(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No.326 of 2006, whereby the appellant – accused has been held guilty for the offence punishable under Section 376(2)(g) read with Section 114 of IPC and sentence has been imposed for 10 years' R.I., with the fine of Rs.5,000/- and further S.I., of one month for default of payment of fine and the accused is also held guilty with the offence punishable under Section 506(2) read with 114 of IPC and the sentence has been imposed of one year's R.I. with the fine of Rs.1,000/- and one month of S.I., for default of payment of fine.
2. As per the prosecution case the complaint was filed by the victim – PW-1 aged 15 years that on 7.7.2005 during the night time at about 3.30 to 4 O'clock when she had gone for toilet in the open area in front of her hut and when she was coming back, Imran (Juvenile), Salimbhai Painter (appellant - accused) and Makku Mehboob Shaikh (Juvenile), all the three came nearby and before she speaks anything, Salimbhai Painter (appellant – accused) overpowered and shut her mouth and all the three pulled her to the nearby taxi and at that time Makku Mehboob Shaikh caught hold of her hands and after she was thrown in taxi, Imran and Salim came inside the taxi and door of the taxi was closed and she had attempted to shout, but since her mouth was shut by overpowering it did not sound outside and she was made to sleep on the back seat of the taxi and rape was committed by Imran and thereafter by Salim. Thereafter, the door of the taxi was opened and over the coat, which was lying in near taxi, Imran again raped her. They gave threat to her that she should not inform to anyone otherwise she will be killed and thereafter they left. The pyjama, which was removed by Makku and dupatta were thrown by them in the Chandola Lake. The victim was frightened and she, because of the threat given to her, did not complain to her parents. Thereafter, when the pain started in her stomach, she informed to her mother and thereafter in the evening time both informed the father and the complaint was filed with Vatva Police Station.
3. The police investigated into the complaint.
However, as two accused namely; Makku and Imran were juvenile, the charge-sheet was filed against Salim – appellant herein. The case was thereafter committed to the Sessions Court being Sessions Case No.326 of 2006.
4. The prosecution, in order to prove the guilt of the accused, examined 12 witnesses, whose details are mentioned by the learned Sessions Judge at paragraph 4 of the judgement and the prosecution also produced the documentary evidence of 21 documents, the details of which are mentioned by the learned Sessions Judge at paragraph 4 of the judgement. The learned Sessions Judge, thereafter, heard the prosecution and the defence and found accused guilty for the offence punishable under Section 376 (2)(g) and Section 506(2) of IPC. The learned Sessions Judge thereafter heard the prosecution and the accused on the aspects of sentence and has imposed the sentence as referred to herein above. Under these circumstances, the present appeal before this Court.
5. The learned Counsel appearing for the parties have taken us to the entire evidence on record. We have considered the judgement and the reasons recorded by the learned Sessions Judge and we have also heard Mr.Madansingh Barod, learned Counsel for the appellant and Mr.Pandya, learned APP for the State.
6. The evidence of Dr. Bharghavbhai – PW-7 (Exh.18) fully supports the case of the prosecution in two ways; one is for the sexual intercourse and the samples taken of Urethral swab and Vaginal swab of the victim. The another is that the medical history given by the victim before the doctor and so recorded in the medical certificate fully supports the case of the prosecution. In the medical history, there is reference to rape committed by the three persons; one was Imran, another was one Buddha and there is also reference to Makku, but the victim said that Makku did nothing bad with her. As per the medical history rape was committed twice; one inside the taxi and another on the coat by these two persons; one Imran (Juvenile) and another Buddha (who, as per the prosecution case, is the appellant herein – Salim). The FSL report has come on record at Exh. 46 through the evidence of PW-12, Madansinh – I.O., Exh. 39 and as per the FSL report and more particularly serological report, it was found that the the accused was having blood group and semen of 'AB' and the semen found in the vaginal swab as well as urethral swab was also of 'AB' group. The semen was also found on the pyjama which was also of 'AB' group. Under these circumstances, the presence of the accused and appellant having sexual intercourse with the victim is fully proved by the scientific evidence.
