Mukesh Shobharam Gupta And Others vs State Of Gujarat –

(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. Original accused No.2 and Original accused No.1 and 3 have preferred Criminal Appeal No.959 of 2000 and Criminal Appeal No.975 of 2000 respectively, challenging the common judgment and order dated 29.9.2000 passed by learned Additional Sessions Judge, Court No.11, Ahmedabad City convicting the accused persons for offences under Sections 363, 366 and 376 of the Indian Penal Code. Mukesh Shobharam Gupta – original accused No.2 has been sentenced for offence under Section 376 of IPC for R.I. for 7 years and fine of Rs.2,000/­, in default R.I. for 2 months, original accused No.1 – Subhash Vasantrai Sonkushre has been sentenced for offence under Section 376 of IPC for R.I. for 7 years and fine of Rs.2,000/­, in default R.I. for 2 months, and for the offence under Section 363 and 366 of IPC for RI for 3 years and fine of Rs.1,000/­, in default RI for one month, and original accused No.3 Dineshbhai Joitaram Raval has been convicted for R.I. for 7 years and fine of Rs.2,000/­, in default R.I. for 2 months for the offence under Section 376 of IPC.

2. Brief facts of the case of the prosecution are as under:

2.1 That one Babubhai Mansukhlal Gajjar, an employee of ATIRA, Ahmedabad lodged a complaint on 10.1.2000 with Navrangpura Police Station and alleged that his daughter namely Sunita aged about 14 years had left his house prior to two months of lodging the complaint. He tried to trace his daughter at different places but he could not find her. However, he did not inform the police since he was afraid of loosing reputation in the society. When his daughter returned to his home after about one month and 10 days, on inquiring his daughter, in detailed, she informed that original accused No.1 Subhash Vasantrai Sonkushre, who happens to be cousin of her friend, alongwith accused No.2 and 3 i.e. Mukesh and Dinesh had dropped her in a rickshaw near her house. She further narrated that she was working with an STD Booth in Bapunagar area of Ahmedabad. During this period of one month and 10 days, she had stayed at different places along with the accused persons where all the accused persons committed rape on her. He further disclosed in his FIR that, he did not lodge a complaint about 20 days evenafter return of his daughter due to loosing reputation in the society. Pursuant to this complaint, the police officers started investigation and having found sufficient material against the accused persons filed a chargesheet in the Court of learned Metropolitan Magistrate, Court No.9, Ahmedabad, who in turn committed the case in the Court of Sessions at Ahmedabad City, who, after perusing the depositions of several witnesses and perusing the documentary evidence, convicted the accused as stated hereinabove.

3. Learned advocate Mr.Shaikh appearing for the appellants­accused in Criminal Appeal No.975 of 2000 along with learned advocate Mr.Mahendra K.Patel appearing for the appellant­accused in Criminal Appeal No.959 of 2000 have assailed the judgment on several grounds. It was submitted that the learned trial court has convicted the accused on the basis of no evidence when the girl Sunita as well as her father i.e. complainant Babubhai Mansukhlal Gajjar have not supported the case of the prosecution and who were declared hostile by the prosecution with the permission of the Court. It was further argued that the learned Judge has erred in relying upon the deposition of Dr.Shilpa Kanubhai Yagnik, to whom the girl had given history about the offence committed by the accused persons. He further submits that, in absence of direct evidence in a nature of deposition of the prosecutrix and the complainant, whatever has been informed by the prosecutrix to the doctor becomes hearsay evidence and, therefore, the trial court has committed an error in convicting the accused persons relying only on the deposition of Dr.Shilpa Yagnik. It was further submitted that, the serological report of Forensic Science Laboratory suggest that undergarment of the prosecutrix has sustained semen mark with bloodstains of Group “A”. He submits that, though, the blood groups of accused Subhash and Mukesh are of “A” group, it is difficult to believe that who was the accused and who committed the offence of rape, that too after collecting the said undergarment after 20 days, and that too in absence of any direct evidence of prosecutrix in a nature of her deposition. It was further argued that, when the prosecutrix was examined by Dr.Shilpa Yagnik, she found that neither on the person of the prosecutrix nor clothes of her were found having stains of any type of liquid. Considering all these aspects, learned advocate for the appellants submitted that the appellants­accused shall be acquitted and judgment and order dated 29.9.2000 may be quashed and set aside.

