CR.A/509/1995 of MOHANLAL AMARAJI MARWADI Vs STATE OF GUJARAT on 29 November 1995

1. Whether Reporters of Local Papers may be allowed to s

2. To be referred to the Reporter or not ? YES

3. Whether their Lordships wish to see the fair copy of the judgment ? NO

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? NO

5. Whether it is to be circulated to the Civil Judge ? YES, to all Criminal Courts.

...T.......T.......T.......J.......T.......T.......T.......J.......T.....Mr. Surin Shah, Advocate {Appointed} for the AppellantMr. J.A Shelat, APP for the Respondent-State ������29-11-1995

ORAL JUDGEMENT

Mohanlal Amarji Marvadi, by this appeal from jail hasbrought under challenge the impugned judgment and order dated21st April, 1995, rendered in Atrocity Criminal Case No. 28 of1994, passed by the learned City Sessions Judge, Ahmedabad,wherein he on his coming to be tried alongwith other threeco-accused persons for the alleged offences punishable underSections 376, 342 and 34 of the Indian Penal Code, and underSection 3 (1)(iii) and 3 (1)(xi) of Scheduled Caste andScheduled Tribes (Prevention of Atrocities) Act, 1989 wasconvicted for the same (alongwith other co-accused) andsentenced to suffer (i) RI. for 10 years and to pay a fine ofRs. 3,000/= and in default to undergo further R.I for sixmonths; and (ii) R.I. for one year and to pay a fine of Rs.500/= and in default, to undergo further S.I for 1 months forthe said two offences respectively.

2. To state the earliest and afresh prosecution case as itgets unfolded through the FIR (Exh. 52) lodged by PW-4Manjula, the incident in question wherein she came to beallegedly raped by Mohanlal Amraji (appellant-accused) andthereafter her modesty outraged by Natubhai Gulabbhai Gadhvi(not before this Court) took place on 17-7-1994 at 6.00 p.m inshed No. 13, Dhaval Estate, situated near Chakudia Mahadev,Rakhial, Ahmedabad. It is the case of the prosecutrix that shebelong to the Scheduled Caste. Further, according to her, onthe aforesaid date and time, Nathubhai Karandan Gadhvi andDilip Gulabsinh Gadhvi, who happen to be original accused Nos.3 and 4 respectively serving as Watchmen came to her and underthe pretext of calling her for fetching water took her to theiroffice situated at Dhaval estate. Thereafter, the said accusedpersons after rolling down the shutters confining her in theroom went away, and though she raised shouts protesting about,none came to her rescue. Thereafter, Mohanlal Amraji and NatuGulabdan Gadhvi, who were staying in the nearby hutments,entered the office by opening-up the shutter, fell her down andin the process, the original accused No. 2 caught her handsand gagged her mouth. First, it was accused No. 1 whocommitted sexual intercourse with her. Thereafter, the accusedNo. 1 caught hold of her hands, and the accused No. 2molested / outraged her modesty and thereafter, both went away.Thereafter, she also came out. At that time, accused No. 2Natu slapped her and asked her to go away. To this Nathu andDilip accused Nos. 3 and 4 respectively present thereexclaimed 'do not beat her more, otherwise there will be a

police case' !! Thereafter, she informed this incident toLilaben - who happens to be wife of Natubhai, saying that herhusband has outraged her modesty. It further appears from therecord that on her way to the police station, she met PW-3, SRPconstable-Gabdulal Ramdayal Sagwal and inquired from him as towhere was the police station as she was raped. Thereafter, onreaching Rakhial Police Station, she gave a complaint (Exh-52)before PW-10 PSI J.A Patel at about 8-00 p.m. Thereafter, PW-4Manjula was taken to PW-1 Dr. R.J Mankadia for her medicalexamination. On the basis of this information, all the fouraccused were arrested. They were also in turn got examined bythe PW-1 and after the investigation was over, all of them cameto be chargesheeted to stand trial for the alleged offencespunishable under Sections 376, 342 and 34 of IPC and Sections 3(1) (iii) & 3(1)(xi) of the Atrocities Act before the CitySessions Court at Ahmedabad.

3. At trial, the appellant as well as the other co-accusedpersons pleaded not guilty and claimed to be tried. It wastheir case that they were falsely implicated. According toNatubhai Gulabbhai Gadhvi (not before this Court) he was aWatchman in Dhaval Estate near where PW-4 complainant - Manjulaand Champak were coming for secret meeting since last about aweek and that he had warned them not to come. Not only thatbut for this purpose, he had also given a complaint to thepolice, but the police did not pay any attention to this. Itis further his case that about 3-4 times he had warned bothManjula and Champak not to come there. According to him,Manjula getting enraged over this issue with a view to takerevenge has filed a false complaint against him. Whileaccording to the accused No. 3 Nathubhai Karandan Gadhvi also(not before this Court), he did not know Manjula or Motibhai.He came to Ahmedabad for service just 20 days before thealleged incident from Kathiyavad. He was arrested from hishouse on 18th. He is innocent and that he is falselyimplicated. According to accused No. 4 Dilip Gulabsinh Gadhvi(not before this Court) he was driving a ricksaw. At about12.00 when he returned home, the police came and arrested him.On police making inquiry, he said that he was knowing nothingabout the incident. He is innocent and falsely implicated.

4. The trial Court accepting and relying upon the evidenceof PW-4 Manjula, convicted and sentenced the appellant and hisother co-accused who are not before this Court as stated indetail in impugned order, giving rise to this appeal.Incidentally, as reported, other three accused persons viz.,Natubhai Gulabsinh Gadhvi, Nathubhai Karandas Gadhvi and DilipGulabsinh Gadhvi have not filed any appeal before this Court.

