4 Whether This Case Involves A … vs State Of … on 9 September, 2017

R/CR.A/855/2013 JUDGMENT






1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No

2 To be referred to the Reporter or not ? No

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 No
India or any order made thereunder ?

STATE OF GUJARAT….Opponent(s)/Respondent(s)

HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR PV PATADIYA, ADVOCATE for the Appellant(s) No. 1
MR RUTVIJ OZA, APP for the Opponent(s)/Respondent(s) No. 1


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Date : 09/09/2017



This appeal is directed against judgment and
order of learned Additional Sessions Judge, Gondal,
dated 31st January, 2013, whereby the appellant herein
came to be convicted for the offence under Section 376
of the Indian Penal Code, 1860 and sentencing him to
undergo rigorous life imprisonment and further to pay
the find of Rs.25,000/- and in the event of non-
payment of fine, to undergo further imprisonment for
three months. Out of the fine amount, Rs.20,000/- was
ordered to be paid to the victim. He was acquitted of
the offence under
Section 506(2), IPC.

2. The complainant was the victim herself. The
prosecution case revealed as per the complaint
(Exh.17) was that the complainant had been staying
with his aunt and uncle, that her mother had died and
father had gone away somewhere. On 04th December, 2011
at about 10.00 p.m., the aunt of the complainant and
her sister-in-law had gone to relative’s house. The
complainant was alone. At that time, the uncle of the
complainant, appellant – accused, came inside the room
of the complainant, pushed her to the floor and
started removing clothes of the complainant. The
appellant threatened her that if she would not allow
to remove her clothes. It was stated that thereafter
the appellant also removed his pant and committed
crime by overpowering the complainant. It was stated
that by the time the appellant was going back after

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putting on his pant, anut Bhavnaben and sister-in-law
Sangitaben arrived, to whom the victim complainant
narrated the story about sexual act committed by the
appellant. The complainant was taken in 108 ambulance
to the Government Hospital at Gondal.

3. The complaint (Exh.17) was registered at
Gondal Police Station at C.R. No.72 of 2011 for the
offences under
Sections 363, 506(2), IPC. and was
handed over for investigation. The statements of the
witnesses were recorded, inquest panchnama was done,
the victim and the accused were sent for medical
examination. FSL report was received. When the
chargesheet was filed, offences under
Section 376 and
506(2) were mentioned. As the offence was tirable by
the Sessions Court, after submission of chargesheet
before the Court of learned JMFC, Gondal, the same was
committed to the Court of Sessions under
Section 209
of the Cr.P.C.

3.1 In order to prove the case, prosecution
examined 12 witnesses whom included panch witnesses
(Exh.8, 10, 11, 13 and 14). The victim deposed at
Exh.16 and Bhavnaben (PW 7) who was aunt, deposed at
Exh.18. Champaben Laljibhai (PW 8) deposed at Exh.20,
Dr.Bhavesh (PW 9) who first examined the victim
deposed at Exh.21. Similarly, Dr.Chandravali (PW 10),
Medical Officer, Civil Hospital, Amreli, deposed at
Exh.25, Aniruddhsinh S. Jadeja (PW 11) deposed at
Exh.30 whereas investigating officer Ramjibhai
Laljibhai (PW 12) gave his evidence at Exh.35.

3.2 The documentary evidence relied on including

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Panchnama of the place (Exh.9), panchnama of recovery
of clothes of victim (Exh.12), arrest panchnama
(Exh.15), complaint, medical certificates of the
victim (Exh.22 and 26), medical certificate of the
accused (Exh.28) and further, Forensic Science
Laboratory Receipt (Exh.38) for the muddamal sent
(Exh.37) and the report of the F.S.L. (Exh.39). At the
end of the trial, statement of the accused under
Section 313 of the Code of Criminal Procedure was

3.3 The trial ended with the conviction and
sentence of the appellant – accused as above.

4. Learned advocate for the petitioner Mr.P.V.
Patadia, questioning the sustainability in eye of law
of the impugned judgment of conviction and order of
sentence, submitted that the evidence of the witnesses
with regard to the incident was marred by
contradictions. He submitted that witnesses including
the Panchas had turned hostile and therefore, the
recovery of muddamal and other incidental aspects
could not have said to have been proved. He submitted
that learned Sessions Judge ought to have granted
benefit of doubt to the petitioner. It was submitted
that the case of the prosecution was not reliable and
suffered from infirmities and in that context, the
Court committed error on relying of the evidence of
the victim. It was sought to be highlighted that the
victim was indicated to be engaged in the liquor
business, that the appellant – uncle was knowing the
said fact and further knew about the activities of

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purchase and sell of liquor, because of which the
victim filed false complaint to implicate him. It was
submitted that evidence could not be said to be
suggesting that the offence under
Section 376 was
committed in asmuch as, there was no evidence of force
exerted by the accused, nor were any injury marks on
the body or on the private part of the victim.

