CR.A/641/1998 of SOMABHAI SHANABHAI Vs STATE OF GUJARAT on 9 December 2003

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-------------------------------------------------------------- SOMABHAI SHANABHAI

Versus

STATE OF GUJARAT

-------------------------------------------------------------- Appearance:

1. Criminal Appeal No. 641 of 1998

MR KR RAVAL for appellant No. 1

THROUGH JAIL for appellant No. 1

MR IM PANDYA, APP for Respondent No. 1

-------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS

and

HON'BLE MR.JUSTICE A.L.DAVE

Date of decision: 09-10/12/2003

ORAL JUDGEMENT

(Per : HON'BLE MR.JUSTICE KSHITIJ R.VYAS)

The appellant having been convicted of the offence punishable under Section 376 of IPC, and been sentenced to suffer RI for 10 years and to pay a fine of Rs.1,000/-, in default to undergo SI for one month, by the learned Addl. Sessions Judge, Bharuch in Sessions Case No.125 of 1996, has filed this appeal challenging the said judgment and order dated 1.7.1998.

2. As per the prosecution case, on 23.1.1996 at about 4.00 p.m., when the prosecutrix was all alone in her field, the accused appellant came and dragged her to Sedha of the field and thereafter removed her Sari and Petticoat forcibly and had sexual intercourse against her will. The prosecutrix thereafter went towards the canal side where she met PW2 Madhuben . The prosecutrix narrated the entire incident to her. As the prosecutrix was not feeling well, she lied down there and Madhuben called for help. PW3 Raiji Girdhar, PW4 Haribhai and one Karsan Havaldar came there, on hearing shouts of Madhuben. The prosecutrix also informed them about the act having been committed on her by the accused. The prosecutrix thereafter came with Karsan Havaldar and Madhuben to the village bus stand and inquired about the Sarpanch. As the Sarpanch was not available, the prosecutrix went to Jhagadia with her father and brother. The prosecutrix filed the complaint Exh.9 on the next day, i.e. 24.1.1996.

The Police Inspector Shri S.A.Desai of Jhagadia Police Station started the usual investigation on the basis of the complaint filed by the prosecutrix, by attaching the clothes of the prosecutrix, drawing the panchnama, sending the prosecutrix for medical examination, preparing the panchnama of the scene of offence and recording the statements of the witnesses. After collecting sufficient material against the accused, the charge sheet was filed against the accused in the Court of learned JMFC, Jhagadia, who in turn, committed the same for trial to the Sessions Court, at Bharuch, as the offence involved is exclusively triable by the Sessions Court.

The charge Exh.5 for the offence under Section 376 and 506(2) of IPC was framed against the accused. The accused pleaded not guilty to the same and claimed to be tried. In the further statement recorded under Section 313 of the Criminal Procedure Code, accused came out with the defence of total denial. According to him, he has been falsely involved in the offence.

After appreciating the evidence on record, the learned Addl.Sessions Judge, as stated above, found the accused guilty of committing the offence under Section 376 of IPC. The learned trial Judge, however, acquitted the accused for the offence punishable under Section 506(2) of IPC and has ordered the accused to undergo the sentence as mentioned above.

3. We have heard learned Advocate Mr.K.R.Raval for the appellant and Mr.I.M.Pandya, learned APP for the respondent State.

Mr.Raval for the appellant submits that the evidence of the prosecutrix is not trust-worthy and reliable. According to him, there are material contradictions in the evidence of the prosecutrix as well as the other supporting witnesses, namely, Madhuben, Raiji, and Haribhai regarding the incident in question. He further submits that from the evidence, it clearly transpires that many farmers were there in their fields when the incident had taken place and that the prosecutrix could have shouted for help and despite that, the prosecutrix did not shout for help. The said act of the prosecutrix would go to suggest that she was a consenting party. Finally, Mr.Raval submits that the sentence of 10 years imposed upon the appellant is too harsh and therefore, leniency may be shown as far as the sentence is concerned. Mr.I.M.Pandya, learned APP, on the other hand, supports the judgment of the trial Court in toto.