7. In the evidence of victim – PW-1 (Exh. 5) on 20.2.2007, when her examination-in-chief and cross-examination in part were completed, she had fully supported the case of the prosecution. She had also identified the accused, who was present in the Court and she fully supported the incident of rape against all the accused as per the complaint. She had also identified pyjama, which was put on by her at the time of incident and her dupatta also was identified by her. She deposed that Imran (Juvenile) and Salim Painter accused herein had committed rape. In the cross- examination, she stated that as Imran and Makku were molesting her, she had stopped going for collecting water at the place of the residence of Imran and Makku. The response as narrated by the victim herself of the incident even though question was not asked appears to be by way of natural and it would also show the normal conduct of a girl aged 15 years showing resistance to such molestation by other boys. Even when the question was put to her that why she had not informed her mother, when she had gone for toilet during 2 to 3 O'clock in the morning, she responded by stating that since her mother had slept after taking sleeping pills, she did not wake up her. It appears to us that the evidence recorded, including the cross-examination of 20.2.2007 has been rightly relied upon as trustworthy by the learned Sessions Judge in view of the existence of scientific evidence of FSL and the evidence of doctor fully supporting the case of the prosecution. Unfortunately, since the Court time was over, the cross-examination of the victim was postponed and further cross- examination continued on 4.4.2007, roughly after two months. In the subsequent cross-examination, which was recorded on 4.4.2007, the victim, for the reasons best known to her or on account of any compulsion or otherwise, appears to have made a total turn by stating contrary to earlier statement, not only than stated in the examination-in-chief, but also in the cross- examination, which came to be recorded on 20.2.2007. It is on account of the same, the learned APP had to request the Court for declaring the victim as hostile at the later point of time and permission was granted for cross-examination and she thereafter denied involvement of the accused in the incident.
8. Considering the facts and circumstances of the case, we are in agreement of the view taken by the Sessions Judge that the possibilities of compelling the victim by the accused cannot be ruled out and such an action on the part of the accused could be termed as interference in the system of administration of justice. Therefore, it appears to us that keeping in view the doctor's evidence and the FSL report fully supporting the case of the prosecution, the learned Sessions Judge has rightly relied upon the evidence of the victim recorded on 20.2.2007. We are conscious of the facts that whenever the evidence of any witness or the victim is to be considered for the offence under Section 376, the evidence has to be trustworthy and then only the conviction can be based, but at the same time in the present case it is not a matter of recording conviction only based on the evidence of the victim, but there is further corroboration by the scientific evidence showing the presence of the accused at the time of the incident and showing the proof of sexual intercourse with the victim since the semen of the accused having AB group is found from the vaginal and urethral swabs of the victim. There is additional corroborative material by the evidence of doctor – PW-7 (Exh.18). Under these circumstances, it is on account of the proof available for the involvement of the accused at the time when rape was committed and the proof available for having sexual intercourse by the accused with the victim, coupled with the evidence of the doctor on the aspects of medical history, even if the victim was declared hostile at the later point of time, the evidence to the extent of supporting the case of the prosecution recorded on 20.2.2007 deserves to be more reliable. Hence, keeping in view the peculiar circumstances referred to herein above, it is not possible for us to accept the contention of the learned Counsel for the appellant that the learned Sessions Judge has committed error in relying upon the deposition of the victim dated 20.2.2007 in part and not considering the later part of her cross- examination. If the Court finds that the witness after the matter was adjourned for about two months and/or due to ulterior reason is attempting to take different stand from the statement made earlier outright, in normal circumstances, the finger of guilt even for creation of such circumstances would go to the beneficiary, who will be accused in the present case. If such an approach on the part of the Court is not appreciated, it would result into encouraging the accused either themselves or through the relatives or otherwise to frustrate the lawful evidence available before the Court of law and would consequently adversely effect the system of administration of justice. Therefore, we find it proper to accept the approach on the part of the learned Sessions Judge in finding credibility of evidence recorded of the victim on 20.2.2007 and not relying upon or rather discarding the other evidence recorded on 4.4.2007.
9. The attempt was made by the learned Counsel for the appellant to further conduct that the benefit of doubt even in the conduct of the victim should be made available to the accused.
10. In our view all subsequent depositions recorded of her on 4.4.2007 would be of no credence. As we have observed earlier, it appears to be a systematic attempt to frustrate the evidence and also to tamper the witness, when her deposition is on in the Court of law. The third party, who is not at all concerned would have no temptation to interfere in such a course being conducted in the system of administration of justice. If reasonable prudence is applied, the guilt, if any, for such purpose would go to the beneficiary of such activity or the attempt. The prosecution by no stretch of imagination is to be benefited and the benefit, if any, may be as that of the accused, who is to face the consequence of enforcement of law. If the system of administration of justice is read to extend the benefits, may be created one, when the deposition of the witnesses has already come on recorded in part such, in our view, would hit at the root of the system of criminal jurisprudence. Therefore, we find that such being the peculiar circumstances, no benefit should endure to the accused so as to get away from the clutches of law and its enforcement. Hence, the said contention cannot be accepted.
11. The learned Counsel for the appellant next contended that there was no injury found on the body of the victim even as per the evidence of the doctor, nor there was any injury on the private parts of the victim. It was, therefore, submitted that it cannot be said that the physical relationship or sexual intercourse was by way of compulsion or against her consent.