5. At the time of admission, when this matter was calledout on 14-11-1995, this Court prima facie in view of quite weak and vulnerable prosecution evidence while admitting the appealthough learned Advocate for the appellant had preseed hard forreleasing the appellant on bail, we bearing in mind the graveand serious allegation of gang rape, instead of granting thesaid prayer directed the learned advocate Mr. Saurin Shah toprepare paper-book peremptorily fixing the Appeal for finalhearing on 21-11-1995 with consent of the learned APP Mr. J.AShelat.

6. Heard Mr. Saurin Shah, the learned advocate(appointed) for the appellant and Mr. J.A Shelat, the learnedAPP for the respondent State. According to Mr. Shah, theevidence of PW-4 is not dependable at all with its patentintrinsic infirmities and in that view of the matter, even incase she is corroborated by any other attending circumstanceson the record, it would not be safe to convict the appellant ashas been done by the learned trial Judge in the instant case.Mr. Shah further submitted that PW-4 has materially improvedupon her case in the complaint and has given gloss suiting toher exigencies going even to the extent of falsely allegingrape to accused No. 2 which was not her case even in FIR Exh.52 !! Not only that, but so far as the original accused No. 3is concerned, there also appears to be a clear case of mistakenindentity. Mr. Shah further submitted that from tenor andnature of her evidence before the Court PW-4 appears to be alady of easy virtue, and she appears to have been madescape-goat for claiming unjust ex-gratia compensation to thetune of Rs. 10,000/=. According to Mr. Shah such exgratiacompensation may be a good policy in a given case but at thesametime it is indeed too dangerous as it may provide dishonestand malacious motivation for false accusation to earn cheap,easy money by some unfortunate hard pressed needy desperatepersons !! According to Mr. Shah such ex gratia compensationpolicy is too tempting for any body to allege anything againstanybody, much more when the concerned women or girl issuffering from extreme poverty making her desperate, helplessto survive at any cost, fair or foul !! This appears so fromthe cross-examination of her father PW-2 Motibhai Ranabhai andherself. According to Mr. Shah, the other corroborativepieces of evidence viz., the evidence of PW-2 MotibhaiRatnabhai and PW-3 SRP Constable Gubdulal, is also notdependable. According to Mr. Shah, despite the allegation ofgang-rape, medical evidence on the point that of PW-1 Dr.Makadia is utterly silent so much so that victim Manjula evenrefused to get herself examined by the Gynecologist !! Thiscircumstance of refusal to get herself examined by Gynecologistrenders her evidence further vulnerable and doubtful to beaccepted at its face value !! Making good all thesesubmissions, Mr. Shah has carefully taken us through theevidence of all the prosecution witnesses examined before the Court and on the basis of the same he has utlimately vehementlyurged that when the appellant has been alleged to havecommitted gang-rape, for which the minimum sentence provided isfor 10 years, unless the prosecution evidence is proved to beof dependable nature and clinching enough entirely beyond anymanner of doubt, no order of conviction and sentence ought tohave been passed. Since, in the instant case, according to Mr.Shah, the evidence of victim PW-4 does not inspire thatconfidence, the appellant deserves to be given atleast thebenefit of doubt and accordingly this appeal be allowed,acquitting the accused forthwith.

7. As against the above, Mr. J.A Shelat, the learned APPwith equal vehemance has supported the impugned judgment andorder of conviction and sentence passed by the trial Court.According to the learned APP, there was indeed no reason forPW-4 Manjula to falsely allege against the appellant and threeothers, if indeed no such incident of gang-rape as alleged hadtaken place. In this view of the matter, no exception be takenas regards the order of conviction and sentence passed againstthe accused persons and the same accordingly deserves to beconfirmed.

8. Now, before we enter into the arena of the appreciationof evidence brought on the record, more particularly in theinstant case wherein there is extremely grave and seriousallegation of gang-rape against four accused persons, we indeedneed to be extra careful and sound caution to ourselves bearingin mind two very important aspects involved in the case viz.,on the one hand the overall sensitivity of the alleged gravityand seriousness of the offence, and that too gang-rape onHarijan girl and on the other hand any hasty, over-zealous,emotional, faulty, erroneous appreciation of prosecutionevidence, the resultant outfall of which can be either denialof justice to the victim girl or foisting altogether patentinjustice on an innocent accused !! Further, bearing in mind,on the one side as vehemently submitted by the learned APP ifwe are to decide this matter on the idealistic paddle sweptwith a passion for justice for women, more particularlyobsessed with she being Harijan women, who are undoubtedlythese days, day-in and day-out, are reported to be subjected toall kind of atrocities, cruelties including the rape,gang-rape, molestation, bride-burning and all sorts of insultsand assault, etc., and at the sametime on the othersidebecoming altogether quite oblivious to equally baseless, false,frivolous and fabricated not uncommon accusations these dayslevelled at the slightest pretext playing with the character,image of the innocent, sending him to the extreme penalty oflife and atleast not less than 10 years, we are likely towander away from the path of truth and justice, if the extremeidealism elbows out dispassionate objective approach while

