CR.A/911/1990 of STATE OF GUJARAT Vs MAHMAD @ MUNNO USMANBHAI CHAUHAN on 22 December 1995

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 Judgment ? ����� —

4. 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? ���� —

=================================================================Shri S.R. Divetia, Addl. Public Prosecutor for the appellant.Shri M.J. Budhbhatti, Advocate for the respondent.

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Coram: A.N. Divecha,J. & H.R. Shelat,J.(22-12-1995)

ORAL JUDGMENT: (Per: H.R. Shelat, J.)

The then learned Assistant Sessions Judge at Baroda acquitted the respondent charged with the offences under Section363, 366, 376, 506 Part 2 and Section 201, Indian Penal Code,delivering the judgment on 21st July 1990 in Sessions Case No.206 of 1989 on his file. The appellant-State, being aggrieved by

2. The case of the prosecution, briefly stated, is thatBhikhiben alias Bhagwatiben, the daughter of Ramanbhai Panchalresiding at village Bhoj had gone to Utiya along with Shantabenand Surajben as Arvindbhai, the son of Shanabbai Kalabhai was tomarry. She joined the marriage party. After the Samaiya wasover, the respondent showing the knife frightened her andsucceeded in taking her aside. He then took her to some isolatedplace where he showing the knife intimidated her. Being put tofear of instant death or hurt she succumbed to the ill-will ofthe prurient respondent. She was made to put off her clothes andlie down. The respondent then against her will and desire rapedher, as a result she was defiled. She was asked not to tell anyone about her defloration. She was also in this regardthreatened with dire consequences. Meanwhile owing to rustle therespondent could guess some one was coming. The respondentpouring water on her clothes fled away. She was then taken tothe place of marriage by those who had rushed to the place ofoffence. She informed her friends Shantaben and Surajben andcame back to village Bhoj along with the marriage party. Becauseof minacity she pretended about her drenched clothes but aftergoing back home she narrated her miseries and woes to her mother.She was taken to the Doctor and thereafter a complaint was lodgedin the police station at Padra. The police officer of thatpolice station initiated the investigation. At the conclusionthereof, he filed the chargesheet against the respondent beforethe Court of the Judicial Magistrate (First Class) at Padra. Asthe learned Magistrate was not competent to hear and decide thecase of rape, he committed the case to the Court of Sessions atBaroda. The case then came to be registered as Sessions Case No.206 of 1989. The learned Sessions Judge at Baroda assigned thematter to the then learned Assistant Judge for hearing anddisposal in accordance with law. The learned Judge below thenheard both the parties and framed the charge at Exh. 3. Therespondent pleaded not guilty and claimed to be tried submittingthat he was wrongly involved because of the rivalries of twofactions in the village. The learned Judge at the conclusion ofthe hearing, appreciating the evidence,accepted the case of theprosecution on all other counts but found that the identificationparade was not held as per the requirements of law. With theresult according to him the prosecution had failed to establishthe charge beyond reasonable doubt. He therefore acquitted therespondent of the offences with which he was charged. Beingaggrieved by such judgment and order, the appellant-State haspreferred this appeal.

3. Mr. Divetia, the learned Additional Public Prosecutorrepresenting the appellant submitted that the learned Judgebelieved the case of the prosecution on all other issues, exceptthat of the identification parade, which was the error. The

identification parade held was in consonance with law. Thelearned Judge below ought to have convicted the respondent. Thereasonings of the lower Court were illogical and unconvincing.Mr. Budhbhatti, the learned Advocate representing the respondentsubmitted that the judgment and order of the lower Court were noton the verges of perversity and there was no need to set theevaluation right. In fact, the learned Judge had committed noerror which would warrant the interference of this Court.

4. In law even if with free consent a person subjects thegirl,below 16 years of age to sexual intercourse, the offence ofrape is committed and so consent of such girl will never help thewrongdoer. In this case, Bhikhiben, the victim at the relevanttime was aged about 10 to 11 years. On searching scrutinyignoring certain infirmities even if we agree that some oneobsessed with concupiscence has molested Bhikhiben with orwithout her volition and will and satisfied his carnal desire,the crucial question who did the wrong has not been unravelled.

