IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1366 of 2006 With CRIMINAL APPEAL No. 1749 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE PARESH UPADHYAY ========================================================= 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 ?
========================================================= BABUBHAI PUNJABHAI VAGHELA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR SR YADAV for Appellant : 1 in Criminal Appeal No.1366 of 2006. MR HITESH PADHYA for Appellant : 1 in Criminal Appeal No.1749 of 2006.
MR NB SONI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date :23/10/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two appeals arise out of a judgment and order rendered by learned City Sessions Court, Ahmedabad on January 30, 2006 in Sessions Case No.351 of 2004, whereunder, both the appellants came to be convicted for the offences punishable under Sections 376(2)(d) and 376(2)(g) read with Section 34 of the Indian Penal Code and were sentenced to rigorous imprisonment for 12 years with a fine of Rs.5,000/- for each offence, in default, to undergo simple imprisonment for one year for each default. The accused were given benefit of set off and both the sentences were ordered to run concurrently. The appellant Babubhai Punjabhai Waghela in Criminal Appeal No.1364 of 2006 was accused no.1 and the appellant in Criminal Appeal No.1749 of 2006 Vitthalbhai Mathurbhai Harijan was accused no.2 before the trial Court. Since these two appeals arise out of a common judgment and order, they are disposed of by this common judgment. For the sake of convenience, the appellants are referred to in this judgment by their original status as accused no.1 (for short 'A1') and accused no.2 (for short 'A2'), respectively.
2. Original Accused No.1, Babubhai Punjabhai Waghela, is reported to be on bail during pendency of the appeal; whereas, Original Accused No.2, Vitthalbhai Mathurbhai Harijan, is in jail.
3. A1 is represented by learned advocate Mr. S.R. Yadav and A2 is represented by learned advocate Mr. Hitesh Padhya, whereas, the respondent - State of Gujarat is represented by learned APP Mr.N.B. Soni in both the appeals.
4. We have heard learned advocates for the parties.
4.1 The main contention that is raised on behalf of A1 is that the prosecutrix has admitted during her cross- examination that the intercourse with A1 was by her consent and therefore, no offence of rape is constituted. He is, therefore, wrongly convicted and the conviction may be set aside.
5. It is contended on behalf of A2 that the place of incident, i.e. the room number, where the incident occurred, is not stated in the FIR. However, the station diary entry reflects that room number. How this has happened, has not been explained by the prosecution. It is also contended that as per the prosecutrix, A2 used force. In Gujarati vernacular, she has used the word 'Jabarjasti' and therefore, it would not amount to intercourse least a rape. It is then contended that since intercourse with A1 was with consent, as admitted by the prosecutrix in her cross-examination, conviction of A2 for gang rape becomes unsustainable. It is also contended that the report of DNA and semen would show that they do not match with DNA or semen of A2. Lastly, it was contended that there was no injury on the person of either A2 or the prosecutrix which would rule out a forced intercourse and the act would come out of the definition of 'rape'. Therefore, the appeals may be allowed and conviction may be set aside.
6. On the other hand, learned APP has contended that the argument that since intercourse with A1 is admitted by the prosecutrix to be with consent and therefore, would not constitute an offence of rape, may be technically correct, but, that may not result in a clean acquittal, so far as A1 is concerned and he has also been convicted under Section 376(2)(d) read with Section 34 of the Indian Penal Code.
6.1 It is also pleaded by the learned APP that contention on behalf of A2 that since there is no gang rape, as per admission made by the prosecutrix of having intercourse with A1 with consent, A2 cannot be convicted for gang rape, again may be technically true, but, A2 is convicted for both the offences punishable under Section 376(2)(g) and 376(2)(d) and therefore, the contention that conviction is not sustainable, may not be accepted.
6.2 It is contended that the prosecutrix's alleging only 'Jabardasti' would mean not intercourse, but, only use of force, is not the correct interpretation in colloquial language being 'Jabardasti' has connotation of a forced intercourse. Apart from that, the prosecutrix has, at other place in her deposition, specifically used the word 'rape' and therefore, this argument may not be accepted.
6.3 Learned APP then contended that the place of incident may not have been stated in the FIR, but, FIR is not the magna-carta to contain all details. Number of room being reflected in the station diary entry may be on account of the officer being informed during the course of investigation orally by the prosecutrix and therefore, that argument also may not be accepted. So far as DNA and semen of A2 is concerned, they do match with A2 and submission is that they do not match, is factually incorrect. It was lastly contended by learned APP that absence of injury on person of either the prosecutrix or A2, cannot be used as a fact for inferring innocence of A2, because the deposition of the prosecutrix, if read as a whole, would mean that the prosecutrix was put under psychic pressure by exploiting her financial status and therefore, she may not have gathered strength to physically resist the act. The prosecutrix is an uneducated and rustic villager and has succumbed to the pressure from the accused, who are hospital staff and therefore, that part also may not help the defence. It is contended by the learned APP that the prosecutrix, therefore, was made void vulnerable and was exploited. The appeals may, therefore, be dismissed.