appreciating evidence !! These are the cases where the courthas to swim safe, undisturbed admist the cross-currents flowingeither in favour of the victim or of the accused. We cannotpermit ourselves to be swept like straws and dead-fishes by theprejudice of repeated cases of rape, killing and other sorts ofviolence on women without closely scrutinising as to whetherthere is any dependable, sufficient, cogent and convincingevidence to record the ultimate order of conviction and sendingthe accused to jail to suffer the maximum punishment. At thesametime, while appreciating the evidence of the prosecutrix,we are also equally not supposed to scrutinise her evidencewith a microscopic exactitude finding errors of dotting the "i"and crossing the 't' ie., some trivial inconsistencies, hairsplitting here or there not cutting at the root of theprosecution case. We can not also permit ourselves to beoblivious to the hard fact of life that ordinarily no girl, andfor that purpose not even her parents with whatever littlesense she/they have would ever dare to falsely allege a rapehaving been committed on her !! The reason is by making suchwild accusation against any person (which prima facie indeedquite easy to make) before the said accused person is actuallytried and punished to suffer imprisonment which is indeed amatter for future and as uncertain for one does not know whatway it would ultimately turn depending upon the credibility ofthe overall prosecution evidence may command, but the factremains that by filing complaint of rape against the concernperson she atones of her own unquestionably put herself in dockinviting all ugly gazes of the society towards her exposingherself to the whole world as a pitiable character, with brokenseal, virginity sullied if she is unmarried and virgin and ifmarried over and above the same to stay rest of her life withthe husband and family members in the most embarrassed,depressed, self-pitied, humiliated way with her eyes alwaysdown cast floor-struck ! This by itself in a sense and wayself invited, inflicted punishment perhaps worst than suicide,sadly affecting future, in the first instance, the marriageprospects if the victim girl is unmarried and in the secondinstance, rest of the married life if the victim woman ismarried one !! To allege and by filing complaint for rape, thewhole episode would flood light exposing her to the society ather own hands, cost with an eye of pity that here is a poorgirl/woman raped ! Accordingly, before alleging / accusing /admitting any person of having committed rape on her, she isindeed in such a breath-taking traumatic mental condition,difficult to imagine even for the male-world, and therefore, itis not that easy to so allege that somebody has committed rapeon her ! This is the ordinary way of looking at the things,under ordinary circumstances, and ordinarily the same is foundto be quite true. But this is not the only yardstick in allthe cases for all the times to come in the criminal trial toappreciate the evidence of victim girl irrespective of other

attending facts and circumstances of the case !! The mostobvious and the first distinguishing reason is that till thetime ultimately the court scrutinizes the evidence, reaches adefinite conclusion beyond any manner of doubt that the accusedis guilty, the accused is also presumed to be innocent. Sowhen the trial commences, before the Court, there are twosimultaneous balancing pictures, first one that no girl wouldordinarily falsely accuse any person of the rape, and secondly,the accused is presumed to be innocent till proved guilty.Precisely, it is from this stand point, base that justicemontaineering, justice expedition begins and we have to climbup and reach the pinnacle of justice unruffled by stormyweather ! Further the gravest the charge and equally stringentthe punishment provided for it, it is the foremost guarded dutyof the Court to see that in undue hurry, haste or sometimeseven inadvertently swayed by class, caste prejudices, it doesnot reach the wrong conclusion on the basis of some street,press-trials which certainly in some given cases may not bethat false, without the grain of truth, but at the sametime ina given case the same as well can also be, may be false,doubtful and we indeed do not know whether the case we aretrying is one such case where appearance given to it may nothave any substance precisely because based on engineered rumour! With a view to see that some concerned trial Judge in agiven case may not fall prey to the irresistible fear that ifit decided the case in favour of the accused against theoverwhelming public opinion, how indeed he would be viewed andcharacterized, in the eye of people, he is required to be madeof the sterner stuff !! What we mean is with all dust and dinraised by the prosecution, accused, street and press-trialsalround the trial court has to be ultimately true to its ownconscience, hear its dispassionate voice and deliver thejustice as per its dictates without fear of brick-bats andgreed for boquet !! The consideration neither of cheaprecognition and appreciation of judgment nor its condemnationshould be given any weightage when the Court is called upon todo justice !! While discharging the call of duty, judge has totranscend the consideration of greed of boquet and fear ofbrick bats, faithfully keeping in mind the only concern forjustice !! Court always appreciates the value of publicopinion and press trials, in fact it should be thankful to itin a given case for championing, crusading the cause of publicjustice but this awe and reverence of the public opinion andpress-trial has to be respected within the permissible boundsonly, may be it is sometimes based on some interested baselessrumours !! Every court when called upon to appreciate theevidence of complainant can never afford to be oblivious to thebasic human make ups where even endowed with the best the ofvirtues, still some persons, in their unguarded weak moments oflife sometimes are not that free of their frailties wherehe/she is still not that fully rational where ulterior motives

in him/her occasionally peeping out over powers their virtuesand make them act quite sadly and madly as wild animalspouncing upon the innocents making even palpably falseaccusations against them !! This natural, changing phenomenon,behavioural pattern of human being was continues to be as itwas and what ought we not know may further continue even infuture till the time of course the improved quality of humanrace descends on earth to bless us !! It is indeed toodifficult to fathom the minds and the inner-most recesses ofthe heart of a person as to why he/she is out to falselyimplicate or support wild, baseless allegations against anybody!! It is anybody's guess sometimes right sometimes wrong. Avictim or a witness may be right or wrong, but that shall haveto be ultimately judged and decided on the basis of theintrinsic credibility of his/her evidence before the Court !!The reason is one cannot rule out the possibility these dayswhere any sort of allegation can be flunged against any personat any point of time putting the ball in the cot of the courttaxing, testing its wisdom, pragmatism to do justice. Undersuch circumstances, if by chance the court fails or is swept bythe ordinary approach, it is very likely that in a given caseit may become the instrument of miscarriage of justice.Accordingly, it is here that the court has to become quiteconscious ! It is here that the court has got to be extraalert !! It is further here that the court should always be onconstant unwinking guard with a view to see that its craving,passion, zeal and zest for justice to weak and down-trodden atany time to curb the social evil, that its over zealousenthusiasm does not cross the limits and become handyinstrument in the hands of character assasin and ultimatelyturn out to be injustice !! For this, it is here that thescales of justice, in order, it is not disturbed slightly evenby the wafting breezes, like fast moving fan distrubing thegolden-scale, the court also like a goldsmith always andinvariably must put its golden scale of justice in tightly safeand secured place where it is not tilted or lose the balance bywafting thoughts, cross-breezes of over-enthusiasm passingacross the mind while deciding the case !!