4. The prosecutrix Dhanuben is the complainant in the instant case. She has been examined as PW1 at Exh.8. She, in her evidence, has remained consistent with the version given by her in the complaint filed by her. According to her, on the day of the incident, she had gone to her field at about 4.30 p.m. and she was all alone in the field. At that time, the accused had run after her and dragged her through the field where the crop was standing. He removed her Petticoat. Even though she requested the accused to leave her, the accused pressed her neck and closed her mouth and thereafter committed rape on her. The accused thereafter ran away. She had gone to the canal side and met PW2 Madhuben to whom she narrated the entire incident. At that time, other persons namely, Raiji and Haribhai also gathered there. She narrated the entire incident to them also. She was thereafter taken to the house of the Sarpanch and as the Sarpanch was not available, she was taken to Jhagadia by her father. Firstly, she had gone to her brother Mahendrabhai and the complaint was filed. She has been cross examined at length. However, nothing substantial has been brought out which may be of help to defence. The defence has tried to bring out the contradictions, viz. that the prosecutrix in the complaint has not stated that her mouth and neck were pressed by the accused, which she denied. In fact, the so-called contradictions have not been proved. In that view of the matter, it is clear that when her mouth and the neck were pressed, she could not have shouted for help.

PW2 Madhuben Exh.10, in her evidence, has clearly stated that on the day of the incident, she saw the prosecutrix in semi unconscious condition. On being asked the prosecutrix, she informed her that the accused committed rape on her. Thereafter this witness called the other persons working in the field. According to her, Raiji and Haribhai and other persons came there. Raiji PW3 Exh.11 and Haribhai PW4 Exh.12, who rushed to the spot on hearing the shout of Madhuben, have stated in Raiji PW3 Exh.11 and Haribhai PW4 Exh.12, who rushed to the spot on hearing the shout of Madhuben, have stated in their evidence that the prosecutrix told that the accused committed rape on her.

5. Having close scrutiny of their evidence, we see no inconsistency in it. They narrate the incident in natural manner. They are the first persons to whom the prosecutrix informed about the accused having committed rape on her.

At this stage, it is necessary to refer to the medical evidence. Dr.Jitendra Rathod, Medical Officer of the Community Health Centre, Jhagadia has been examined as PW10 Exh.25. According to him, the prosecutrix was brought with Police Yadi on 24.1.1996 at 7.00 a.m. He has stated that the prosecutrix has given the case history. She has given the name of the accused who had committed forcible intercourse with her after dragging her to the field by removing her clothes. As per the has stated that the prosecutrix has given the case history. She has given the name of the accused who had committed forcible intercourse with her after dragging her to the field by removing her clothes. As per the evidence of Dr.Rathod, on examination of the prosecutrix, he observed as under:

I) Gen.Exam: A normally built & nourished widow aged about 40 yrs., studied upto Std.7th & a mother of three children. Her husband expired 6

yrs. before & given that she is living with her parents.

Menstrual Hist.: No menses as she had undergone Hysterectomy operation 6 yrs. before. According to her, she has not taken the bath after the incident - on yesterday.

II) The clothes: The clothes which are worn by her at present, are the same which she had worn yesterday evening, i.e. at the time of incident. There is vertical tearing of her Chaniya - front & middle part-4/3. The other clothes - Sari &

Choli were in good condition. There is no tearing or loss of any part.

There are no marks staining either of the blood or semen found on the clothes. The clothes were captured & handed over to the police.

The Breasts: They are flabby, loose & pendulated & not tender & there are no marks of ext.injuries on them.

Presence of Blood, Seminal fluid or the mud on the body: Nothing is found on her person.

Marks of Violence on the body:

(i) Five abrasions on the back of the (Rt)

Elbow. - Size varying from 1/2 cm X 1/2

cm to 1 cm x 1/2 cm scabs +

(ii) Five abrasions on the back of the

Lt.Elbow. - Size 1/2 cm X 1/2 cm scab +

(iii) Bruise on the back of the lower of the (Lt) upper arm. Red in colour. Size 1.5

cm X 0.5 cm.

(iv) Abrasion on the (Lt) knee. Size 1 cm X

0.5 cm. scab.

(v) Two small abrasions on the inner side of the side of the Rt. leg. Size: 1/2 mm X 1/2 mm scabs +

(vi) Multiple linear scratches over the inner side of the (Lt) knee. Size varying from 1 cm. to 1.5 cm in length scabs +

(vii) Multiple bruises scratches over the Rt.

Scapular region.

��Bruise - Red in colour.

— Scratches - 1 cm X 1/2 mm to 1.5 cm X 1/2

mm. scabs.

(viii) Multiple bruises - Red with scratches

over the back of the both sides of the

lower chest including the thoracic

vertebral spines. Size varying from 1/2

cm X 1/2 mm to 3 cm X 1/2 mm scabs +

(ix) Linear scratch with lower/3 of the

forearm (Lt) dorsal aspect. Size - 4 cm

in length scab.

