Gujarat High Court
Vasantbhai Karshanbhai ... vs State Of Gujarat on 13 July, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/15638/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 15638 of 2017
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VASANTBHAI KARSHANBHAI CHANDRA(BHANUSHALI)....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR NIRAL R MEHTA, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 13/07/2017
ORAL ORDER
1. This application under Section 439 of the Criminal Procedure Code is filed for regular bail in connection with CR No.I-03 of 2017 registered with Naliya Police Station, Naliya, Kutch. The FIR is registered for offences under Sections 354, 376, 365, 328, 342 and 120-B of the Indian Penal Code. Thereafter, investigation has taken place and the applicant has been charge sheeted for offences under Sections 376, 376(d), 376(2),(n), 354, 328, 342, 365, 120-B, 506 and 506(2) of the Indian Penal Code.
1.1 In the FIR, the prosecutrix has narrated as to who she was subjected to a gross offence of gang rape.
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It is narrated that when the help of her mother, she was able to get job at Bharat Gas Agency, which was owned by one Shantibhai Solanki for salary of Rs.5,500/-. Said Shantibhai Solanki had given her miscellaneous work of making data entry in computer. On account of Diwali, the prosecutrix requested for advance salary, for which Shantilal Solanki called her in afternoon time at his residence. When she reached at his residence, he was alone and offered her cold drink in casual manner. After drinking cold drink, she became semi-conscious and thereafter, said Shantilal Solanki and two others committed rape on her. For almost three hours, she was subjected to sexual assault and she could know the name of the persons as while holding her by force, they were addressing each other with first name. When she gained consciousness and confronted them, she was informed that the entire sequence has been recorded in video and that if she does not give-in to their demands, she will be defamed in the society. Thereafter, every now and then, she was subjected to rape by one person or the other and in the narration, she gives out the names of the present applicant also, who committed rape on her along with two other persons on one occasion and two other persons on second occasion. She has stated that on account of her situation, she was unable to retaliate, thinking all these persons who subjected her to rape were very Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Aug 19 23:39:08 IST 2017 R/CR.MA/15638/2017 ORDER influential.
2. Learned Advocate for the applicant submitted that the applicant was arrested on 12.02.2017 and since then, the applicant is behind bars. Now considering the fact that the investigation is completed, the application deserves to be granted.
2.1 Learned Advocate for the applicant submitted that even after filing of the charge sheet, the role of the applicant is not surfacing. He submitted that the applicant is victim of a mistaken identity as in the FIR, the prosecutrix has given name of one Vasant of Adipur. He submitted that the applicant is not belonging to Adipur, but is resident of Gandhidham and therefore, his implication is doubtful.
2.2 Learned Advocate for the applicant submitted that in fact, the prosecution has no legs to stand against the applicant as the prosecutrix herself is changing her version. He submitted that prior to registration of the FIR, she had addressed a handwritten letter to her father, where she expressed that she wants to end her life as she is fed up with what is happening to her and in that first version, name of the applicant has not found any place. He further submitted that the investigation has not even taken care to establish Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Aug 19 23:39:08 IST 2017 R/CR.MA/15638/2017 ORDER correct identity of the applicant before charging the applicant with such serious sections.
2.3 Learned Advocate for the applicant submitted that the evidence collected by the investigating agency with reference to two incidences in which the prosecutrix is implicating the applicant, are thoroughly irrelevant and do not pertain to the period during which those two incidences have alleged to have taken place. 2.4 He submitted that though the allegations are made about an incidence which took place in a hotel, the investigation has not collected CC TV footage to show presence of the applicant. He submitted that considering the change of version in several statements of the prosecutrix recorded during the course of investigation, would entitle the applicant to the discretionary relief. 2.5 Learned Advocate for the applicant strongly relied upon the affidavit purportedly executed by the prosecutrix on 16.05.2017, where it is stated that Vasant (not the applicant who is arrested), but Vasant from Adipur) who has committed rape.
3. As against this, learned Public Prosecutor submitted that the offence is of gross nature. The punishment prescribed for the offences for which the applicant is charge sheeted, is life imprisonment and not Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Aug 19 23:39:08 IST 2017 R/CR.MA/15638/2017 ORDER less than 20 years. He submitted that from the investigation, there is more than sufficient evidence to establish a prima facie case against the applicant. 3.1 Learned Public Prosecutor submitted that the prosecutrix had filed Special Criminal Application No.1791 of 2017 for transfer of investigation, contending that the investigation is not proceeding in fair manner. It is submitted that as the persons involved in the offence are highly placed in administration, they are influencing the investigation to see to it that the correct facts do not come on record of investigation. He submitted that this Court having accepted the contention of the prosecutrix issued directions to the "Special Investigation Team" to carry out investigation in accordance with law.
3.2 Learned Public Prosecutor submitted that the statement of the prosecutrix recorded on 27.01.2017 clearly attributes role to the applicant. In statement dated 03.02.2017, she has identified the applicant to be the person who has perpetrated the crime and the subsequent statement of 17.04.2017 and the statement under Section 164 are consistent in implicating the applicant in committing the gang rape on the prosecutrix.
3.3 Over and above this, learned Public Prosecutor
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referred to the statement of witness Ranjit, who has
stated that the applicant used to contact the prosecutrix by using his phone surreptitiously. The Call Detail Record also indicates that the applicant has been in contact with the prosecutrix. He further submitted that the investigation has been able to clearly establish the identity of the applicant who has committed a gang rape on the prosecutix on two occasions at two different places. He submitted that the applicant is an influential person, a Councilor in Gandhidham Municipality and Chairman of the Standing Committee of the Municipality and therefore, as the investigation is still going on as per the directions of the High Court in a separate proceedings, release of the applicant is likely to have adverse impact on the ongoing investigation.