9. With the aforesaid background, we now proceed toappreciate the evidence of PW-4 Manjulaben and thereby theultimate turn out of the fate of appellant in the instant case.According to PW-4, in her examination-in-chief at para-1, shehas asserted that she knew all accused persons, who werepresent in the court room. At the sametime, inexamination-in-chief itself quite strangely adds for the firsttime that she also knew accused No. 3 Nathubhai as Mathurbhai!! In para-23 of cross-examination she has clearly admittedthat she was knowing accused No. 3 Mathurbhai from the date ofthe incident only and before that she was not knowing him notonly that but she had not even talked with him !! According to

PW-4, on the aforesaid date, time and place, when she wassitting on Otta of Chakudia Mahadev, Natu and Dilip originalaccused Nos. 3 & 4 respectively came to her and told her thatsince they want to wash the clothes, accompany them to fetchwater. Accordingly, she alongwith the said accused personswent to the office, where she was taken to the first floor.There both the said accused persons placed two buckets andthereafter stepped down closing the shutter. At that time,Mohanbhai Marvadi (present appellant) was sleeping in theoffice. Thereafter, Natu opening the shutter entered in andwhile gagging her mouth, tide her hands and feet with rope.Thereafter, she was made to lie down on the table and inprocess her bangles were broken, and after lifting her clothes,the accused No. 1 mounted over her. After he came down, thatwas accused No. 2 who fell over her and he also did the samething. While Natu was doing this, the accused No. 1 wassitting nearby. Thereafter, both the accused persons whileleaving, threatened PW-4 saying that if she ventured to reportto the police, she will be beaten more. Thereafter the accusedNos. 1 and 2 went out of the said premises. During therelevant period, the accused Nos. 3 and 4 were sitting outsideon the Otta. PW-4 also thereafter came out and on her way backcalled one SRP constable who was sitting near Chakudia Mahadev.The said SRP constable PW-3 asked her to go to the PoliceChowky. Thereafter, she went to Rakhial Police Chowky and gavea complaint (Exh-52), which came to be recorded, as statedabove in para-2 of this judgment. It is further the case ofPW-4 that she has studied upto Std. X and she knew how to putsignature in Gujarati. Lilaben is wife of the accused No. 2.After the police recorded the complaint, she was taken inpolice car to the house of the accused No. 2, where all thefour accused persons were present who were arrested and takento the police station. Thereafter, PW-4 was taken to thehospital where she came to be examined by PW-1 Dr. Mankadia.Thereafter, she was taken to the scene of the incident wherethe police collected the broken pieces of the bangles underPanchnama. Incidentally, it may be stated here that thepanchas have not supported the prosecutrix on this count !!According to PW-4, after the alleged incident, for sometime,she had stayed with her father and thereafter she was stayingwith one Champak with whom she was to marry. This witness incross-examination has admitted that she was married with oneRamesh Kanji five years before the alleged incident inquestion, but she had not gone to her in-law's house as hermother-in-law was not prepared to keep her alongwith her. Shehas also admitted that there was no love lost between herselfand her husband. She has also admitted that since herrelations with her husband were strained, she had made acomplaint before 'Jyotisang' which had directed her to go toher in-law's house, but her in-laws were not prepared to accepther, as a result, she was alone. She has also admitted in

para-20 of the cross-examination that she was daily going toChakudia Mahadev for taking meals and there she came in contactwith one Champak who was preparing 'chapatis'. She has alsoadmitted that she was daily going to see Champak. She has alsoadmitted that she and Champak were daily talking together alonein the lonely place behind the office of Dhaval Estate. Shehas also admitted that accused No. 2 was serving as a Watchmanin Dhaval Estate. She has also admitted that because she andChampak were meeting near Dhaval Estate, the accused No. 2 wasasking her not to come there. She has also admitted thatbecause of this, she had strained relations with accused No.2. She has also admitted that just near behind ChakudiaMahadev, number of persons come and go and that particularplace is just behind Chakudia Mahadev. She has denied theallegation that she has filed a false complaint against accusednos. 1,2,3 and 4 with a view to take compensation from theGovernment. She has further admitted that no marriage hastaken place with Champak. She has admitted in para-23 that shewas knowing accused No. 3 as Mathurbhai from the date of theincident. Before that, she was not knowing him by that name.She has also admitted that before the incident she was notknowing Mathurbhai. On the date of the incident, when accusedNos. 3 and 4 came to call her, she was all alone there. Shehas also admitted that before the alleged incident, accusedNos. 3 and 4 had never called her for fetching the water. Shehas also admitted that after the shutter of the office wasclosed, she was there inside for five minutes. She has alsoindeed surprisingly admitted that her father was very greedy bythe nature in the matter of money. She has also admitted thatat present she was staying with Champak in his house since lastsix months. She has also admitted that for making suchcomplaint, Rs. 10,000/= are given to her. She has alsoadmitted that to take that money, her father was pressuringher. However, she has stated that she has not received thesaid money. Finally, she has denied the allegation that shehas filed a false complaint at the instance of her father onlywith a view to claim compensation of Rs. 10,000/-.