7. We have examined the record and proceedings in context of rival submissions.
8. The prosecution case, in brief, is that the prosecutrix used to come to the Cancer Institute, which is part of the Civil Hospital, for treatment of her husband for about three months prior to the incident. The prosecutrix and her husband hail from tribal area of the State. The prosecutrix is totally illiterate and belongs to a poor strata of the society. She was aged about 30 years when the incident occurred and was 31 when she deposed before the Court after about one year and two months from the date of incident, death of husband/patient. She happens to be mother of two sons aged about 16 and 14 years. A1 was working as a Ward Boy in the hospital, where the husband of the prosecutrix was admitted and therefore, prosecutrix knew him; whereas, A2 was working as a Sweeper in the very hospital. On 31st of July, 2004, A1 inquired of the prosecutrix and her husband as to whether they were getting free treatment and whether they would like to have free treatment, the husband of the prosecutrix told him that they were entitled to free treatment being tribal, but, they had already spent Rs.1,500/- for medicines on earlier occasions and therefore, A1 told him to send the prosecutrix with him, so that he would provide her with forms, having them filled and get the refund and get the treatment totally free. The lady did not go as was directed. Therefore, A1 again approached them and insisted upon the husband of the prosecutrix to send the prosecutrix. The husband, therefore, insisted upon the prosecutrix to go and have the procedure completed. At that point of time, A1 disclosed that the prosecutrix was being taken to room no.412. While she was waiting in that room, A2 approached her and inquired as to why she was sitting and when she told him about refund of money spent on medicines, A2 examined the papers brought by the prosecutrix and told her that since bills are old, she would not be entitled to any refund. The prosecutrix, therefore, told him that if that is so, she may leave and when she got up to leave the room, A2 forced her, shut the door from inside and committed rape. After the act was over, A2 called A1 and then left. A1 repeated the act and then left. A towel was lying there which the prosecutrix used to clean her private parts. She left the towel there and went to her husband crying and told him everything. The persons in the medical ward were also listening her as she narrated the story to her husband. Her husband, therefore, approached the Security Officer Mr. Dave, who, in turn, took her to the police station, where, her FIR was taken. On the basis of that FIR, offence was registered and investigation was started. The charge-sheet was filed by police in the Court of learned Metropolitan Magistrate and the case was then committed to the City Sessions Court and Session Case No.351 of 2004 was registered. The charge was framed at Exh.5, to which, both the accused persons pleaded not guilty and came to be tried. At the end of the trial, the trial Court found the accused – appellants guilty and sentenced them, as stated hereinabove. Hence, the appeals.
9. The prosecution has examined Dr. Bhairavi Pandey at Exh.9, who examined the prosecutrix post the incident. No external injuries were found over the body. No bloodstains or semen-stains were found over the body or the cloths. She was admitted to gynec unit of Dr. Shah, who also confirmed absence of mark of injury on any part of her body and she was otherwise found to be with normal health. Her vagina indicated the absence of motile spermatozoa.
10. The prosecutrix has been examined as PW2 at Exh.13. She states about belonging to a small village in Panchmahal District, she states about her two sons and her husband suffering from cancer. She states that her husband was under treatment for nine months prior to the incident. She states that her husband was in hospital for about two months when the incident occurred. She does not remember the date of incident, as she is illiterate. She states that A1 came to them and inquired about the nature of treatment as to whether it was free or paid. The husband told him that it was a free treatment, but, for whatever money was spent earlier, refund could be claimed. She then narrates that she did not go, therefore, A1 came again and insisted upon her to go with him. She told her husband that since she was cleaning utensils, she would go later on, but, her husband insisted her and therefore, she went with A1. At that time, he was taking prosecutrix to room no.412. There, she was made to sit by A1 and within few moments, A2 came, inquired as to why she was waiting and then told her that since the bills were old, she would not be entitled to any refund and therefore, prosecutrix started leaving the room. At that point of time, she was pulled to floor and raped. After the act was over, A2 called A1 and A1 repeated the act. Whereafter, she cleaned her private part and went to her husband crying and then told him the full story of the incident. Her husband told Mr. Dave, a Security Officer, who, in turn, took her to the police and offence was registered. She states that she gave complaint and put her thumb mark on it. She then says that she is unable to identify muddamal articles no.1, 2 and 3 due to afflux of time. She is not able to identify either the saree or the petticoat or the undergarments. She states that she was called for T.I. parade and had identified the persons who had raped her. The prosecutrix is subjected to cross-examination. During her cross-examination, she makes a candid statement that she had consented to intercourse by Babukaka i.e. A1, whereas, A2 had committed rape on her in room no.412. This admission was given by her, despite its implications being brought to her notice by the Court, as can be seen from the noting made by the Court in the deposition. On suggestion that there was no rape on her, and that she had given the FIR out of fear, she has stated that she was raped, but, it is true that she had given the FIR out of fear. She again states that the FIR was given out of fear. She states in her cross-examination that it is true that the fear was to the opposite that these two persons will not only tell her husband, but will not permit him to take treatment or to stay in the hospital and out of that fear, she gave the FIR.
