IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 198 of 2012 With CRIMINAL APPEAL NO. 423 of 2012 With CRIMINAL APPEAL NO. 726 of 2012 With CRIMINAL REVISION APPLICATION NO. 135 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ================================================================
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 ?
================================================================ TOSIFKHAN @ TARIFKHAN USMANKHAN GASHURA Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
CR.A No.198/2012 MR ANKIT Y BACHANI, ADVOCATE for the Appellant(s) No. 1 MR PP MAJMUDAR, ADVOCATE for original complainant.
MR SP MAJMUDAR, ADVOCATE for original complainant. MR HL JANI, APP for the State.
CR.A No.423/2012 MR AMIT N CHAUDHARY, ADVOCATE for the Appellant(s) No. 1 MR HL JANI, APP for the State.
CR.A No.726/2012 MR HL JANI, APP for the State.
MR ANKIT Y BACHANI, ADVOCATE for the Opponent No. 1 CR.RA No.135/2012 MR PP MAJMUDAR, ADVOCATE for the Applicant No. 1. MR HL JANI, APP for the State.
================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/10/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These proceedings arise out of a judgement dated 14.2.2012 rendered by the learned Additional Sessions Judge, Palanpur, in Special Atrocity Case No.63/2010. Dashrathbhai Khemabhai Chauhan and Tosifkhan @ Tarifkhan Usmankhan Gashura were charged with offences punishable under section 365 read with section 114 of the IPC and under section 506(2) read with section 114 of IPC. Accused no.1 was also charged with offence punishable under section 376 of the IPC.
2. By the impugned judgement, accused no.1 was convicted for offence punishable under sections 376, 365, 506(2) of the IPC. He was for the offence under section 376 sentenced to rigorous imprisonment for seven years. For the remaining offences, lesser punishments were imposed. Substantive sentences were ordered to run concurrently. Accused no.2 was convicted for offence punishable under sections 365 and 506(2) of IPC. He was sentenced to imprisonment for one year and six months respectively. Such sentences were made concurrent.
3. Briefly stated, the prosecution version was that one Ms. ‘N’ (hereinafter referred to as “the victim”) lived with her family at village Madana, District Palanpur. On 7.9.2010, at about 5:30 in the evening, when she was going from her agricultural field to her house, the accused persons were standing on the road besides their jeep. Accused no.1 who was a distant relative of the victim, called her. Thinking that he had some work, she went to him. He covered her face with his hand and the two accused lifted her and put her in the vehicle. They thereafter, sped away taking her along with them. Accused no.2 dropped accused no.1 and the victim near Mount Abu bus stand. Accused no.1 thereafter, took her to Chandravati guest house and stayed there for a couple of nights. They also stayed in one Meera hotel. At these places, accused no.1 committed forcible intercourse with her.
4. The victim girl ‘N’, PW1, was examined at exh.15. She deposed that she belonged to schedule caste community.
On 7.9.2010, in the evening, she had gone to her field with her mother to fetch fodder. She was coming back home at 5:30 alone. On the way, near SRP camp, accused no.1 and accused no.2 were standing with a jeep. They called her. Since accused no.1 was her uncle, she went there. He covered her face with his hands and forced her to sit in the vehicle. Accused no.2 drove off the car. Accused no.1 threatened to kill her if she made noise. She was taken to Mount Abu, from where accused no.2 left in his vehicle. Accused no.1 took her to Chandravati guest house where he had sexual intercourse with her three times in the night. Next day, he brought her to hotel Meera where also he had intercourse with her twice. Once again accused no.1 brought her to Chandravati guest house where also they stayed for a night. Next day, at 11 O’ clock, they started coming to Ahmedabad in a luxury bus. They reached Gandhinagar, where they got down. Accused no.1 told her to wait there saying that he would return in half an hour. Since he went away at 5 O’ clock, in the evening, she called her uncle to Gandhinagar who came from her village Madana at 7:30 in the evening. She narrated the incident. She was thereupon, taken to police station to lodge the FIR which was produced at exh.16. She had received injuries on her body such as bruises and bite marks on her finger.
4.1. In the cross examination, she stated that she had studied upto 9th standard in SRP camp school. SRP camp was situated 50 meters away from her house. The camp has two gates on which round the clock, guards are posted. There is distance of barely 60 meters between the two gates. South of second gate was her field. Her house was to the north of the gate. She knew the SRP people since she was studying in school situated in SRP campus itself. Near the gate no.2, Hanuman temple is situated. Many people come for visiting the temple. She disowned certain statements which she had made in her police statement claiming that the police had apparently recorded wrong statement. She had stated in the police statement that at Gandhinagar, Babubhai and her neighbour Sureshbhai Jivanbhai Chauhan had come. In the police statement she also had stated that on the second day at Mount Abu, they (i.e. she herself and accused no.1) had gone for sightseeing. She however, claimed that police recorded such statement wrongly though she never had stated so. She could not state whether while travelling from Mount Abu to Ahmedabad, near Ambaji there is Chapri checkpost where all vehicles are checked. She however, admitted that at Khedbrahma Mataji temple, the bus had halted for one hour. She however, denied that she had snacks there stating that accused no.1 had caught her hand and she was made to sit in the bus. When asked whether for three full days she did not have any meals, she stated that accused no.1 would call the waiter and would take the tray from outside without allowing the waiter to enter the room. She admitted that her family has a borewell from where water was supplied to accused no.1 and that is how she knew him. She however, denied that due to this she had come close to him. Defence put detailed suggestions of an affair between the accused and the victim. She however, denied them all.