9.1 That takes us now to the evidence of PW-1 Dr. R.JMankadia. According to him, PW-4 Manjula was brought to him on18-7-1994 at 4-00 a.m with police yadi. After examining her,he issued a medical certificate which is produced at Exh. 14.On perusing the said medical certificate, it is indeed clearthat there are no signs of either sexual intercourse or anyexternal marks of violence during the course of the allegedintercourse. At this stage, we would like to clarify that fromthis medical evidence, we do not say for a moment even that forwant of the medical evidence her evidence suffers and nocredibility can be attached. The reason is there are cases andcases where medical evidence may not be supporting, notimmediately available and for very many other reasons !!

Conclusion

Accordingly merely because medical evidence is not foundsupporting that by itself in a given case may not be sufficientto throw away the entire testimony of the prosecutrix overboardoutright. Ultimately, if the prosecutrix is found to bedependable and of sterling quality, then even in absence of themedical evidence, in a given case, the Court can convict theaccused. The reason is that medical evidence is ultimatelymerely a corroborative piece of evidence. It is altogether adifferent thing that by way of ordinary prudence the Court mayinsist upon the medical evidence to convict the accused butthen there is no law or hard and fast rule that in order torecord the order of conviction and sentence, the medicalevidence is necessarily and invariably must and first, and itmust further invariably corroborate the say of the victim girland then and then only the evidence of victim girl could beaccepted !! In fact, as stated above, the only and the basictest for the court is to find out whether the victim girl iswholly dependable. If it satisfies the conscience of the Courtthat she is 100% dependable then the accused can be convictedeven in absence of medical evidence. Ultimately, it is for theconcerned court to find out whether its judicial conscienceneeds some corroboration. After going through the evidence ofvictim girl, if its conscience feels little thirsty about thecorroboration, then it need not record the order of convictionon bare testimony unless it finds some such corroborationforthcoming. But at the sametime if it feels absolutely clear,safe, not risking the fate of innocent accused reconciled tothe jail then in that case it can certainly record the order ofconviction and sentence even without corroboration. In thisview of the matter, we make it clear that merely because PW-4is not corroborated by the medical evidence on the record, weare not inclined to reject her evidence on that ground alone,but at the sametime at this stage, recalling the argument oflearned defence advocate Mr. Shah and examining the same inthe light of overall doubtful evidence of PW-4, we feel thatshe refused herself to get examined by gynacologist assuggested and referred by PW-1 Dr. Mankadia, in allprobability because her allegation of rape, much apartgang-rape would in that case would stand stripped nacked andself exposed as false !

9.2 In sequence of events, next stands the evidence of PW-3SRP constable Gabdulal Ramdayal Sagval. According to thiswitness, on 17-7-1994 at about 6.00 p.m. one girl came to himwhen he was on duty near the temple and inquired of him as towhere was the police station, and when countered what work shehad, she stated that she has been raped and she wanted to go tothe police station for filing the complaint. This constablealso inquired from her whether he may accompany with her to thepolice station to which the girl refused !! Thereafter, hisstatement was recorded on 19-7-1994 that is to say two days

after the alleged incident. In cross-examination he franklyadmitted not knowing the place where the alleged incident ofrape had taken place ! He also admits that he did not inquireof the girl about her name !! He also admits that he had notinquired even as to the person who had committed rape on her !!The evidence of this witness, more particularly when he is apolice personnel prima facie sounds quite unnatural and appearsto be got up one, engineered only with a view to supply thetheoretical corroboration to PW-4. Else how indeed a person noless than constable on duty near temple would fail to know hername, time, place, person alleged to have committed rape on her!! We are saying so from patently improbable conduct of theSRP constable who was aged 45. If a victim of the rape makes agrievance before the constable and inquires about as to whereis the police station, it is indeed difficult to conceive thathe will not inquire as to at what place the rape was committed,what was the name of the girl and who were persons who hadcommitted rape, etc. etc. Either the said constable wastotally dunce not knowing what was his duty or the incident hadnot taken place at all. In this view of the matter, thiswitness has not impressed us at all as a dependable witnessworthy of placing implicit reliance rendering corroboration tothe evidence of PW-4 to sound it genuine regarding herallegations against accused persons. Of course, we do comeacross some cases where police trying to give extra-gloss tomake the prosecution story appear real and acceptable, many atimes bonafide concocts case to help the prosecution. May be,may not be. However, this being a case of gang-rape, weapplying the above caution to ourselves would not like tostraighway throw away case of the prosecutrix merely because ofpolice overzealously overdoing something !! Accordingly, wesimply say that PW-3 do not appear to be dependable and not theconclusion that because his evidence is concocted that in turnclouds even the testimony of PW-4.

9.3 That takes us to another witness viz., MotibhaiRatnabhai PW-2, who happens to be the father of PW-4 Manjula.This witness while identifying the accused No. 1 in thewitness box has wrongly identified accused No. 2 as accusedNo. 1 !! The learned trial Judge recording the evidence hasalso placed demeanour note observing that - "The witness aftergoing near the accused persons, identifies accused No. 2 asMohanbhai (Appellant herein) and that accused No. 3 asbrother-in-law. He identifies accused No. 4 Dilip as hisbrother of accused No. 1 Mohanbhai". In para-5 of hisexamination-in-chief he has stated that the brother ofMohanbhai had given a threat that your daughter has made afalse allegation against his brother, and therefore, get himreleased. This witness in para-8 has admitted that at presenthis daughter PW-4 Manjula was staying with one Sampat Babulalsince last two months. He has also further admitted that he