4. On the other hand, learned APP Mr.Neeraj Soni appearing for the State of Gujarat has supported the case of prosecution, and submitted that the learned Sessions Judge was right in convicting the appellants­accused in view of the history given by the prosecutrix before the doctor as well as the injuries sustained by the prosecutrix as per the medical certificate issued by the doctor.

5. We have heard learned advocates appearing for the respective parties and have examined record and proceedings of the case and have gone through the depositions of about six witnesses and several documentary evidence. Now considering the deposition of Dr.Shilpa Yagnik, P.W.3 Exh.13, as well as Dr.Harishchandra Jadav P.W.4 Exh.19, it has come on the record that when the prosecutrix was brought before her on 11.1.2000, a detailed history was given by her in which she has alleged that the accused persons have committed offence of rape. She found that there were two to three radish bruises on her breasts which is reflected in the certificate issued by this witness. She found no stains either on a person or on her clothes and she was physically well developed girl. The hymen was found old raptured. It comes in the deposition of Dr.Harish that, as per the Ossification test of the prosecutrix, the age of the girl can be said to have been between 13 to 16 years. Now Dr.Shilpa Yagnik has admitted in cross­examination that there are reasons and reasons for rapture of hymen and the bruises which were found on the breast of the prosecutrix were of 2 to 3 old days and it can be sustained by any type of force. She has further stated that the secondary character of the prosecutrix were developed as like an adult woman.

Now considering the deposition of prosecutrix Sunita Babubhai Gajjar P.W.1 Exh.10 till she was declared hostile, has not stated that she was kidnapped by the accused persons and thereafter committed the offence of rape. The complainant who is father of a minor daughter, in his deposition does not support the case of prosecution at all.

The FSL report Exh.37 discloses that the blood group of prosecutrix is of “O” group, while accused Subhash and Mukesh are of “A” group, and accused Dinesh blood group is “B”. The undergarment of the victim which was sent for FSL for report which suggests that there is bloodstain of “A” group on it. It is pertinent to note that the clothes of prosecutrix i.e. underwear clothes of prosecutrix was collected by the police through panchnama Exh.25 on 13.1.2000 i.e. after 3 days of recording the complaint, and 20 days after she reaches at her home and about two months from the date when she left the home as per the complaint. Except on the undergarment, no bloodstain or semen were found on other clothes like pajama, kurta etc. As stated hereinabove, accused ­ Subhash and Mukesh are having “A” blood group and accused Dinesh is having “B” blood group. We are aware that it is not necessary that in a case of rape, bloodstains or semen stains must be found on the clothes of prosecutrix. But, as stated hereinabove, the peculiar facts of this case suggest that the clothes which are collected after more than 20 days having bloodstain of “A” group creates doubt in the investigating agency. As far as injuries of bruises are concerned, they are two to three days old. The girl was with her father since last 20 days and, therefore, in our opinion, the accused cannot be connected with the said injuries.

Non­support to the prosecution either by the prosecutrix or her complainant father, and in absence of any other corroboration, we are of the opinion that the learned Sessions Judge has unnecessarily put lot of weight on the history given by the girl to the doctor. Neither the girl nor her father support the theory put forward by the prosecution. We are of the opinion that the appellants­ accused cannot be convicted only on the hearsay evidence.

6. In the result, the appeals are allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Court No.11, Ahmedabad City in Sessions Case No.208 of 2000 on 29.09.2000 for the offences punishable under Sections 363, 366, 376 of the Indian Penal Code is set aside. The appellants are acquitted of all the charges levelled against them. Since the appellants are on bail, their bail bond shall stand cancelled. Fine, if paid by the appellants, is ordered to be refunded to them.

( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/