5. Dr. Rajiv Durgeshbhai Patel, PW2, exh.19 had carried out the physical examination of the victim on 10.9.2010. He produced the certificate at exh.21. In his deposition, he stated that the victim had given history of sexual intercourse by accused no.1 three or four times at Mount Abu. He had noticed two to three tears in her hymen. Significantly, in the police yadi at exh.20, with which the victim was sent to the doctor, it was mentioned that there were bruises and bite marks on the victim and she was complaining about being raped. Despite this, the doctor did not record any injury in the certificate exh.21 nor did he mention about any such injury marks on her in his deposition before the Court. In the history also, he mentioned “As per rape victim, Dashrath Chauhan done intercourse with her 3 or 4 times at time she was unconscious at hotel in Mount Abu.” Strangely, the victim girl herself had never claimed to have been unconscious either in the FIR or in her deposition before the Court.
6. Dr. Lokeshkumar Purshottamchandra Mittal, PW3, exh.23 had examined the accused. He found him physically developed. He had recorded the history of sexual intercourse voluntarily with the victim.
7. Several articles were collected under panchnama. It is not necessary to record all these panchnamas in detail. We may refer to deposition of Nishant Jagdish Prasad Chorasia, PW9, exh.41. He was the owner and manager of Chandravati Palace guest house at Mount Abu. He deposed that he was running such guest house since 16 to 17 years. On 12.9.2010, the police had shown him the photograph of one person. He identified him as the person who had stayed in the guest house on 7.9.2010. He showed the guest house register in which his name was recorded as Chauhan Dashratbhai Khemabhai. He also identified the victim girl as the person who had accompanied Dashratbhai to his guest house. He had allotted room no.101 to them on 8.9.2010. Next day on 9.9.2010, they paid him Rs. 350/ and vacated the room.
7.1. In the cross examination, he stated that he resided with his family in the guest house itself. If there was any suspicious movement of any of the guests, he would drive them out. He had not found any such suspicious movement of the accused or the victim. Most significantly, he stated that on both occasions, the room rent of total of Rs.700/ was paid by the victim.
8. Dashrathbhai Hirabhai Chauhan, PW12, was examined at exh.47. He gave the brief description of the victim girl missing on 7.9.2010 and their search for her and ultimately finding the girl who had after her return, narrated the incident to him.
8.1. To this witness, the defence suggested that he had forced the victim to given a false complaint and that the father of the victim therefore, was not willing to depose. He denied the allegation.
9. Revaben Gamanbhai Chauhan, PW15, exh.51, the mother of the victim also deposed about the victim girl missing from 7.9.2010 and ultimately finding her few days later.
10. Rameshbhai Ishwarbhai Patel, PW17, exh.55, narrated the steps taken by him during the course of investigation.
11. The FSL report and the serological report exh.63 and 65 established presence of human blood of the group of the victim and the semen of group of accused from the clothes of the victim.
12. The defence examined Sureshbhai Jivabhai Chauhan, DW1, exh.69 as the defence witness. He deposed that the victim and accused no.1 both had disappeared from village Madana. They were therefore, looking for them. He had spoken to accused no.1 and persuaded him to return. They had thereupon at his persuasion come to Chappi village where they had asked accused no.1 to get down and leave, since there was possibility of a fight taking place in the village. He had thereafter, taken the victim to Madana. The victim herself was reluctant to return to Madana. He however, cajoled her and persuaded her to return home. On the way, he had called the uncle of the victim and informed him that she was found.
13. One Tekchandbhai Vasudevbhai Vachani, DW2, exh.70, was the owner of the hotel Meera at Mount Abu. He deposed that on 8.9.2010 at 10:15 in the morning, accused no.1 and the victim had come to his hotel. They had stayed in room no.4. He did not find anything unusual about their behaviour. They stayed there till 7:30 in the evening and paid Rs.350/ for rent.
14. With respect to the age of the victim girl, there is hardly any dispute. Her date of birth in official record is stated to be 3.1.1992. She was thus over 18 years of age on the date of incident.
15. From the evidence on record, few things immediately become clear. That the accused no.1 and 2 and the victim travelled in a jeep from village Madana to Mount Abu on 7.9.2010. Accused no.1 and the victim stayed at two different guest houses in Mount Abu during their stay of three days. During such period, the accused no.1 had sexual intercourse with her on few occasions.
16. From the evidence of the victim, that of her relatives i.e. her uncle Dashrathbhai, her mother and even the defence witness, these facts emerge quite clearly. The deposition of the victim that the accused had sexual intercourse with her is not even seriously challenged. The history given by the victim to the doctor as also by the accused himself to the doctor further corroborate this. The medical evidence in the form of Forensic science analysis and serological report further confirm these aspects. Dr. Rajiv Durgeshbhai Patel, PW2, exh.19, who examined the victim found two or three tears in her hymen and the vaginal passage showed tenderness and pain.
17. The question is, was the victim forced into accompanying the accused no.1 and did he commit intercourse with her against her wish? In this context, the deposition of victim becomes crucial. We may recall that she had deposed that on 7.9.2010 at about 5:30 in the evening when she was proceeding from her field to her house, accused persons were standing on the road. She was lifted and put in the vehicle from where they sped away. She was taken to Mount Abu where she was kept in a room at two different places. For three days, accused no.1 had sexual intercourse with her against her wish.
18. To our mind, in this context, the deposition of the victim is simply not believable. She admitted that between her house and the field, the SRP camp is located. Camp has two gates. Both gates are heavily guarded. One of the gate is barely 50 meters away from her house. Her field is situated at a short distance south of the second gate. She knew the SRP people since she herself had studied in the school situated inside the camp. When she was picked up, according to her going from the field to her house, she was thus very close to the SRP gate which had guards round the clock. Further, it is impossible to believe her version that she was kept for three full days at Mount Abu against her wish. Accused no.1 and the girl moved from place to place staying in guest houses and also travelled by bus while leaving Mount Abu. At Ambaji, there is a checkpost where all vehicles are checked. At Khedbrahma, there is a famous temple where the bus stopped for an hour. During this period also she never complained to anybody, either to the bus passengers or to the people near the temple. Her version about her calling uncle Dashrathbhai at Gandhinagar is also hugely doubtful. In fact, as per Sureshbhai Jivabhai Chauhan, DW1, after the girl and accused no.1 went missing from the village, all the village people started looking for her. When he contacted accused no.1, he reasoned with him to come back. He somehow persuaded him to return. When they met at Chappi, he asked Dashrathbhaiaccused no.1 to leave since the situation in the village was tense. In fact the victim girl was still not convinced about returning. He had to persuade her more. In contrast, to the victim girl’s deposition that she called her uncle Dashrathbhai at Gandhinagar, Dashrathbhai himself in his deposition had stated that he was informed by Sureshbhai Jivabhai Chauhan,( DW1), that the girl was found. The victim in her deposition admitted that she knew accused no.1 since her family had a borewell from where the water was supplied regularly to accused no.1. It thus becomes clear that the claim of the victim that she was forcibly carried in a jeep from village Madana to Mount Abu and kept there for three full days against her wish was simply not believable. At no place she ever made any complaint to anyone, shouted or cried for help. She could have complained to the guest house owner, to the police who would be present at various places at a hill station such as Mount Abu, to the bus driver or conductor or passengers in the bus when they were travelling from Mount Abut to Gandhinagar. She did none of these. Both the owners of the guest house at Mount Abu namely, Chandravati guest house and Meera guest house, did not notice anything unusual about the couple. In fact, owner of Chandravati guest house stated that rent of Rs.700/ for two days was paid by the victim. This in our opinion is crucial. He was the prosecution witness. This part of his deposition was not challenged by the prosecution. Further though the victim girl claimed to have received some bruises and injuries, Rajiv Durgeshbhai Patel, PW2, exh.19, who examined her did not record any such injuries in the certificate nor mentioned about such injuries in his deposition. Though the girl was brought before him with police yadi exh.20, in which her statement of injury was recorded, the doctor did not notice any such injury. In the history given by the victim girl, she claimed that accused no.1 had intercourse with her three or four times when she was unconscious. Neither in the FIR nor in her deposition, she ever mentioned about being unconscious.
19. The cumulative effect of our discussion is that we find deposition of the victim girl of being forcibly taken away by accused no.1 and accused no.2 and thereafter, being raped by accused no.1 against her wish is simply not believable.
20. Under the circumstances, we are of the opinion that learned committed a serious error in convicting both the accused. The victim girl being over 18 years of age, consent in sexual intercourse was material.
21. Counsel for the complainant relied on decision of Supreme Court in case of Md. Iqbal v. State of Jharkhand reported in 2013(O) GLHEL SC 54251. In the said case, however, Supreme Court has discussed the evidence on record and believed the allegations of the victim of being gang raped in light of provisions contained in section 114A of the Evidence Act. We do not notice any ratio precedence laid down in the said judgement which could be applied in the present case.
22. In the result, judgement of the learned Additional Sessions Judge, Palanpur, dated 14.2.2012 in Special Atrocity Case No.63/2010 is set aside. The conviction and sentences of both the accused are reversed.
Criminal Appeal No.198/2012 is allowed. Bail bond stands cancelled. Disposed of accordingly.
Criminal Appeal No.423/2012 is also allowed. The appellant shall be released forthwith, if not required in any other criminal case. Disposed of accordingly.
Criminal Appeal No.726/2012 filed by the State for enhancement is dismissed. Criminal Revision Application No.135/2012 filed by the original complainant for enhancement is also dismissed.
R&P may be transmitted back to the concerned trial Court.
(AKIL KURESHI, J.) raghu (R.P.DHOLARIA,J.)