does not know the whereabouts of Sampat !! He has furthervolunteered in para-12 that his financial condition was weak.He has also admitted that he was fed-up and tired with theconduct of his daughter PW-4 Manjula. This witness hasadmittedly wrongly identified accused No. 2 as accused No. 1and 3 !! Not only that but has admitted that his daughter hasmade a false allegation against one of the accused, andtherefore, get him released. Not only that but instead ofChampak this witness has deposed in para-8 of the crossexamination that his daughter was staying with Sampat Ambalalsince last about 6 months and he was not knowing about hisaddress. Now when a witness before the Court commits anunpardonable mistake in falsely identifying the accused, thatcertainly creates serious doubt about his evidentiary value.Not only he but even PW-4 has also committed mistake regardingthe identity of one accused. Under such circumstances, when aperson comes out with the gravest type of allegation of thegang-rape, precisely naming the accused and thereafter whileidentifying before the Court some fatal unexcusable mistake iscommitted, it will not be merely dangerous to base the order ofconviction and sentence thereupon, but it would be simply blindand unbecoming for the Court to overlook such a glaringtelltale circumstances on the record. Under such circumstanceswhat is the guarantee of truth that here the witness is honest,truthful and was not falsely implicating innocent persons !!Now this is not merely a matter of doubt. Rather it is anaccomplished fact that though the incident has taken place in abroad day light and the accused persons were previously known,and still before the Court, the witnesses fail to identify theaccused No. 1 & 3 !! At this stage, we may indeed clarifythat merely because for whatever reason PW-4 Manjula did notcarry well with her in-law's house for five years, and she wasleft to run from man to man and place to place, we do nothasten to the conclusion that she was a woman of easy virtue,and therefore, her evidence should not be accepted !!Supposing she was ultimately found to be a lady with easyvirtue then even such lady with easy virtue, if sexualintercourse is committed against her will and desire, and herevidence is found to be reliable enough then the accused cancertainly be convicted on charge of the rape. The point is notthat but the real point is not properly identifying theappellant, when accused was known to her, and the accused No.3 whom she came to know only from the date of the incident andstill before the Court she identified him as Mathur and in FIRgave his name as such. Here when a person was not knownpreviously from where did she get his name and identified himas an accused person !! Under such proved mistaken identityand doubtful circumstances, how indeed the Court can put faithin evidence of such a witness. Merely because a woman iscoming from the Scheduled Caste, therefore, her evidence is tobe accepted as a gospel truth !! Of course undoubtedly when a

person from the Scheduled castes / Scheduled Tribes come beforethe Court, their case is required to be considered with specialcare and quite sympathetically and in case if ultimately theoffence is proved, the Court, but for the specialcircumstances, should not spare the accused and indeed mustcome down quite heavily upon him and must impose severestexemplary sentence depending upon the facts and circumstancesof that particular case !! That is entirely and altogetherquite a different thing. But merely because a witness is ofScheduled Caste / Scheduled Tribe community and thereforewhatever he/she states before the Court is to be taken as agospel truth and the Court in its turn quite meckly is toproceed on that reserved presumption / assumption, then it willbe nothing lesss and else but abdication of judicial functionand with some such misplaced passions and prejudices the Courtsare to ultimately decide the case that will surely bring aboutnothing less and else but outright/downright miscarriage ofjustice !! Not only that but PW-4 has not only falselyidentified one of the accused herein, but her allegation in theFIR (Exh-52) and her evidence before the Court is quite atvariance. In FIR she states that the accused No. 1 committeda sexual intercourse and Natubhai outraged her modesty, whilegiving evidence before the Court she alleged that both of themcommitted rape. From her evidence, it can be said that she wascapable enough to know underlying difference between the rapeand outrage of modesty. There is a reason for this because shehas stated in her FIR Exh.52 that the accused No. 1 hadcommitted sexual intercourse with her and the accused No. 2had outraged her modesty. Now under the circumstances, howindeed to accept her evidence, when she on oath before theCourt deposed that both accused No. 1 & 2 committed rape onher !! This was not the case even in FIR Exh. 52 !! Beforethe Court she stated that her hands were tied, if we look ather police version in FIR Exh-52, there is not even a wordabout it !! Now if at the time of alleged gang rape if handsand feet of PW-4 were not tied, then naturally she would haveresisted with all her might the forcible intercourse and in theprocess she was bound to receive some injuries ! This as permedical evidence was not there. This is perhaps the reasonwhy, while giving evidence before the court she was made toimprove her original story by providing extra gloss that whilecommitting gang rape original accused No. 1 and 2 her handsand feet were tied and was made to lie on the table !! Nowquite interestingly the investigating agency which collectedpieces of broken bangels and earring from the alleged scene ofoffences has failed to attach the string or rope in questionwith which she was tied !! This circumstance of not attachingstring or rope used in commission of the offence by itself in agiven case may not be given that importance making the entireprosecution case doubtful but at the sametime if the police cancalled pices of broken bangles, and errings from the scene of

offence, one would certainly expect it to also attach and seizethe string or rope in question !! This is not done whichsquarely gives and additional exposure to the prosecution caseas coocked up one !! Further still, in FIR Exh-52 according toPW-4, accused No. 1 & 2 opened the shutter, came in the roomand committed alleged offence. While giving deposition beforethe Court, she in clear terms have stated that accused No. 1was already sleeping inside the room before he committed thealleged offence of rape !! Are we still to believe her ?Further, in FIR there is no story of breaking of bangles, andyet if we see her evidence before the Court, where she hasstated that her bangles were broken. The panchas have notsupported the said story. Merely from the production packet ofbangles by the Investigating agency are we to acceptprosecution story given out for the first time before the Courtthough undoubtedly in a given case the evidence of theInvestigating officer if found of sterling quality that couldbe accepted and relied upon ??!! If the Court is to condoneevery improvement, inconsistency, material omissions,contradiction and improbabilities at every stage merely becausea witness comes from SC/ST community and/or the stoke argumentthat a witness is a rustic villager and therefore accept thestory as gospel truth then in that case, it has indeed all thepotentialities to place the court on the wrong track ofappreciation of evidence, which can never take us to thecorrect distination of justice !! Then in that case, there isno need for the Court. Let the police record the complaint andstatements of other witnesses and on the basis of the samealone, final order of conviction and sentence be passed !!There is no need for Administration of Justice !! It is notthat we are discarding evidence of PW-4 because she is comingfrom the downtrodden class, but at the same time when weclosely scrutinise her evidence and the testimony is ultimatelyfound to be totally wanting, unworthy of credit then under suchdebased circumstances, to accept her evidence would be patentinjustice. May be to some extent PW-4 is perhaps right whenthe appellant and his associates might have at the mostoutraged her modesty and/or taken some undue liberty with her!! That may be. That may not be. But under such doubtfulcircumstances the Court cannot accept the case of gang-rape,when that was not her case even at the earliest in complaintagainst the accused No. 2 !! On careful and close scrutiny ofPW-4, it appears that her evidence has not only no depth but isso sandy, and shacky that no amount of labour can sustain thesuper-structure of conviction and sentence against the accused,recorded by the trial Court on slippary foundation of the case!! In view of this discussion to accept the allegations ofgang rape, even of rape at its face value, which are found tobe quite inconsistent and doubtful would be nothing butviolence on the common sense.

