(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1. This appeal is directed against the judgment and order passed by the Sessions Court, Ahmedabad City, in Sessions Case No. 23/2005 dated 27.3.2006, whereby, both the original accused, the appellants before this Court, are convicted for the offence punishable under section 376, 342 and 114 of IPC and are ordered to undergo R/I for life. Further, it is ordered that the appellants shall also pay fine of Rs. 10,000/-each. The appellants are husband and wife. The husband is Accused no. 1 and wife is Accused no. 2.
2. The case of the prosecution, in brief, is to the effect that on 21.2.2004, at about 6.30 in the morning, the accused no. 2 called the prosecutrix PW-5 at her residence under the pretext of making tea for her husband (Accused no. 1), and when she entered her house, accused no. 2 closed the door of the house from outside and accused no. 1 raped the prosecutrix. It is alleged that when the prosecutrix, after the occurrence of the incident, tried to open the door, it did not open and when she shouted, accused no. 2 opened the door from outside. It is on this allegation, the complaint was given on the next day against the appellants and the offence was registered. The same was investigated and according to the prosecution, on finding sufficient material, the charge-sheet was filed in the Court of learned Metropolitan Magistrate, Ahmedabad, who in turn, committed the case to the Court of Sessions, which was given number as Sessions Case No. 23/2005.
3. The charge came to be framed against the accused vide Exh. 6 in the sessions court. The accused pleaded not guilty and came to be tried. The prosecution has examined the witnesses and relied on documentary evidence, the details of which are mentioned in para-5 of the judgment of the Sessions Court. On conclusion of the trial, in the view of the Sessions Court, charge against both the accused stood proved beyond reasonable doubt, and that is how, the conviction came to be recorded, as aforesaid, and both the accused are awarded R/I for life. It is this judgment and order of conviction and sentence, which is under challenge in this appeal. For the sake of convinience, both the appellants are referred to as accused no. 1 and accused no. 2 respectively, as per their status before the trial Court.
4. We have heard Ms. Banna Dutta learned advocate for the appellants and Mr. Neeraj Soni learned APP for the State.
5. It is contended on behalf of the appellants that the conviction be interfered with by this Court, since in the submission of learned counsel for the appellants, the prosecution theory is improbable, coupled with the fact that there is delay in lodging the complaint in this case, which if considered in totality, must be held fatal to the prosecution case.
6. On the other hand, learned APP has contended that the evidence led by the prosecution was sufficient to bring home the charge and the learned Sessions Judge has not committed any error in recording the conviction, and consequently, this Court may not interfere with the judgment and order passed by the Sessions Court, which is impugned in this appeal.
7. We have examined the records and proceedings in the context of the submissions made by both the learned counsels.
8. The evidence of the prosecutrix is on record at Exh. 26. She is examined as PW-5. In her deposition, she stated that on 21.2.2004, at about 6.30 in the morning, accused no. 2 called her under the pretext that her son is sick and to prepare tea for her husband. When she went there, accused no. 2 bolted the door from the outside, and thereafter, accused no. 1 removed the clothes of the prosecutrix and his own clothes and committed rape on her, after tiding her hands. After that occurrence was over, accused no. 1 untied her hands and allowed her to go, but when she tried to open the door, it was closed from out side, which was opened from outside by accused no. 2 and she went home. She further stated that on the same day, when her husband came from work at about 8.00 O'clock in the morning, she did not inform anything about the incident to her husband, but when in the afternoon her husband came, she informed about the incident and then she was taken to her sister's place and after deliberation, which took place there, on the next day in the evening, the complaint was given. In the cross-examination, it has come on record that the married life of the prosecutrix is of about 12 years. She has six children. She was staying in the rented room, which was owned by accused no. 1. They were staying on rental basis since about 2 years. They had good relations with both the accused. She also stated that the accused couple has seven children. Their houses are adjoining. If one shouts from one house, it could be easily heard in the adjoining house. She states that on the date of incident, in the morning, the children of the accused were sleeping in the very room where the offence took place. The elder daughter of the accused is about 21 years of age. After the incident, she (prosecutrix) went to her home, her husband is doing the work of distribution of news-papers in the morning and comes back from work at about 8.00am to 9.00 am. She did not inform about the incident to her husband. She denied the suggestion that the money which was asked for by her from accused no. 1 was not given, and therefore a complaint is made. She also denied the suggestion that since there was conflict about vacating the house, a false complaint is given.
9. The prosecution also led evidence of doctors, who examined the prosecutrix as well as accused no. 1. PW-9 Dr. Chandrakant Bachubhai Patel is examined at Exh. 37, who in his deposition narrated the incident which was told to him by the prosecutrix. In his deposition, he confirmed absence of spermatozoa in the vaginal swab of the prosecutrix, on her examination. The doctor who has examined the accused no. 1, is PW-1 Dr. Bharviben Balvantbhai Pandey Exh. 12. If her deposition is seen with the medical papers of accused no. 1, which is at Exh. 13, the accused no. 1 is stated to have given the history to the doctor, which has come on record, reference to which, shall be made to in this judgment later on.
prosecution that the blood group of accused no. 1 was- A, and from the clothes of the prosecutrix blood and semen of groups - A and B- are found. On the basis of this material, the Sessions Court came to the conclusion that the prosecution has been able to bring home the charge.
11. The defence had examined three witnesses. One Nadirabanu (DW-1) is examined at Exh. 57, who is daughter of both the accused. She in her deposition states that she is of about 16 years age. On the date of incident, according to her deposition, the prosecutrix/ complainant had come to their house, at that time, her mother (accused no. 2) had gone to buy kerosene, one sister was doing work at home, the youngest brother was sleeping and her father was taking both, at that time, prosecutrix came and asked for Rs. 1000/- from accused no.1, to which, accused no. 1 said that she may come later on and some heated words were uttered by the prosecutrix, and thereafter the prosecutrix walked away and went to her home.
12. One Parulben is examined as DW-2 at Exh. 58. She in her deposition states that at about 6.30 in the morning, she had gone to take kerosene and accused no. 2 was also with her for buying the kerosene.
13. The defence has also examined Jahinabibi as DW-3 at Exh. 59, who is sister-in-law of accused no. 1. In her deposition, she states that they are residing in the adjoining house of accused as well as complainant. She had learnt that on the date of the incident the prosecutrix had gone to appellants' house and had asked for Rs. 1000/-, and since that amount was not given, she returned home.
14. Broadly, on the basis of this material, the arguments advanced by learned counsel for the appellants as well as that of learned APP is to be weighed and on overall consideration of the materials on record, the picture which emerges is as under.
15.1 The incident has taken place in the hot summer morning, in day light, near Dudheshwar Water Tank (Ahmedabad), at about 6.30 in the morning, in densely populated chawl type area, where the houses are like small one room huts, and closely attached to each other, where prosecutrix as well as accused and their near relatives were residing. From the Evidence of DW-
2 Parulben, it has come on record that the wife of accused no. 1 i.e. accused no. 2, was not at home and she had gone to take kerosene. The prosecution theory if accepted, is to the effect that the wife of accused no. 1 facilitated the rape by her husband, on neighbour lady, in presence of children sleeping in the same room including grown up female children. It further proceeds to allege that the wife of accused no. 1 had bolted the door from outside, in the densely populated chawl. The prosecutrix did not shout and nobody heard knocking the door. After occurrence, accused no. 2 opened the door. The prosecutrix thereafter went to her home and after going to home, when her husband came after about one hour, she did not inform anything to him and in the afternoon when she informed her husband, her husband told her to go to her sister's place, and after deliberation, next day in the evening the complaint is given about the offence having taken place. On the basis of the medical evidence which is on record, we also find that there are no marks of injury on the person of the victim. On the basis of this prosecution evidence, if the say of defence is weighed, we find that the daughter of the accused, who is stated to be of about 16 years of age, and whose presence at her own house at about 6.30 in the morning is natural, deposes before the Court that the prosecutrix did came to their house when her mother was not at home. She asked for money from her father but her father was taking bath, and when he said no for money, she uttered heated words and went back to her own house. When we weigh these two theories, in our judgment, the say of DW-1 appears to be more acceptable as against the evidence of the prosecutrix, which not only does not inspire confidence but which appears to be improbable.