(x) A scratch on the Rt. Axilla, below the shoulder jt. near the chest. Size 2 cm X 1/2 cm scab +

(xi) Abrasion on the Rt. fronto parietal region of the head, near the frontal brain line. Size- 1 cm x 1/2 cm scab +

(xii) A scratch on the Rt.Ankle Ant. aspect.

Size 1 cm in length scab.

(xiii) A scratch on the Ant. aspect of the U/3

of the Lt. Thigh. 1 cm in length. Scab.

Pubic Hairs: Black - above 1" in length & not stained either with the blood or marked with the semen. On the combing no loose or foreign hair is found. A sample of hair collected for the

C.A.

Ext.Genitals: No marks of external injuries found on the ext.genitals. Labia majora & minora are not odematous & no staining either with the blood or seminal fluid found on them & on the inner thighs. Labia majora & minora are loose, flabby & are widely separate to pass a finger or an instrument through the Vagina without any difficulty or pain. There is no discharge of any kind from inside the Vagina.

Inner Vagina: There is no recent tearings of the inner vaginal walls. There is no oedema, no inflammatory swelling & discharge of blood or other types of fluid from inside. Vaginal secretion & vaginal swab collected with the help of glass rod for the C.A.

The Hymen: There was no pain or tenderness on touching the hymen ring with a finger or an instrument, or a glass rod. There was no bleeding also from the hymen margins on touching. The hymen orifice was wide enough to pass two fingers & even an instrument without any difficulty.

There were no recent tearing on the hymen rings.

The hymen is represented by several small granular tags of issue.

Dr.Rathod, for the purpose of chemical analysis, collected the following samples and sent to the Chemical Analyser, through Jhagadia Police Station:

(i) Saliva (ii) Saliva Swab (iii) Vain blood in an exalted bulb (iv) Blood Swab (v) Pubic hairs (vi) Finger Nails (vii) Vaginal secretion slides, and (viii) Vaginal Swab.

Dr.Rathod, from the above finding, has given the opinion that no definite opinion could be given as to whether an act of rape was committed or not and that it is advisable to wait for the report of the above samples to come from the Chemical Analyser and to give the final opinion. On the contrary, in the cross examination, he has observed that the injuries sustained by the prosecutrix were of general nature and can be possible during routine activities.

10.12.2003

6. From the evidence of prosecutrix & other supporting PWs, it is clear that the accused has taken advantage of the situation when the prosecutrix was all alone in the field. The evidence of the prosecutrix is natural, trust-worthy and reliable. There is no reason for the prosecutrix to falsely involve the accused in the serious offence of rape. The evidence of the prosecutrix is also corroborated by the supporting evidence. PW4 Madhuben, PW3 Raiji and PW5 Haribhai have totally supported the version of the prosecutrix, to whom the prosecutrix narrated the entire incident. All these witnesses were, at the relevant time, working in their fields and therefore, their presence is also natural. Even though PW10 Dr.Rathod, after examining the condition of the prosecutrix opined that, no definite opinion could be given as to whether the act of rape committed or not, he has clearly stated in his deposition that after examining the report of the Chemical Analyser in respect of Samples 7 and 8, it can safely be concluded that rape was committed on the prosecutrix. Sample 7 is the slide having blood and semen of human being while sample 8 is vaginal swab having human blood together with semen. Apart from that, the injuries sustained by the prosecutrix leave no manner of doubt that she was subjected to rape. The prosecutrix has sustained multiple bruises and abrasion injuries on scapular region and back of the chest, which would support the say of the prosecutrix when she has stated that she was dragged by the accused before she was subjected to rape.

7. In view of the above discussion, we see no merit in the submissions advanced by the learned Advocate Mr.Raval for the appellant.

8. Even on the question of sentence, we hardly see any reason to take a lenient view in the matter. The prosecutrix being a widow, an aged lady and mother of three children, subjected to rape by the accused, who is younger than her, are some of the reasons which in our opinion are sufficient for us not to take the matter lightly. The learned trial Judge, after considering the facts and circumstances of the case, was justified in awarding RI of 10 years to the accused. Suffice it to say that we are in total agreement with the views taken by the learned trial Judge. Thus, taking the overall view of the matter, we see no merit in this appeal. Appeal is dismissed.

����(Kshitij R. Vyas, J.)

����(A.L. Dave, J.)

Sreeram.