9.4 Further, it appears from the record that at the time ofthe trial, PW-4 was not available for recording her evidencebefore the Court !! Even her father was not knowing herwhereabouts so much so that the Court was ultimatelyconstrained to release Accused Nos. 3 & 4 on bail in the sameof Rs. 10,000/= and further as the misfortunate would havebeen, since these poor accused persons could not furnish thebail, the learned Judge cancelled the bail. This circumstanceof not only PW-4 not traceable and readily available for givingevidence before the court but even her father not knowing herwhereabouts is indeed quite enough to some extent impair hercredibility but then even the same standing by itself, may nottotally weaken her credibility, but at the sametime when thesame is examined in light of other continuous consistentinfirmities in her evidence it certainly adds to the long listof infirmities exposing her as unworthy of credit reliableenough to base order of conviction and sentence !!

10. In view of the aforesaid discussion, we make it clearthat we are not throwing away her evidence from being takeninto consideration merely on the ground of (i) PW-1 medicalevidence, not corroborating, (ii) PW-2 her father, and (iii)PW-3 SRP constable not corroborating PW-4 Manjula. Rather, weare not accepting the prosecution case because PW-4 herself isfound to be utterly undependable. Had indeed PW-4 satisfied usas witness dependable enough of the sterling quality we despiteother corroborative piece of evidence not satisfactorilysupporting her would have still accepted her evidence andconfirmed order of conviction and sentence against accused.

11. This takes us yet to another limb of the argument ofthe learned advocate for the appellant-accused when hevehemently submitted that the false case has been raked up byPW-4 against innocent accused persons probably and indisputablyunder the compulsion of poverty with rough and ready motivationof earning wind-fall exgratia compensation of Rs. 10,000/=from the State Government !! To clarify this aspect as towhether PW-4 is paid the said compensation we had requested thelearned APP to inquire and enlighten us by filing the affidavitof the competent authority. Accordingly Shri P.M Chavda,District Backward Class Welfare Officer, Ahmedabad has filed anAffidavit in Reply, wherein he has frankly stated that tilltoday no amount is paid. We accept the said statement on oathby the responsible officer. We are also informed at the Barthat of late the State Government has enhanced the amount ofcompensation from Rs. 10,000/= to Rs. 50,000/=. Well andgood !! In this regard, we are firmly of the opinion thatwhenever any offence is committed against any members of theSC/ST community, the government and Court must take thestrictest possible view of the matter. We are also of the

opinion that this suppressed, demoralized section of theSociety which had struggled and indeed are struggling hardunder the most cursed situation created by some the irrational,stupid section of the society from generations requireimmediate attention at the hands of the enlightened members ofthe public and Government. Their cases should be and must besympathetically considered and accordingly be adequatelycompensated more than perhaps what amount the Government hasdecided, and on that point we have indeed no issue either withthe members of the said community or the Government. It istheir privilege to get the compensation, and it is equally thesacrosanct duty of the Government to pay the same. Thisexgratia compensation in rape cases can also be extended toequally poor persons from other communities !! But at thesametime, while doing justice to the persons belonging to SC/STcommunity, we believe that a special care is also required tobe taken that while awarding exgratia compensation which comesfrom the public exchequer, undoubtedly filled up by the honesttaxpayers money, those money are not squandered away on merebald and false allegations !! We say so because these days itis very easy to allege anything and everything against anyperson at any time involving him in any of the offence, andwhen such cases are tried in the Court sometimes persons aregiven benefit of doubt, then in that case, compensation can beconsidered. But in a given case where the witness is found tobe totally undependable, like the one in the instant case andthe accused is found to be falsely implicated, whether onewould still be justified in awarding the compensation and thattoo such huge astronomical amount is a matter which requiresimmediate consideration ?? The reason, the test of prudent manof course says NO. Because idealistic zeal, crusade cannot bepermitted to champion the otherwise sometimes fraudulent claimsto overburden the honest tax payers money. It is indeed theduty of the Government to take maximum possible best care ofthe SC/ST persons. But at the sametime, it is also equally theduty of the Government to see that the honest pie is just notsquandered away, and accordingly, the Government shall have todevice a way/procedure with a view to see that well meantamount of ex gratia compensation is not just whisked away bysome greedy, unscrupulous, scheming and mischievous people, whomay extract huge amount on bald/false allegations duping theGovernment trapping it into the misplaced sympathy with otheranti-social thrid agencies intermeddling devouring sizeableshare of the compensated allowance !! This possibility in ourSociety cannot be ruled out. So the Government whilenecessarily protecting the interest of the SC/ST community,should also try to protect the overall interest of the publicrevenue that is to say, take care to protect the contributionof the honest tax payers and should not readily be agreeable toany and every allegation which may ultimately be proved to bebald, false, etc. etc. We hope that Government will take due