15.2 It is settled position of law that in the offence like that under section 376 of IPC, the sole testimony of the prosecutrix can be sufficient to uphold the conviction, provided it inspires confidence of the court. As noted above, on totality of the circumstances, we have found that defence witness No:1 is the daughter of the appellants, of about 16 years of age and whose presence at the place of occurrence is natural and whose presence is not disputed by prosecution either, her evidence is natural and inspires confidence and there is no reason to disbelieve her say. As against that the say of the prosecutrix, not only does not inspire confidence but in our judgement is improbable. Further, it is coming on record that from the day the incident happened, the prosecutrix is not seen at her house and they have left the place. Considering these aspects, in our view, on the basis of the material on record, it would not be safe to uphold the conviction against any of the two accused. The view which we propose to take that the material on record is insufficient to uphold conviction, is further fortified by the circumstance that the complaint is given late for which no reasonable explanation is coming forward. The explanation which is tried to put forward on behalf of the prosecution also fortifies the case of the defence, since it is stated that after deliberating about the incident with the sister and mother of the prosecutrix, the complaint is given. It is further required to be noted that there are very small rooms of the accused as well as victim like huts in a chawl type area. Further, the daughter of the accused was present at the scene of offence. All these factors collectively makes the say of the prosecutrix improbable and untrustworthy. For these reasons, we came to the conclusion that the conviction recorded by the learned Sessions Judge cannot be maintained.
15.3 On appreciation of evidence we have arrived at the conclusion as above, and the same is fortified by the evidence which has come on record as led by the prosecution in the form of Exh. 13. The doctor, who treated accused no. 1 Dr. Bhairavi Balvantbhai Panday PW-1 Exh. 12 has referred to the case papers Exh. 13. The contents of Exh. 13 is that the accused no. 1 had given history to the doctor to the effect that the accused and the prosecutrix are residing side by side since couple of years. They had relations of sharing lighter moments. On the date of the incident, in the morning at about 6.30, the prosecutrix had come to the accused no. 1, and at that time, wife of accused no. 1 was not there. At that moment, accused no. 1 thought of his children, and therefore they did not had physical relation, on this prosecutrix got annoyed, asked for money and when accused no. 1 refused to give money, she went away. The wife of the accused no.
1 i.e. accused no. 2 came to know about this, they i.e. both the accused had heated exchange of words in this regard. Ultimately, the complaint came to be filed by the prosecutrix. The defence taken by the accused – appellants, if seen in the back ground of this evidence, we find it to be more probable. On one hand, we find the prosecution case to be improbable, and on the other hand, we find the defence version to be probable or even if taken at its worst, it is not impossible one, and therefore, the conviction recorded by the Sessions Court qua accused no. 1 and 2 cannot be sustained and the same is required to be interfered with.
16. For the reasons recorded above, we arrive at the judgment and pass the order as under.
(I) The conviction and sentence recorded by the Sessions Court, Ahmedabad City in Sessions Case No. 23/2005 dated 27.3.2006 qua Accused No. 1 & Accused No. 2 is set aside.
(II) Accused No. 1 & Accused No. 2, the appellants are acquitted of the charges levelled against them.
(III) Accused no. 1 – Jafarbhai Aasifali Saiyed is ordered to be set at liberty forthwith, if he is not required for any other lawful purpose.
(IV) Bail bonds of Accused no. 2-Takdiran @ Pyari Jafarbhai Aasifali Saiyed stands cancelled.
(V) Fine, if any, paid by any of the accused shall be refunded to the appellants-accused.
The appeal is allowed accordingly.
[A.L. DAVE, J.] [PARESH UPADHYAY, J.] mandora/