4.1 On the other hand learned Additional Public
Prosecutor Mr.Rutivj Oza submitted that the medical
examination and FSL evidence were the clear evidence
which established the commission of offence by the
appellant. It was submitted that whatever
contradictions sought to be pointed out in the
evidence, were all minor in nature, insignificant to
lead the case of the defence anywhere and thus could
not be a ground to urge an acquittal.

5. As far as the occurrence of the offence is
concerned, the evidence of the prosecutrix (PW 6,
Exh.16) stands in forefront which fortified the
prosecution case. PW 6 was deposing about one year
after the date of incident and could vividly describe
the happenings on the fateful day. She stated that at
around 09.00 p.m. on that day, her aunt Bhavnaben (PW

7) and sister-in-law Sangitaben had gone to the house
of her grandmother Champaben (PW 8); she was alone in
the house and in the room of the aunt; the
neighbouring person who happened to be her uncle – the
present appellant, came inside and pushed her, because
of which she fell down. He unclothed himself by
removing the pant and overpowering her perform sexual

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act on her. She stated that she had only one hand and
thus being multilated, could not resist forcible act
on part of the appellant. According to the
prosecutrix, the appellant threatened her for life.
Reading the deposition with the contents of the
complaint (Exh.17), it would be seen that versions in
both were consistent enough to be believed so as to
establish happening of the incident. Nothing material
could be brought in contradiction to the main theory
in the cross-examination of PW 6, where she denied the
proposition that the appellant had come with a weapon
and committed a crime, which was not a prosecution
case also.

5.1 The theory put-forth by the prosecutrix in
her evidence (Exh.16) stood duly supported from the
evidence of aunt Bhavnaben (PW 7, Exh.18). PW 7
narrated the story in the same way to further state in
cross-examination that when she came back from the
house of Champaben, the appellant was spotted outside
the Deli (main door of house) and found that inside
the house the victim was in her (aunt’s) room and was
weeping. It was stated by PW 7 that PW 6 told about
the incident, whereafter they went to the house of
maternal grandmother and thereafter to the police
station to file the complaint. In the evidence of PW 7
as well as in the evidence of Champaben (PW 8,
Exh.20), it was uniformly stated about the incident
and further that one Manishbhai had telephoned 108
ambulance in which they all took the victim to the
Government Hospital.

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5.2 The evidence of PW 6 (Exh.16), PW 7 (Exh.18)
and PW 8 (Exh.20), when simultaneously read, did

confirm the evidence by virtue of their consistency in
reporting the facts about the occurrence and post-
occurrence events. Viewed from the settled principles
of law, the evidence of the prosecutirx (PW 6, Exh.16)
was strong and cogent enough to accept the happening
of the incident of commission of offence. Though the
Panch witnesses were declared hostile, a close reading
in law of their evidence could suggest invariably
about their accepting that they had prepared the
Panchnama. This element of truth from the Panch
evidence goes to support the occurrence of the

5.3 It is trite principle that evidence of the
victim could even be solely relied upon to come to the
conclusion about proof of the incident and such
evidence when cogent and convincing, could also be the
basis for the conviction of the offender. The evidence
in the present case is stronger, in asmuch as not only
the evidence of the prosecutrix is credible and
cogent, it finds corroboration and confirmation from
the other evidence highlighted above.

5.4 The evidence of witnesses PW 6, PW 7 and PW
8, reflected on the aspect that the victim was doing
business in liquor. PW 6 having initially denied about
the involvement of the victim in the business, she
stated that the appellant had taunted her on that
count. PW 8 Champaben however denied all the
suggestions on this score. Though the case of

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prosecutrix’s having been engaged in some liquor
business surfaces, in the entire set of evidence on
record, it could not be viewed to be propounding as a
link to the offence. Nowhere in the evidence, there
came even a shade suggestion that, the said aspect was
the cause and the commission of crime by the appellant
was the result.