care firstly of the persons belonging to SC/ST community, andsecondly, of the supreme public interest involved viz., publicrevenue also !! In substance, the concern of this Court isthat in a given case on the basis of the totally false,frivolous and vexatious allegation, if the so-called victims ofrape, assault, etc., are readily compensated, and if theyultimately are found to be so by the Court then not only theauthorities empowered to grant such ex-gratia claims standbe-fooled and demoralized but the same may as well furtherunnecessarily bring about bad name to entire SC/ST class as awhole (for no fault of them) for folly of an unworthyindividual ultimately raising the question mark against thereasonablenes and justification of such ex gratia compensationpolicy !! With a view to see that some such dishonest memberof SC/ST community do not bring bad name to their entirecommunity, and thereby prejudice and damage the interest ofgenuine victim of offences, the authorities concerned must beextra careful in readily awarding the exgratia compensation !!May be that at present on some routinal inquiry, the claim ofthe victims of SC/ST are granted, but such peripherial,slip-shod, mechanical preliminary inquiries when ultimately arefound to be false, it will hit the very laudable object firstlyof immediate ex-gratia benefit to the down-trodden SC/STpeople, which in turn secondly, result into undermining thepublic revenue ie., public exchequer filled up with the taxesfrom the honest tax-payers. Not only that but we are furtherquite afraid that to readily grant ex-gratia compensation in agiven case may even in a way tempt any person with ordinaryhuman failing and weaknesses to which even SC/ST class cannotclaim exception, to level false, baseless allegations, file acriminal complaint, collect ex-gratia compensation and thenmake good their escape, irrespective of clean acquittal !!This in a way may also tempt and encourage in filing the falsecomplaints which in turn instead of narrowing difference andclosing rank between the two classes, may widen the same !!This is a very dangerous spot which requires to be immediatelyattended with !! Be it a member of the high class society orSC/ST class, ordinarily the greed once if it takes possessionof the person can prod him to go to any extent any lengthincluding making false allegation and filing false complaintfor the sake of money !! This is simply dangerous, as such apolicy instead of encouraging clossing the difference, classprejudices may if not further widen at least would come in away to start new and happy chapter of mutual love and respectbetween the cross-sections of the Society. With a view to seethat such ex-gratia compensation does not falsely motivate theconcerned person to make false accusations, some workable checkis required to be devised and exercised to stand the overalltest of reasonableness with the help of the leaders of SC andST communities !! To suggest one such way would be toinitially award 1/10th of total exgratia compensation as immediate relief and rest of the amount be put in anynationalized Bank for two to three years and the quarterlyinterest accrued thereupon can be given to the victim till thecase is favourably decided in his/her favour !! Of course herealso ultimate care should be taken to see that some schemingperson do not dupe government ! A special care must be takensetting out reason before awarding interim ex gratiacompensation.

12. Incidentally, it may also be stated as it appears fromthe record that except the present appellant, who is originalaccused No. 1, none of the other three accused persons havefiled any appeal !! We do not know why and under whatcircumstances they have not filed appeals challenging theimpugned order of conviction and sentence. But at the sametime, when we have come to a definite conclusion that theevidence of PW-4 is outright unworthy of credit, it would besimply illegal and unjust to detain further those accusedpersons also who have not appealed before us !! Once ourconscience is satisfied that on such trecherous prosecutionevidence no order of conviction and sentence can ever berecorded, sustained, then the benefit of that necessarily mustalso go to those persons who stood convicted and sentenced onthe very same evidence but have not unfortunately come beforethis Court. Merely because they have not appealed before us,it cannot be assumed that prosecution case was true andtherefore they have not come. This can never be done. We donot know why the rest of the convict prisoners have notchallenged their conviction before us !! There can and may bevery many reasons for not filing appeal against their orders ofconviction and sentence. It may be because of utterfrustration that losing all hopes they have not filed appeal.May be because rightly or wrongly imagining that by filingappeal the Court may perhaps enhance the sentence to theirprejudice though they are innocent !! May be also wronglyadvised that looking to the allegation of rape, gang-rape andthat too on the members of scheduled caste and schedule tribe,these days there were no chances of acquittal !! Be the caseit may as it is, we are not concerned with the same. The Courtdecides the matter on the basis of actual evidence on recordand not on some such views or conduct of the accused personsnot filing the appeal. In this view of the matter, justicewarrants that once Appellant gets acquitted, on the basis ofthe doubtful nature of PW-4 Manjuila, the rest of the threeaccused, whose case and ultimate fate is also based on the verysame set of evidence must as of legal imperative obliges us tobestow benefit of acquittal on them.

13. In the result, this appeal succeeds and is allowed.The impugned judgment and order of conviction and sentence ishereby quashed and set-aside. The appellant herein viz., Mohanlal Amraji Marvadi and other co-accused persons viz.,Natubhai Gulabbhai Gadhvi; Nathubhai Karandan Gadhvi andDilipdan Gulabsinh Gadhvi are also ordered to be set at libertyforthwith unless their presence in jail is required inconnection with any other proceedings pending against them.Fine if paid, to be refunded.

12. Registry is directed to forward a copy of this judgmentto (i) Chief Secretary, Government of Gujarat, (ii) Secretary,Finance and (iii) Legal Secretary, Gandhinagar by invitingtheir specific attention to para-2 where facts of theprosecution case is stated and thereafter to para-9 whereobservations /suggestions made in the overall public interestfor information and necessary action by Government.***

Prakash*