Gujarat High Court
Parmar Tulsibhai Kevalbhai vs The State Of ... on 26 March, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
R/CR.A/828/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 828 of 2007
With
CRIMINAL APPEAL NO. 1057 of 2007
With
CRIMINAL REVISION APPLICATION NO. 457 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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PARMAR TULSIBHAI KEVALBHAI....Appellant(s)
Versus
THE STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR MM TIRMIZI, ADVOCATE for the Appellant(s) No. 1
MS CM SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Page 1 of 15
R/CR.A/828/2007 JUDGMENT
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 26/03/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. All these proceedings arise out of a judgement dated 5.5.2007 rendered by the learned Sessions Judge, Patan, in Sessions Case No.59/2006.
2. The original accused was charged with offence under section 376 of the Indian Penal Code. He was convicted for the said offence and sentenced to rigorous imprisonment of five years and ordered to pay fine of Rs.5000/. In default, he would undergo simple imprisonment of two months. To challenge, the said judgement, the accused has filed Criminal Appeal No.828/2007. While admitting the appeal of the accused, learned Single Judge under order dated 29.6.2007, decided to take the sentence under suo motu revision. Accordingly, such revision application has been registered. To challenge the inadequacy of sentence, the State has preferred Criminal Appeal No.1057/2007.
3. Briefly stated, prosecution version was that one Ms. 'H', the victim, aged about 19 years was married to PW2, Kishanbhai Aalabhai Parmar. She suffered from chronic stomachache. Despite medical treatment, there was no relief. The accused claimed to be a 'Bhuva" (a tantrik; a person knowing black magic and one who would use it normally for curing people of incurable mental and physical ailments). He had come to visit a temple in the Page 2 of 15 R/CR.A/828/2007 JUDGMENT village where the victim was living with her inlaws. Her motherinlaw coming to know about his professed powers, called him to cure the victim. He performed a brief ceremony and assured that within few weeks, the pain will subside. Coincidentally, after this incident pain also eased upon which the family of the victim called the accused for performing puja. He came to their house on 14.5.2006. In the evening, after having dinner, he started the ceremony inside the house. After couple of hours of making a show of performing puja, he asked all the family members of the victim, except her, to leave the room so that he can complete rest of the ceremony. Her family members went out. After some time the accused asked them to shut the door to provide complete privacy. Some 10 to 15 minutes later, members of the family got suspicious. They rushed into the room to find the victim as well as the accused completely naked and accused having sexual intercourse with her. The accused escaped from there and an FIR was later on lodged by the victim.
4. Kishanbhai Aalabhai Parmar, PW2, exh.19, husband of the victim, deposed that he lived in village Javranti in Radhanpur Taluka. His wife was from Ahmedabad. He had got married two years back. She used to complain of stomachache. Despite medical treatment, her condition did not improve. Accused who had come to the village for visiting the temple was a 'Bhuva'. The mother therefore, met him and spoke to him about the complaint of the victim. He performed a brief ceremony and promised that the pain will disappear in 21 days, after which, rest of the ceremony would have to be performed. Since after this Page 3 of 15 R/CR.A/828/2007 JUDGMENT incident, pain subsided, they called him to perform the remaining ceremony. He came at about 6 O' clock in the evening. Relatives had also come. They all had dinner in the evening. The accused started the ceremony at about 10 O' clock at night. He sat on a cot inside the room with his wife sitting opposite him. He and all other relatives were present. Accused spent time on ceremony for about two to three hours. At 1:30, he declared that looking to the cause of the pain, he would have to perform black magic for which he asked all the family members to sit outside the house. To get rid of wife's trouble permanently, they all went out. The door of the house was kept open. He closed the door upon the accused complaining about the disturbance. Some 10 to 15 minutes later, he opened the door to find his wife and accused both naked and the accused was having intercourse with the victim. He pulled him but the accused escaped and ran away. His wife told him that the accused had told her that if she did not allow him to have intercourse, her pain would not go away. Out of fear and unwillingly, she had participated in the intercourse. To avoid adverse publicity, they did not complaint immediately.
In the cross examination, he agreed that the door was not locked. It was merely left ajar. He knew that before marriage, his wife had a love affair with a boy living near her house. His wife had told him that since she married him, this boy was using black magic to harass her because of which she was having pain in her abdomen. He admitted that after the said incident, the victim was sent to her parents house and he never brought her back.