5. On perusal of the evidence on record, without anyhesitation we agree with the learned Judge below with regard tothe identification parade. Before we deal with the same, we maymention about other points giving a fatal blow to theprosecution's case. The conduct of the victim as well as herparents cannot be overlooked. The victim when she was taken tothe Doctor at Vadu did not disclose how her private part wasinjured; she on the contrary told the Doctor that as a log ofwood estubs struck her, she was injured. Seeing her doleful whenher friends, Shanta and Suraj questioned she replied that shestumbled as her foot came up against some object on the road andfell down into the plash and sustained the injuries and herclothes came to be drenched. She also did not say aboutabrasions or bruises on her back and suppressed the wrong done bythe respondent. Her mother also accordingly stated before theDoctor and did not disclose about the alleged rape. When thecomplaint was lodged, Bhikhiben has also remained silent aboutthe injury on her back; and the fact about a knife having beenshown and the threat given by the respondent. When at theinitial stage,the incident has been suppressed for no good cause,without any independent corroboration, her evidence and that ofher mother cannot be accepted. Ramanbhai Ambalal Panchal, fatherof Bhikhiben, also before the Doctor did not disclose the factabout rape and injury on the back. He also waited for two daysand then filed the complaint. No doubt, he has explained statingthat he wanted to consult Kasambhai, but later on when Kasambhaiwas not available, he took his daughter Bhikhiben to the policestation at Padra and got the complaint lodged. The explanationoffered is certainly insipid. Why he was to be consulted, wasthere any hindrance removable only by Kasambhai, was there anyqualm, are the factors conveniently kept behind the veil. It maybe noted that later on after two days without waiting for Kasambhai he goes to the police station and lodges the complaint.Future prospects of Bhikhiben was not therefore the vexatiousproblem to him. It is pertinent to note that Surajben one of thefriends of Bhikhiben is examined but she has not supported thecase and these witnesses. We are, therefore, not inclined toplace sole reliance on the evidence of these witnesses.

6. We do not find any other supporting evidence on record.

Dr. Ramesh N. Tandon who examined the respondent on 31st May1989 did not find any injury on the private part of therespondent. He also found that there was no semen. It may bestated at this stage that the age of Bhikhiben at the time of theincident, was about 11 years and as submitted by the learnedAddl. Public Prosecutor she was a virgin. The age of therespondent at the relevant time being of 25 years was adult. Ifthe adult rapes a minor girl, what marks or signs the doctorwould note has been made clear by the Supreme Court in the caseof Rahim Beg & Anr. vs. State of U.P.- 1972 Criminal LawJournal, 1260, A.I.R. 1973 S.C. 343. It is observed that ifthe rape is committed by a fully developed man on a girl of 10 to12 years who is virgin and whose hymen is in tact, absence ofinjuries on the male organ of the accused would point to hisinnocence. In view of this decision, in this case when no injuryis found on the organ of the respondent, it is the strongestcircumstance discrediting the truth of the prosecution's case andpointing to the innocence of the respondent. Of course, ourattention was drawn by Mr. Divetia, the learned Addl. PublicProsecutor to the fact that the Doctor found indurated swellingon the private part, but that will not help the prosecution. Insuch cases, as pointed out by the Apex Court in the above saiddecision, some injury would be seen, and not swelling which maybe due to many other reasons. Hence mere swelling seen by theDoctor cannot prompt us to jump to the conclusion against therespondent.

7. Non-examination of Shantaben may not be fatal to theprosecution because as per its case Bhikhiben - the victim didnot tell the truth, but the prosecution cannot escape from theconsequences of non-examination of others who were in a positionto throw light on the proposition. According to Bhikhibenhearing her shouts, four persons rushed to the place of theincident and took her to the marriage marguee where the marriageceremony was going on. Out of those four persons no one isexamined and no reason is assigned for not examining them. Whenindependent evidence is available and the same is suppressed forno good cause, the Court is entitled to infer every thing againstthe prosecution.