11. Before we proceed to discuss on other aspects, we must record here that we are impressed by the truthfulness and honesty of this witness. She is a rustic uneducated villager, who admits that she does not remember the date of incident because she is illiterate. She is also honest to say that she cannot say with certainty, whether the saree, petticoat or undergarments shown to her were her which she was wearing at the time of incident, otherwise, she could have easily said so and nobody would have doubted or suspected her version.
She is also honest to admit that her coitus with A1 was with her consent, but, with A2, it was without consent and therefore, rape.
12. An attempt was made to assail her deposition by saying that FIR was given by her out of fear. In our view, there also, we find that here is a victim who succumbed to the pressure of A1 and A2 as the employees of the hospital only in a hope that her husband would get treatment free of charge. The moment she felt that she and her husband may not be permitted to have treatment at the hospital because of A1 and A2, she must have courage and lodged FIR. It was, in fact, in our view, the courageous act rather than an act out of fear. Fear works only as a catalyst. With evidence of this sterling quality, there is no need for any corroborative evidence to uphold the conviction. However, since there is material on record which lends supports to the version of the prosecutrix, we may as a whole record the same.
13. The FSL report, Exh.62, would show that the saree, petticoat and the undergarments carried stains of semen of Group 'B'. The napkin also had bloodstains and semen of Group 'B'. The samples of blood of A1, A2 and the prosecutrix would show that they all had Group 'B'. It is, therefore, not proper to have taken a contention for the advocate for appellant no.2 that the DNA or semen did not tally with that of A2.
14. The panchnama of place of incident would show that napkin was recovered from the place of incident and it was also stains with semen of same group.
15. Once we find that both the accused had intercourse with the prosecutrix and once the prosecutrix admits of having had intercourse with A1 by her consent, that act ceases to be rape and therefore, conviction of A1 under Section 376(2)(d) or 376(2)(g) cannot be upheld, because, both of them contemplate rape in given set of situation, by given set of persons. However, a look at Section 376D, would indicate that in case of A1, said provisions would be attracted. Section 376D runs as under :
"Sec.376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital – Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extent to fie years and shall also be liable to fine.”
16. This provision contemplates 'intercourse' by a member of the management or staff of hospital with a woman in that hospital, although the act may not constitute 'rape'. In the instant case, both, A1 and A2, were employees of the hospital, prosecutrix was in the hospital and there was an intercourse between them in the hospital and therefore, Section 376D of the Indian Penal Code would be attracted in respect of A1 at least.
17. However, it has to be kept in mind that both the accused persons were charged with offence of rape with the help of Section 34 as well as Section 120B of the Indian Penal Code. It will have, therefore, to be seen, whether A1 can escape from his liability of rape only on account of admission of the prosecutrix that intercourse with A1 was with her consent and whether he can escape from the mischief of Section 34 of the Indian Penal Code. This aspect we propose to discuss in later part of this judgment.
18. Coming to the act of A2, the evidence is crystal clear. We find that he had an intercourse with the prosecutrix against her wish. Prosecutrix never knew him prior to the incident. He has taken advantage of he is being in hospital and the lady being an illiterate, poor and isolated in the hospital. It is a clear case of rape being committed by the hospital employee and would attract provisions contained in Section 376(2)(d) of the Indian Penal Code, where a person in management or a staff of a hospital takes advantage of his position and commits rape on a woman in that hospital, conviction of A2 under Section 376(2)(d), therefore, has to be upheld. However, his conviction under Section 376(2)(g) cannot be upheld and has to be set aside, like that of A1.
19. The resultant effect of foregoing discussion is that act of A1 cannot fall within the definition of 'rape' envisaged in Section 375 of the Indian Penal Code. His act would certainly attract provisions contained in Section 376D of the Indian Penal Code and would be punishable thereunder.