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5. Mother of the victim, Deviben Aalabhai Parmar, PW3, exh.20, gave a similar version of the incident. Her daughterinlaw had stomachache. She had therefore, called the accused who had come to their village. In about 20 days after the ceremony, victim started feeling better. The accused was therefore, called. In the night, he started the ceremony. After two to three hours, he asked the members of the family to leave, leaving the victim alone with him. This was at about 1:30 at night. He also asked to close the door. After 10 to 15 minutes when they opened the door they found the accused and the victim without any clothes. They were in compromising position having intercourse. The accused ran away from there. The victim had got very scared. She thought that the accused must have done something to her. She was not in her senses.
6. The victim girl, PW4 was examined at exh.21. She admitted to have lodged the FIR which was produced at exh.22. After marriage she had continuous stomachache. She had taken treatment at Bhansali trust hospital, Radhanpur. After delivering a girl child, she started losing weight. Because of her problems, she had to take help of 'Bhuvas'. From then on, this witness turned hostile. She denied having any treatment by the accused but did agree that on the night of the incident, some 'Bhuvas" had come to her house. However, since it was dark, she could not recognise him. She and the 'Bhuva' were alone in the house. He made her lie down and rolled against the body something like a lemon upon which she became unconscious. She did not know what he did after that. The Page 5 of 15 R/CR.A/828/2007 JUDGMENT 'Bhuva' had asked her family members to go outside and close the door after which the said ceremony was performed. He had told them that a secret ceremony had to be performed for which it was necessary. Later on when her husband got suspicious, he pushed the door open and entered the room. He had beaten up 'Bhuva' as well as her. Her husband suspected that she would have been a willing partner. She however, did not identify the accused as as person who had committed the act.
In the cross examination by the accused, she admitted that her husband suspected her character and also had doubt about the paternity of their daughter Jagruti because of which she was being beaten up. He was also asking for divorce. Her husband also suspected that somebody has involved her in black magic because of which he used to often call 'Bhuvas' and perform the ceremonies. Before the incident, four to five times, her husband had called different 'Bhuvas'. She alleged that in order to built pressure for divorce that husband had created a false case.
7. Kanjibhai Maganbhai Parmar, PW5, exh.23 was the cousin brother of Kishanbhai. He was present at the scene of the incident. He also deposed that the accused had come to the house at about 6 O' clock in the evening and started the ceremony after dinner late at night. After two to three hours, he had asked all the members to vacate the room leaving the victim alone with him. Some time after that there was a commotion. When he rushed there, Kishanbhai told him that accused had committed rape on his wife.
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8. Dr. Chunilal Jujaram Kumavat, PW7,exh.27, had examined the victim. He was the medical officer at casualty emergency division of Civil hospital, Ahmedabad. On 16.5.2006, the victim was brought to him by the police. He had recorded the following history in the case papers exh.29 as given by the victim :
"I have studied upto 7th standard. My marriage with Kishanbhai Alabhai Parmar took two years back. I have 10 months old daughter. She was at her matrimonial house doing household work. Her husband is a driver. On 13.5.2006, for her stomachache her motherinlaw had called Tulsi Bhuva at home. Late at night, Bhuva had asked the family members to leave the room and sit outside the room. She and Tulsibhai were alone and Tulsibhai closed the door of the room and started chanting. He pressed my mouth and committed intercourse against my wish. During this time my husband came in the room and started beating Tulsibhai. I became almost unconscious. My husband also beat me up. Next morning my sisterinlaw left me at my parents place at Ahmedabad. I have changed my saree but have not taken bath."
The doctor deposed that he had taken down such history as given by the victim. He carried out her physical examination and took various samples such as vaginal swab, etc. and sent them for forensic analysis.
9. Dr. Paresh Kanaiyalal Kadiya, PW9,exh.35, had examined Page 7 of 15 R/CR.A/828/2007 JUDGMENT the accused. He had noted down the history given by him as under :
"I have not committed rape but at the house of the complainant lady, her husband had called me on 13.5.2006 for performing ceremony for her ailment. However, I have not had any physical relations."
He had taken various samples from the body of the accused such as, his saliva, blood etc. He had sent him to another division for taking the sample of his semen which was done by Dr. Jaswant Revahai Yadav, PW8, exh.32. All these samples were sent for forensic analysis.
10. The FSL report exh.55 read with the serological report, exh.59 established presence of semen from the sample collected from the victim. Importantly, semen was also found from the vaginal swab, urethral swab, cervical swab, vaginal swab, vaginal smear, urethral smear and cervical smear collected from the victim. All these samples were tested as group 'A'. The blood sample of the accused showed it to be of 'A' group.