5.5 The prosecution failed to establish that
since the appellant – uncle knew about the liquor
business of the victim, the victim implicated him. It
is the fact uncontroverted in the evidence that the
victim was physically challenged person having only
one hand, who was in an established incident,
overpowered by the force of the appellant who
committed offence on her. The contention on behalf of
the appellant about false or improper implication of
the appellant on this score, was meritless without any
acceptable supportive evidentiary base therefor.

6. Adverting now to the medical evidence,
Dr.Bhavesh Vora (PW 9, Exh.21) who was on duty at the
Government Hospital where the prosecutirx was taken to
examination deposed inter alia that as per the opinion
of the Radiologist, the victim was major of the age
about 21 years or between 17 and 21 years and that her
medical examination showed normal result. She did not
have any mark of commission of force on her body
except bruises on the backside which were old.
According to medical officer, there was no injury on
her vaginal so as to indicate the force but her hymen
were found to have been ruptured. The medical history

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given by the prosecutirx before PW 9 was that on the
date of incident at around 09.00 p.m. to 10.00 p.m.
her uncle overpowered her and against her will, by
giving blow on the backside of the leg, forcibly
maintained physical relationship to commit crime.
Another medical officer Dr.Chandravali (PW 10, Exh.25)
examined the appellant. According to her opinion,
possibility of intercourse committed was not ruled

7. With the above set of ocular evidence and
the medical evidence, the evidence in the nature of
FSL report (Exh.38 and 39) which contained the
serological examination, were decisive. The clothes of
the accused and the victim, which recovered by the
prosecution came to be sent to the Forensic Science
Laboratory. The serological report indicated the
presence of blood with blood group ‘O’ which was found
both on the private cloth of the appellant as well as
on the Chorni of the victim. It was found mixed with
vaginal swab on the clothes of the both. Thus there
was presence of matching blood group, which was along
with the vaginal swab. This evidence is completely a
gap-filling evidence finally establishing the
commission of offence.

8. The submission about the evidence in the
contradictions entitling the appellant to be
acquitted, could hardly be countenanced. It was sought
to be submitted that at one place the time of the
incident was mentioned as 10.00 p.m. whereas elsewhere
in the evidence it was shown to be around 09.00 p.m.;

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in respect of the manner of removal of clothes by the
accused also some discrepancies were sought to be made
out and it was also by submitting that when PW 7
returned the home, appellant was found to be present
outside the Deli and not inside the room. For
establishing the incident and crime, if broad facts
are cogently proved, minor inconsistency cannot be
projected as major contradictions. Discrepancies of
such nature in the evidence of witnesses is natural as
the witnesses cannot be expected to state the story
with mathematical precision. The deposition with such
exactitude and precision can be viewed only as a
tutored one. It is natural for human person to err on
negligibles while recollecting the incident and giving
evidence in court of law. In any view, such minor
discrepancies cannot tilt the balance of the rest of
the evidence which is unshaken in nature.

9. From the evidence it was shown that victim
was about 16 years of age, she did not have one hand
and was physically challenged in that way. The
appellant was her uncle residing in the neighbourhood
who overpowered the victim to commit the crime under
Section 376, IPC. The victim was physically
handicapped and thus in helpless state and the person
committing crime was uncle, in that way holding
position of dominance. The FSL report and the
serological findings could finally nail the commission
of crime by establishing link in the background of
cogent and believable evidence of the prosecutrix
supported by other evidence which confirmed the
incident and the involvement of the appellant.

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10. Eventhough it was alternatively submitted on
behalf of the learned advocate for the appellant that
Court may consider the aspect of quantum of sentence,
in our considered view, when in the entire incident of
commission of crime, the above outweighing aspects are
seen, and looking to the helpless position of the
victim under which the crime was committed on her, and
the total evidence operating to establish the serious
crime, Court was not persuaded that any mitigating
factor existed enabling to view the heinous crime with
any leniency even for the quantum of sentence.

11. For all the aforesaid reasons and
discussion, the impugned judgment ad order convicting
and sentencing the appellant warranted no
interference. The impugned judgment and order by
learned Additional Sessions Judge, Gondal, dated 31st
January, 2013 sentencing the appellant to undergo
rigorous life imprisonment and further to pay find of
Rs.25,000/- and in the event of non-payment of fine,
to undergo further imprisonment for three months is
hereby upheld. The Appeal fails and stands dismissed.

Record Proceedings be sent back to the

Court concerned forthwith.



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