8. Much has been emphasized upon the identification parade.Mahesh P. Pandya, the Deputy Mamlatdar and Executive Magistrate,held the identification parade. His evidence is recorded at Exh.

17. Before we discuss about his evidence, we may refer to thedecision of this Court rendered in the case of Motilal GajarbhaiChasisiya vs. State of Gujarat-1988 (1) G.L.H. 264, wherein itis laid down that, while holding the identification parade, careshould be taken to procure the dummies of nearly the same age andphysique of the accused, so that the accused may not be wronglyidentified, and involved with the crime. In this case, we findthe identification parade held was perfunctory and an emptyformality also. Nothing has been mentioned in the I.P.panchnama (Exh.15) of what height the dummies were. The DeputyMamlatdar selected the dummies of the age of 20, 32, 43, 36 and27 years. He did not take care to select the dummies fallingwithin the same age group. The persons having similar physiquewere also not selected. It seems the Executive Magistrate didnot ascertain the description of the respondent so as to selectalmost similar dummies. Description of the persons selected asthe dummies is also not mentioned in the panchnama, but with aview to fill-up the gaps that remained in the panchnama, theDeputy Mamlatdar has made rectifying statement at the time of hisevidence.The panchas selected were the managers of the mid-daymeal scheme. The panch witness (Exh.14) has made it clear thatthey had to obtain the permit from the Mamlatdar's office for themid-day meal scheme. Both the panchas were therefore not abovethe dominating effect of the Executive Magistrate. The panchaswill therefore like to be attuned to the requirements of theprosecution and will never be impartial and bold. The dummiesfrom the village of the respondent were not selected. In view ofsuch circumstances it was easy for Bhikhiben to single out therespondent. The identification parade held therefore cannot betermed veracious and credible, and consistent with the law madeclear in the above referred decision. The learned Judge haselaborately dealt with the point of the identification paradeassigning adequate reasons. We do not find any reason todisagree with him. We, therefore, cannot agree with thesubmission made on behalf of the appellant in this regard.

9. In view of the above discussion and the evidence onrecord, there is no good reason to interfere with the judgmentand order passed by the lower Court; the learned Judge below wasright in acquitting the respondent. The appeal, in view of thematter, is required to be dismissed.

10. While parting, let us mention that we do agree with thelearned Addl. Public Prosecutor that in such cases where safetyof women and girls is endangered, the wrong-doer cannot gounpunished and the Courts must come down heavily upon them; butwe, as the Court of law, cannot, being obsessed with publicsentiments, convict the accused. We have to scan the evidence onrecord and determine whether the prosecution has in accordancewith law established the charge beyond reasonable doubt. In thiscase, for the reasons stated hereinabove, the prosecution has failed to establish the charge and therefore, we have toreluctantly pass the order confirming the lower court's decision.

11. In the result, the appeal is hereby dismissed and thejudgment and order of the lower Court, recording the acquittal ofthe respondent, are maintained. The respondent is in jail. Hebe set at liberty if no longer required in any other matter.���.........

(Per: A.N. Divecha, J.)

“I had the privilege of hearing the judgment dictated bymy learned brother in this case. I fully concur with not onlythe conclusion reached by him but also with the reasoning givenin support thereof. I have however thought it fit to add a fewwords of my own.”

1. It is not necessary to set out in detail the facts givingrise to this appeal. The factual position has succinctly beenset out by my learned brother in his judgment. It would besufficient to note that the respondent herein was charged withthe offences punishable under sections 363, 366, 376, 506 Part 2and sec. 201 of the Indian Penal Code, 1860 (the IPC for brief).The learned trial Judge acquitted the respondent herein of thecharge levelled against him by his judgment and order passed on21st July 1990 in Sessions Case No. 206 of 1989. The presentappeal is directed against the said jugment and order ofacquittal passed by the learned trial Judge.

