CR.A/1220/2005 of VITTHALBHAI GOKULBHAI RATHOD Vs THE STATE OF GUJARAT on 26 December 2008

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE A.L.DAVE)

1. The present appeal arises out of a judgment and order rendered by Sessions Court, Bharuch in Sessions Case No.18 of 2005 on 12.05.2005 convicting the appellant for the offence of rape and sentencing him to undergo R.I for 10 years and to pay fine of Rs.5000/- and in default of payment of fine, to undergo S.I for one year.

2. The facts of the present case in brief are that the prosecutrix was a lady of about 27 years of age and was deaf & dumb and mentally retarded. She was however, addicted to smoking bidi. On 6.11.2004, at around 11 a.m., it is alleged that the appellant offered her a bidi and then tried to catch her hand. She however escaped from him. Thereafter, the appellant again offered her a match-box and under that pretext, took her to the courtyard behind the house of Balubhai Gokulbhai Rathod and committed rape on her. Around that time, the appellant and the prosecutrix had gone out, but, the incident was seen by witnesses Hanifaben, Jetunben and Shantaben. One Ranjit also saw the incident. Ranjit was sent to the place of incident to rescue the prosecutrix, but, he was driven away by the accused. The prosecutrix was then tactfully rescued by being informed by a shout that her parents have arrived. Later on the parents of the prosecutrix were informed, who in-turn lodged the FIR with Amod Police Station. The offence was registered and investigated and chargesheet filed in the Court of JMFC, Amod. JMFC, Amod committed the case to the Court of Sessions and Sessions Case No.18 of 2005 came to be registered. The charge was framed at Exh.4. The accused pleaded not guilty of the charge and claimed to be tried. The Sessions Court on considering the evidence, found the accused to be guilty of the charge and recorded his conviction as stated above.

3. We have heard learned advocate Ms.Rekha Kapadia and learned APP Mr.Bhatt. Ms.Kapadia submitted that the evidence is not reliable and consistent. The FSL report is not reliable for the reason that there is no evidence to show that the vaginal swab of the prosecutrix taken by the Doctor was sent to FSL, still there is a report from the FSL as well as the Serologist. Ms.Kapadia submitted further that the conduct of the eye-witnesses make their depositions unreliable, and therefore, the evidence cannot be said to be fool proof or totally reliable. The appeal may, therefore, be allowed.

4. Learned APP Mr.Bhatt has opposed the appeal. According to him there are three independent eye-witnesses to the incident, and their version gets support from the FSL report. He submitted that some discrepancy, even if found, has to be ignored, if the evidence in the whole is found otherwise reliable. He also submitted that the prosecutrix is a lady with unsound mind, aged about 27 years and she has been made victim of the appellant's lust, who has taken undue advantage of her mental condition and has committed a rape on her. Her willingness or consent, unless expressly indicated, could not have been presumed. The trial Court was therefore, justified in recording conviction. The appeal, may therefore be dismissed.

5. We have taken into consideration rival side contentions. On examination of evidence of eye-witnesses Jetunben, Exh.14, Hanifaben, Exh.15 and Ranjit, Exh.16, we find that their depositions are consistent and lend credence or support to each other. They all say that the accused offered a bidi to the prosecutrix, which she accepted. At that time, the accused tried to catch her hand, but, somehow she escaped. Thereafter, after sometime, the accused offered a matchbox and lured the prosecutrix into going to the open courtyard, behind the house of Bahadurbhai. He removed the Ijar, which was worn by the prosecutrix and committed rape on her. All this was observed by witnesses Jetunben and Hanifaben from a distance and on seeing the accused removing the clothes of the prosecutrix and mount on her, they felt that they should do something and they asked Ranjit to go to the courtyard, wherefrom he was driven out by the accused. Thereafter they decided to raise a shout to the effect that her parents have arrived. The trick succeeded and somehow the prosecutrix came to them immediately. On being asked as to what had happened, she started laughing . Thereafter, they informed the father of the prosecutrix, who in turn lodged the FIR.

6. The prosecutrix was medically examined. The evidence of PW-1 Dr.Ramprakash Gupta and PW-2 Dr.Pareshbhai Sharma would go to indicate that the prosecutrix was not in an oriented state of mind. She was not cooperating in the medical examination. However, her vaginal swab was taken. It also appears that the accused – appellant was also sent for medical examination and sample of his semen was also obtained. The clothes of the prosecutrix as well as the accused were also seized by the police and sent to FSL, besides the samples collected by the Doctor. The report of the FSL is at Exh.36 and Serological report at Exh.37. They go to show that the semen of the accused was of Group-B. Vaginal swab and pant worn by the accused as well as the Ijar worn by the prosecutrix at the time of incident were found to be carrying stains of the semen of the said Group – B.

Undisputedly, the prosecutrix is of unsound mind and unmarried. This would lend corroboration to the version of the eye-witnesses about the accused having had intercourse with the prosecutrix.

7. The prosecutrix was aged 27 years, but was of unsound mind, therefore, she had no orientation as recorded by the Doctor. She was therefore not capable of giving consent for intercourse. In our opinion, the trial Court was justified in holding that it was a case of rape, duly proved against the accused – appellant.

8. Coming to the quantum of sentence, the learned advocate for the appellant was not in a position to point out any mitigating circumstance to reduce the sentence. There are no circumstances indicated showing that the judicial discretion used by the trial Court has been used arbitrarily or that the sentence is shockingly disproportionate to the nature of offence. We notice that the age of the accused is 40 years and enjoyed married status. He has raped a lady of unsound mind. Under the circumstances, the sentence awarded cannot be considered to be too harsh, looking to the nature of offence.

9. In light of above discussion, the appeal must fail on merits and stands dismissed.

(A.L.DAVE, J.)

(J.C.UPADHYAYA, J.)