11. This in the nutshell was the evidence on record.
12. Learned Sessions Judge held that the charge under section 376 of IPC was established. He however, awarded sentence of less than seven years which is ordinarily mandatory, on the ground that looking to the evidence on record, the matter seems to have been compromised with the victim. The victim had also withdrawn sum of Page 8 of 15 R/CR.A/828/2007 JUDGMENT Rs.30,000/ deposited by the accused before the Court. Primarily on such grounds, the lighter sentence was imposed.
13. Learned advocate Shri Tirmizi questioned the validity of conviction suggesting that there was no evidence on involvement of the accused in physical relations with the victim. At any rate, there was nothing on record to suggest that the victim was forced. He submitted that even if there was some deceit, the same would not establish the offence of rape.
14. On the other hand learned APP Ms. C.M. Shah submitted that conviction is based on sound reasonings. There is enough evidence on record. The trial Court committed a serious error in awarding sentence below seven years.
15. Though the victim girl herself did not fully support the prosecution, it is not necessary that her entire evidence should be discarded. To the extent her testimony is otherwise found reliable and specifically if it is found corroborated by independent evidence, so much of her testimony can certainly be relied upon. Regarding the incident, we have eyewitnesses accounts of four different witnesses. The testimony of Kishanbhai, husband of the victim, PW2, is substantially consistent with the testimony of his mother Deviben Aalabhai Parmar, PW3, and his cousin brother Kanjibhai Maganbhai Parmar, PW5. To the extent that the victim girl was suffering from long standing stomachache even she supported the prosecution. For Page 9 of 15 R/CR.A/828/2007 JUDGMENT such reason and multiple other reasons, her husband according to her would call 'Bhuvas'. The accused was roped in to cure her is coming out from the deposition of Kishanbhai PW2, Deviben PW3 and also Kanjibhai PW5. According to the deposition of Kishanbhai and Deviben, the accused promised that after he performed the preliminary ceremony, the victim would be cured and if this happens they would have to perform the remaining ceremony. When coincidentally the victim did start feeling better the family called the accused. The fact that he arrived at their house on the date of the incident is virtually undisputable. Three witnesses named above gave their version of the events of the evening. All the three witnesses consistently stated that in the evening the accused arrived. After dinner he started ceremonies inside the house. After two to three hours of making show of such ceremony, he asked rest of the family members to leave the room, leaving him and the victim alone inside. Soon he asked them to even close the door. Kishanbhai and his mother both were present outside when Kishanbhai got suspicious and pushed open the door. He found, to his shock, both the persons without any clothes having intercourse. The third witness Kanjibhai PW5, though was not an eyewitness to the last part of the incident, his testimony to the stage of victim and the accused being alone inside the house under instruction of the accused, would lend support to the version of other two witnesses.
16. Though victim herself did not identify the accused as a person who had committed such an act on the night of the incident, did say that some 'Bhuva' had asked the rest Page 10 of 15 R/CR.A/828/2007 JUDGMENT of the members to go outside closing the door. He brushed something like a lemon on her body upon which she lost her senses. She did not know what 'Bhuva' did after that. Her husband entered the room and beat up 'Bhuva' and also beat her up thinking that she might have been a willing partner. With respect to the victim and the complainant being caught in the act of performing sexual intercourse, thus three witnesses are consistent i.e. Kishanbhai PW2, husband of the victim and Deviben PW 3, motherinlaw of the victim and the victim herself. As we have already concluded, the accused was the 'Bhuva' present on the night of the incident and he was one who had asked all the family members to leave the room closing the door leaving him and the victim alone in privacy. The fact that the accused committed sexual intercourse on the victim on the night of the incident thus was firmly established. There were two eyewitnesses, the husband of the victim and his mother, who actually saw the incident. The victim herself also suggested that she lost her senses soon after she was alone with a 'Bhuva'. Her husband beat up the 'Bhuva' and her, thinking she had participated willingly. There is additional evidence in the form of history recorded by the doctor to whom the victim was taken. The doctor had noted down the history as narrated by the victim who had recounted the manner in which she was subjected to such sexual intercourse. Even the medical evidence corroborates the prosecution version. As noted vaginal swab, urethral swab, cervical swab and the smears from such organ, all established presence of semen of group 'A'. Blood group of accused was shown to be 'A'. Though Shri Tirmizi would urge us to discard such Page 11 of 15 R/CR.A/828/2007 JUDGMENT evidence contending that physical examination was carried out nearly three days later which ruled out the possibility of presence of semen, one may recall that the victim had declared before the doctor that she did not take bath since then. We have no other reason to dispute the version of the doctor who had collected such samples or the validity of the analysis carried out by the Forensic Science Laboratory. Even independent of this medical evidence, there was sufficient evidence on record to engage the accused with the act of sexual intercourse with the victim.