2. The acquittal of the respondent herein is based mainly onthe ground that his identify as the offender has not beenestablished. So far as the commission of the crime is concerned,the learned trial Judge has accepted the prosecution versionabout it. The evidence on record is a clear pointer to the factthat the victim of the crime was a minor girl and she wassubjected to rape at the relevant time.

3. The medical evidence on record is a clear pointer to thefact of subjecting the prosecutrix to sexual intercourse. Shewas found to be aged around 10 or 11 years at the relevant time.Of course, it is nobody's case that she was a consenting party.Even if it be so, such an act would constitute a statutoryoffence punishable under Section 376 of the Indian Penal Code.

4. The basic question is who subjected her to such sexualintercourse. The learned trial Judge has not found therespondent herein guilty of it. He has given cogent andconvincing reasons therefor. We are in full agreement therewith.We should however like to make our own appreciation of theevidence on record.

5. In her oral testimony at Exh.8 the prosecutrix hasclearly stated that she saw the respondent for the first time onthat day. When the respondent attempted to take her away asideunder some false pretext, according to her, her two friends,named Surajben and Shantaben, accompanied her in the beginning.They are said to have run away at the show of a knife by therespondent. One of them named Surajben has been examined atExh.15 on the record of the case. She has not at all supportedthe prosecution. Besides, the prosecutrix in her evidence atExh.8 has clearly stated that at the relevant time some fourpersons came to her rescue after hearing her shouts. She isstated to have deposed to the effect that they saw the respondentrunning away. It was seen by them. None of those four personshas been examined on behalf of the prosecution at trial.

6. In order to establish the identity of the respondentconnecting him with the offences with which he stood charge attrial, the prosecution undertook the holding of theidentification parade. It was done by the Executive Magistrateat the relevant time. His testimony has been recorded at Exh.17on the record of the case. The outcome of the identificationparade has been reduced to writing and it is at Exh.15 on therecord of the case. The learned trial Judge has minutelyscrutinised the evidence in that regard and highlighted quite afew infirmities found therein. The infirmities galore in theidentification parade would leave no room for doubt that what wasdone was a mere empty formality. The Executive Magistrate haddone his job very casually and in a cavalier and perfunctorymanner.

6. It has clearly been found from the deposition of theExecutive Magistrate at Exh.17 that he had not ascertained thedescription of the accused before holding the identificationparade. Such ascertainment of description before hand shouldenable a holder of the identification parade to selectappropriate dummies falling within the same age group and almosthaving the similar physique. Besides, independent panchwitnesses have also not been sent for. The panch witnesses weremanagers of the mid-day meal plan. The panch witness at Exh.14has clearly stated that they have to obtain permit from theMamlatdar's office for the purpose of the mid-day meal plan. TheExecutive Magistrate at Exh.17 was the Deputy Mamlatdar in theMamlatdar's office. Both the panch witnesses would thereforecertainly be under his influence. In that view of the matter,expected impartiality and objectivity on the part of the panchwitnesses is found wanting in the present case. Moreover, ittranspires from the report of the identification parade at Exh.15that no attempt was made to select dummies for the purpose fromthe same age group. No description of theirs is found recordedtherein. The dummies were selected from different villages.They were not in the same age group. Their ages varied from 20

years to 43 years. The respondent was the resident of that verysmall village. His identification at the identification paradein the midst of dummies from different villages and of differentage group may not really result in his true identification. Hecould easily be singled out from the group of such persons.Again, the description of the dummies is also not recorded in theidentification parade report at Exh.15. It therefore becomesdifficult to know whether or not persons similarly built as thatof the respondent herein were selected as dummies. All theseinfirmities are duly highlighted by the learned trial Judge forthe purpose of discarding the credibility of the identificationparade. On careful scrutiny of the evidence on record, we are inagreement with the learned trial Judge on that score.......