt to establish as to why the appellant would be falsely involved in such a serious offence. 5.1 It is submitted that the investigation carried out included TI Parade, wherein the victim was able to identify the appellant and the same was proved by leading evidence during the course of trial. Hence, sufficient evidence is available on record to prove the case against the appellant. It is submitted that the medical evidence on record is sufficient to attract the offence of POCSO and hence, conviction and the sentence against the appellant is justified.
6. The Court has heard learned Advocates for both the parties and has gone through the evidence on record in extenso.
7. The evidence of PW-1-informant-Bhikhiben Page 8 of 13 R/CR.A/97/2018 JUDGMENT Jethabhai Bhangi-Exh.19 is supporting the case of the prosecution and is exactly narrating what is conveyed by the victim to her. In the cross-examination, though this witness has deposed that she came to know from the village people that her grand-daughter-victim was ravished by the appellant, however, such deposition would not destabilize the case of the prosecution, as in a natural course, the FIR was registered against unknown person with a description given by the victim and therefore, only during the course of investigation, name of the appellant was revealed.
8. The Court has perused deposition of the victim- PW-1-Exh.51. The deposition indicates initial question- answer session and recording of satisfaction by the recording Judge about the incident and capacity of the victim to depose. In the deposition, she has described as to how the incident taken place in the manner she experienced. She has also correctly identified the accused, who victimized her. Perusal of the cross- examination reveals that this victim has withstood the cross-examination and that her version in the chief examination has remained intact.
9. PW-3-Dr.Shailesh Amrutlal Patel is examined at Exh.52. This Doctor has examined the victim on 13.03.2013, i.e. immediately after the incident. In his Page 9 of 13 R/CR.A/97/2018 JUDGMENT deposition, he has deposed that on the inner part of thighs and on both the legs, dried blood stains were seen. Correspondingly on the cloths (paijama) also, on the inner sides, blood clots of particular size were seen. He has also deposed that while examining the private parts of the victim, small blood clots of 3 mm x 3 mm approximately 5 in number were seen and from the lower part of the vaginal, blood was oozing and upon physical touch to labia minora, the victim was experiencing pain. The medical certificate was exhibited vide Exh.57, which is in consonance with the deposition of the examining Doctor.
10. PW-4-Exh.61 is the Mamlatdar who performed TI parade. In his deposition, he has supported the case of prosecution and the TI panchnama is exhibited at Exh.62. From the deposition and the panchnama, it is clearly established that the victim was able to correctly identify the appellant. From the TI panchnama, the victim was required to identify the accused on two occasions and on first occasion, she identified the accused correctly who was standing in a line at Sr. No.5 and on the second occasion, while he was standing in line at Sr. No.7. The prosecution therefore appears to have established the identify of the accused beyond reasonable doubt.
Page 10 of 13
R/CR.A/97/2018 JUDGMENT
11. Section 3 of the PSCSO Act defines penetrative sexual assault. Clause-(c) of Section 3 reads as under:-
"3 (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or"
11.1 Section 4 provides for punishment for penetrative sexual assault. Section 5 provides for aggravated penetrative sexual assault. Clause-(m) of Section 5 reads as under:-
"5. (m) whoever commits penetrative sexual assault on a child below twelve years; or"
11.2 Section 6 provides for the punishment for aggravated penetrative sexual assault.
12. As discussed earlier, version given by the victim herself in her in-camera deposition, is completely reliable and the medical evidence corroborates the version of the victim to clearly establish penetrative sexual assault by the appellant on the victim. The victim being aged 6 years at the time of incident, which is established by the prosecution by proving birth certificate at Exhs.71 and 72. The prosecution was able to establish the offence under Section 5(m). Similarly, vide Exh.121, cast certificate of the victim, Page 11 of 13 R/CR.A/97/2018 JUDGMENT establishing the victim belonging to scheduled caste community covered under the provisions of the Atrocities Act, is also proved.
13. So far as the argument of the defence about medical certificate Exh.101 proved by PW-20-Dr.Manisha Chelbhai Chaudhary-Exh.100 does not indicate any exact sign of vaginal penetration and hymen being intact is concerned, the same may not be accepted to conclude that the victim was not raped. The medical certificate at Exh.57 by the Doctor examining the victim first in point of time has deposed and so recorded in the certificate about the blood clots on the inner part of the thighs. The blood was oozing out of the lower part of vaginal and the victim was experiencing pain while touching the labia minora. The Court is of the opinion that the medical evidence corroborates the version given by the victim and the opinion given after subsequent examination of the victim at Exh.101 and therefore, is not enough to support the claim of innocence by the appellant.
14. Perusal of the judgment indicates that the Special POCSO Court has correctly considered the evidence on record and has rightly appreciated the deposition of witnesses, corroborated by the medical evidence and TI panchnama. The Special POCSO Court has also given proper hearing to the appellant while granting hearing on Page 12 of 13 R/CR.A/97/2018 JUDGMENT sentence and after considering mitigating circumstances claimed by the appellant, has proceeded to inflict the sentence. The Court has also examined the statement of the accused-appellant recorded under Section 313 of the Criminal Procedure Code. In this statement also, the case of the appellant is that of complete denial and in the final questions, his answer is to the effect that he has been falsely implicated on account of previous enmity. In absence of any circumstance much less evidence in this regard, this Court is not ready to believe such a stand of the appellant, more particularly when nothing is on record to suggest that the victim and her family ever knew the appellant prior to the date of the offence.
15. This Court is therefore is the view that no interference is called for. The appeal deserves to be and is hereby dismissed.
R & P to be transmitted to the concerned trial Court.
Sd/-
(M.R. SHAH, J) Sd/-
(A.Y. KOGJE, J) SHITOLE Page 13 of 13