17. The only question is that of the consent of the victim. For multiple reasons, such claim of consensus act must be discarded. Firstly, no such suggestion was made by the defence at any stage of the trial. Secondly, the victim was aged barely 19 years of age. The accused was aged about 36 years. They had no previous meeting, contact or relations leading to any possibility of closeness. The victim would be taking an extreme risk consenting to such an act in close proximity of her husband and several other relatives sitting just outside the room which was 10 ft x 10 ft in area. The evidence strongly suggests that victim and other family members were prone to easily influence by persons claiming tantrik or special powers of black magic. The victim herself had disclosed to her husband that before marriage, she had affair with a boy in her neighbourhood. It was possible that since she married Kishanbhai, he was using black magic to harass her. The victim also pointed out that her husband had called 'Bhuva' on numerous occasion to cure all her ills. She was thus a young girl who could be influenced or impressed by a relatively elderly Page 12 of 15 R/CR.A/828/2007 JUDGMENT person claiming to possess such super natural powers. The manner in which the incident took place, her condition soon after the accused was caught red handed committing crime, would suggest she was left in almost a trance at the time when the accused committed sexual intercourse with her and was thus deprived of any power of reasoning or judgement. The fact that she did not put up physical resistance would be wholly irrelevant. Clearly it was a case of sexual intercourse without consent.
18. Section 375 of the Indian Penal Code defines the offence of rape and provides that a man is said to commit rape who except in the case excepted, has sexual intercourse with a woman under circumstances falling under any of the six descriptions given therein. First clause is "against her will." Second clause is "without her consent". The case on hand would thus fall under both the clauses. Sexual intercourse was clearly against her will and without her consent under the aura of black magic which the accused convinced the victim and all the family members, the powers that he possessed.
19. Coming to the question of sentence, rape is recognized as an offence where the Courts would show zero tolerance. Section 376 of the Indian Penal Code prescribes punishment for the offence of rape. Subsection(1) thereof provides that in cases other than those provided under subsection(2), punishment for the said offence would be imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and fine. Proviso Page 13 of 15 R/CR.A/828/2007 JUDGMENT to subsection(1) provides that Court may for adequate and special reasons mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years. It can thus be seen that once the offence of rape is established and the case falls under subsection(1) of section 376, minimum sentence prescribed by the legislature is imprisonment of seven years. As per proviso to subsection(1) of section 376, such sentence can be reduced for special and adequate reasons to be recorded in the judgement. In the present case, as noted, according to the learned Judge, the fact that apparently the victim had compromised the issues with the accused and was also permitted to withdraw the sum of Rs.30,000/ deposited by the accused, was special and adequate reasons for reducing sentence. In our opinion, such reasons are neither adequate nor special. In fact, no such reasons exist on record. Plain and simple, accused cast a systematic web and lured the family of the victim into believing in his supernatural powers curing incurable disease. Coincidentally or psychologically, since the victim started feeling better, he performed further ceremony, plotting all the way to have intercourse with the victim. After tiring out the family members with frivolous show of ceremony till 1:30 at night, he asked them to wait outside and close the door so that he could perform his black magic with total concentration. He thus had a well planned evil strategy for achieving his aim. There are no reasons whatsoever to reduce the sentence below seven years.
20. Under the circumstances, Criminal Appeal No.828/2007 filed by the accused against conviction is Page 14 of 15 R/CR.A/828/2007 JUDGMENT dismissed.
Criminal Appeal No.1057/2007 filed by the State is allowed in part. Sentence imposed by the trial Court of five years of rigorous imprisonment is substituted by that of rigorous imprisonment of seven years. Direction for payment of fine remains unchanged. Criminal Appeal No.1057/2007 is disposed of accordingly.
In view of such order, no separate order is necessary in suo motu Criminal Revision Application No.457/2007. Criminal Revision Application No.457/2007 is disposed of accordingly.
Accused will have time upto 15.5.2015 to surrender to serve out the rest of the sentence.
R&P be sent back to the concerned trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) raghu Page 15 of 15