19.1 The act of A2 constitutes a rape and would attract Section 376(2)(d) of the Indian Penal Code.
20. However, the question that arises for determination is, whether the acts of both the accused were individual or result of a concerted effort pursuant to their common intention or a conspiracy hatched by them and what could be the effect on case against them.
21. At the outset, we may record that the trial Court had framed charge against both the accused for the offences punishable under Section 376 read with Section 34 and Section 120B of the Indian Penal Code. By impugned judgment, the trial Court has given benefit of doubt to the accused persons and have acquitted them of the offence punishable under Section 120B of the Indian Penal Code, against which, there is no appeal by the State and therefore, there is no question of considering their case under Section 120B of the Indian Penal Code.
22. However, the conviction is recorded of both the accused, with the help of Section 34, under Sections 376(2)(d) and 376(2)(g) of the Indian Penal Code.
22.1 Having examined the record and evidence, we find that the trial Court was justified in employing Section 34 of the Indian Penal Code, though was not justified in convicting the accused under Section 376(2)(g) considering the admission made by the prosecutrix. If the sequence of events is seen, it leaves no scope for any doubt that there was a common intention shared by both the accused and they acted pursuant to their common intention. To narrate the same; A1 approaches the prosecutrix and her husband and tempts them for refund of money and the lady does not go in the first instance, he pursues and persuades her husband for her to join him, takes her to their room, makes her sit there all alone and then A2 enters the room, whom prosecutrix had never met. A2 rapes her and then he calls A1 who was just waiting for the signal. Then A1 comes in and has a coitus, then both of them leave the room together, leaving the prosecutrix behind all alone. A1 was, therefore, acting in furtherance of his common intention of luring prosecutrix to room no.412, where A2 misuses the situation, first followed by A1 and then they leave together. All these factors would establish existence of common intention.
23. Now let us examine the consequences of act done by both the accused in furtherance of their common intention.
24. A2 has, undoubtedly, committed an offence punishable under Section 376(2)(d) of the Indian Penal Code. But, that act is committed by him in furtherance of common intention that A1 and A2 had and A1 facilitated that act by initiating the act of calling prosecutrix to room no.412. Therefore, for the act of A2, A1 would be equally responsible and liable for that act in the same manner as if it was done by him alone. Resultantly, A1 also would be liable to be punished under Section 376(2)(d) of the Indian Penal Code, apart from punishment under Section 376D of the Indian Penal Code.
25. Now comes question of quantum of punishment. It was urged by both the learned advocates for the appellants that punishment is harsh. The appellants are poor persons, are aged and their cases need to be considered sympathetically even if the conviction is upheld. In our view, the appellants who were employees of the hospital were expected to act as loco-parentis in respect of a poor, illiterate relative of a cancer patient who was isolated and alone in the hospital having come from a remote village of tribal of Panchmahals. Instead, they have committed an act sharing common intention, which is an insult not only to the prosecutrix, but to a civilised society as a whole. Their advance age is a factor that would go against them rather than in their favour. The prosecutrix called A1 as 'Babukaka' meaning 'Babu Uncle' and she may have proceed with him as an adultly. He has misused the trust put on him by the prosecutrix and would not deserve any sympathy. Considering the aspect of poverty, the prosecutrix comes from a section poorer than a government employee and therefore, that factor also cannot come to the rescue of the appellants.
26. Apart from the above aspects, it is a settled proposition of law that award of sentence is a matter of exercise of judicial discretion and the appellate court would not ordinarily interfere with the use of such discretion, unless it is found that the discretion is not used judiciously. In the instant case, the punishment prescribed for the offence punishable under Section 376(2)(d) is rigorous imprisonment for a term which shall not be less than ten years, but, which may be for life and against this, the sentence awarded is 12 years of the rigorous imprisonment. In our view, the discretion is used judiciously and there is no scope for any interference in the sentence.
27. In the result, both the appeals are partly allowed.
(i) Conviction recorded by trial Court in respect of both the accused appellants, under Section 376(2)(g) of the Indian Penal Code is hereby set aside, consequently sentence awarded by the trial Court for this offence is also set aside.
(ii) Conviction recorded by the trial Court in respect of both the accused appellants, under Section 376(2)(d) read with Section 34 of the Indian Penal Code is hereby upheld, with no change in sentence, fine or default sentence.
(iii) A1 is also convicted under Section 376D of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for five years with a fine of Rs.5,000/-, in default, to undergo simple imprisonment of one year.
(iv) Both the appellants shall be entitled to set off. In case of A1, both the sentences shall run concurrently.
(v) A1 is on bail. His bail bond shall stand cancelled.
He shall surrender to custody within four weeks from date of this order.
[A.L. Dave, J.] [Paresh Upadhyay, J.] #MH Dave