3.4 Learned Public Prosecutor submitted that the affidavit produced at page No.67 of the application is indicative of the fact that the prosecutrix is still being influenced to file an affidavit to give clean cheat to the applicant. Learned Public Prosecutor also submitted that considering the fact that applicant is holding high post as Chairman of Standing Committee and that at his behest already, victim is being influenced, therefore grant of bail to applicant will have an adverse Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Aug 19 23:39:08 IST 2017 R/CR.MA/15638/2017 ORDER effect on the society at large.
3.5 He submitted that the investigation is still going on and some of the accused are yet to be apprehended, though charge sheet qua the present applicant is already filed.
4. Heard learned Advocates for the rival parties.
5. The Court at the stage of considering a bail application is not called upon to threadbare into the area of appreciation of evidence by trying to find out contradictions or change of version of the witnesses. Consideration would be whether there exists sufficient evidence to prima facie establish charge for which the accused is charge sheeted.
5.1 This Court has perused the statement of the prosecutrix recorded from time to time, more particularly on 27.01.2017, 03.02.2017, 17.04.2017 and statement on 01.02.2017 recorded under Section 164 of the Criminal Procedure Code. This Court finds that in all these statements, role attributed to the applicant is consistently made out. In the FIR, she names the applicant and states that along with one Govind, in one particular hotel, gang rape was committed and thereafter, in one house at Adipur, the applicant with other two persons, had committed gang rape. This version has Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Aug 19 23:39:08 IST 2017 R/CR.MA/15638/2017 ORDER remained consistent in all the statements of the prosecutrix, except for variation in one statement, where she states that the two incidences, where the applicant is involved, have taken place at one place and not two different places. This variation, in the opinion of this Court, would not be enough to hold that the offence has not taken place.
5.2 In the opinion of this Court, the submission of learned Advocate for the applicant about the period during which the applicant is said to have committed gang rape is not the period which is being investigated by the agency, will also not be of any significance at this stage, more particularly when the prosecutrix has given consistent version of commission of gang rape where the applicant is attributed clear cut role along with other co-accused.
5.3 A perusal of the statement of the prosecutrix recorded on 03.02.2017 establishes the identity of the applicant as a perpetrator of the crime. Therefore, considering all these statements, this Court is of the view that the prosecutix is consistent in her version and identifying and implicating him in this offence is prima facie established.
5.4 The affidavit produced at page No.67, if read
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closely, does not inspire any confidence as in the third para, what is stated is that the deponent (prosecutrix) came to know from news on television that the police, in course of investigation, has arrested one Vasant Karshandas Bhanushali (Chandra). It is further stated that she does not know this Vasant Karshandas Bhanushali (Chandra) and identification of Vasant Karshandas Bhanushali (Chandra) is not carried out at her behest and that Vasant Karshandas Bhanushali (Chandra) has not committed any rape on her. It goes on to state that the name of Vasant referred by her is one Vasant of Adipur. When the affidavit was sworn, Vasant Karshandas Bhanushali (Chandra) (applicant) was not physically present in front of the prosecutrix so as to assert that the present applicant in person is not the same person. It is only with reference to the name mentioned in the statement which she ascertains, then circumstances under which such affidavit is filed becomes doubtful. 5.5 Considering the fact that the applicant is a Councilor in Gandhidham Municipality, an influential person and that the prosecutix had to file a petition before this Court against unfair and partisan investigation, such affidavit does not lend any credibility to the case of the defence. In fact, this act can be construed as an act for influencing the Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Aug 19 23:39:08 IST 2017 R/CR.MA/15638/2017 ORDER ongoing investigation. Therefore, this Court finds strength in the argument of the learned Public Prosecutor when he submitted that the identity of the applicant as one of the perpetrators of the crime was established on 03.02.2017. He was thereafter arrested on 12.02.2017 and the prosecutrix filed Special Criminal Application No.1791 of 2017 making serious allegations against mis- directed investigation. At that time, nowhere in the petition, was it mentioned that arrest of the applicant is an outcome of a mistaken identity, making the investigation thoroughly unreliable. Otherwise, such contention would have been part of the pleadings of the arguments before this Court in Special Criminal Application No.1791 of 2017 and the affidavit in question (page No.67) was sworn on 16.05.2017. The statement of witness Ranjit recorded by the investigation is sufficient to establish that the applicant was in touch with the prosecutrix.
5.6 The submission of learned Public Prosecutor that the applicant being Councilor and Chairman of the Standing Committee in local body, enlarging him on bail at this stage will have adverse impact not only on investigation but also society at large, cannot be brushed aside, more particularly when it certainly is not a case of false implication or mistaken identity.
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6. Considering the aforesaid facts and
circumstances, this Court is of the view that there
exists a prima facie case against the applicant for the offence of gang rape under Sections 376, 376(d) and 376(2),(n) of the Indian Penal Code. The investigation is still on going as some accused persons are yet to be apprehended. An attempt to influence witnesses cannot be ruled out as the applicant is an influential person, holding high post in the administration. All these aspects would refrain this Court from exercising discretion in favour of the applicant.
7. The application, therefore, deserves to be and is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J.) SHITOLE Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Aug 19 23:39:08 IST 2017