12. The matter, if considered as per the age reported as that of 15 years, consent would be irrelevant, more particularly when the birth certificate had come on record (Exh. 50) showing that her birth- date was 26.10.1991 and the incident was on 7.7.2005, therefore, in any case, the age would be less than 16 years and there is no defence raised for challenging the genuineness of the certificate for registration of the birth of the victim. Even if the contention is considered for the sake of examination about the doubtful evidence of the age of the victim, then also when three persons have overpowered a minor girl aged 15 years, in a case when the rape is committed by one and another, it is not necessary that in every case there would be injury on the body of the victim for showing resistance. The victim herself has stated that her mouth was shut by overpowering and the door of the taxi was closed and, therefore, merely because the injury marks are not found on the body of the victim or on private parts of the victim, in our view, it cannot be said that the prosecution case for commission of rape as alleged against the accused deserves to be discarded. Therefore, the contention cannot be accepted, keeping in view the peculiar facts and circumstances of the present case, more particularly when the other medical evidence is also there on record for supporting the case of the prosecution.
13. The learned Counsel for the accused did contend that the another accused 'Imran' (juvenile) who was alleged to have been involved was having semen of 'AB' Group which was found from the vaginal and urethra swab of the victim and hence it could not be said that the case was proved against the present appellant accused beyond reasonable doubt merely because his semen was of 'AB' Group.
14. If the contention is closely scrutinized, it appears that existence of semen in vaginal swab is not a must for proving a case of rape. Further, even if it is considered that it is one of the relevant circumstances then also it is to be considered with other corroborative pieces of evidence of the medical history given before doctor and testimony of the victim with identification of accused – appellant before the Court. Further it is not the case of the prosecution that only one has committed rape but the case is that Imran and appellant – accused both have committed rape. Under the circumstances, the contention cannot be accepted.
15. The learned Counsel next contended that there was delay in filing complaint and, therefore, the benefits should be made available to the accused. The said contention, in our view, cannot be accepted for the simple reason that sufficient evidence has come on record for explaining the delay in filing of the complaint. Therefore, it is not possible for us to find that the delay has, in any manner, adversely affected the case of the prosecution.
16. The learned Counsel for the appellant next contended that the enmity of the victim with the accused deserves to be considered and in the submission of the learned Counsel for the appellant, it is on account of the enmity between the wife of the accused and the victim the possibilities of the wrong involvement of the accused cannot be ruled out. It was, therefore, submitted that the benefit of such circumstances would be available to the accused.
17. In our view, the said contention is also meritless because it is not only a matter of implications by oral evidence, but it is a matter where the involvement of the accused is proved by scientific evidence and medical evidence. Therefore, the ground of enmity would not be available for any additional benefit to the accused, so as to frustrate the case of the prosecution.
18. The learned Counsel for the appellant contended that if such an incident of gang rape has occurred but the prosecution could bring at least single independent witness but no independent witness is examined by the prosecution and the story of gang rape or any rape is unbelievable.
19. It is true that there is no witness but in a case of rape any eye witness will be a rare possibility. Further time is early morning of 3.00 during which neighbours may be in the deep sleep. Further, when scientific and medical evidence is available coupled with reliable part of evidence of victim, it is not possible to accept the contention that non-availability of any independent witness would be fatal to the case of the prosecution.
20. The learned Counsel next contended that the history given to the doctor by the victim by the accused is otherwise. In the submission of the learned Counsel for the appellant the accused on the contrary scolded the other two accused and the victim and, therefore, it was submitted that there was no involvement of the accused, but on the contrary, it is on account of the said incident the accused has been wrongly involved by the victim.
21. In our view, when the case is to be considered of the prosecution, the evidence is to be considered after taking into consideration all the materials available on record. The accused in normal circumstances would not admit the guilt and even if it is admitted, he might disown it at the time of trial. It is true that such history before the doctor has relevance, but if the genuineness is to be tested, it runs counter to the scientific evidence for showing his presence and for having sexual intercourse with the victim.
Therefore, we find that such medical history given by the accused is unreliable, nor is genuine for the narration of the incident by the accused. Hence, the said contention, even if examined, would not, in any manner, adversely affect the case of the prosecution for showing the guilt of the accused.
22. We may record that learned Counsel for the appellant did draw the attention of the Court to certain decisions but we find that we need not narrate the same, since we find that they are not relevant keeping in view the facts and circumstances of the present case.
23. The learned Counsel for the appellant lastly contended that keeping in view the facts and circumstances of the case, the Court may take lenient view on the aspects of sentence and the sentence be reduced by seven years by adjusting the sentence already gone of more than four years from seven years.
24. We find that it is not a matter where the sentence deserves to be reduced since it is a case of gang rape and the involvement of the accused is found proved by the prosecution. We find that in a case of gang rape the minimum punishment provided is of 10 (ten) years and the sentence could also be more, but the learned Sessions Judge has imposed sentence of 10 (ten) years and the State is not in appeal for enhancement and, therefore, we leave it at that stage, but suffice it to observe that there is no case for reduction of the sentence as contended by the learned Counsel for the appellant.
25. In the result, the appeal fails. Hence, dismissed.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod