R/CR.A/1444/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1444 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
NAGINBHAI MATHURBHAI TADVI….Appellant(s)
Versus
STATE OF GUJARAT….Opponent(s)/Respondent(s)
Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant
MR MANRAJ A BAROT, ADVOCATE for the Appellant
MR JK SHAH, APP for the Respondent
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 08/08/2017
ORAL JUDGMENT
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(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The present Criminal Appeal under Section 374(2)
read with Section 386 of the Code of Criminal
Procedure,1973 (the Cr.P.C.) is directed against the
judgment and order passed by the learned 10th
Additional District Judge, Vadodara, in Sessions Case
No.155 of 2010, whereby the appellant – accused is
convicted and order of sentence is passed against him.
2. The case of the prosecution is that on 18.6.2010
at about 21.00 hours at village Zaverpura, there was a
rain and storm and on account of which the electricity
was disrupted. It is further case of the prosecution
that on account of that situation, the roof of the
house was blown off. It is further asserted in the
complaint that the husband of the complainant, who
came along with appellant accused from labour work,
the appellant took the disadvantage of the situation.
The husband of the complainant happens to be the
father of the prosecutrix was repairing the roof of
the house, whereas the complainant was preparing the
meal in the house. At that point of time, the
prosecutrix, aged about 6 years, was sleeping on the
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cot in ‘Adari’ of the house. The complainant, after
preparing the meal at around 9.00 O’clock in the
night, came to wake up the prosecutrix, who was
sleeping found that she was in bleeding condition and
having seen this situation, she immediately called the
husband to come down. At that point of time, when both
complainant and her husband, ignited the lamp and
mobile battery, woke up the prosecutrix, whose clothes
found with bloodstains and the complainant, after
physically verifying the prosecutrix, asked the
prosecutrix as to what had happened. At that point of
time, the prosecutrix conveyed that Nagindada had
come, who gagged her mouth and after removing her
clothes, had done the act which resulted into
bleeding. On knowing this fact, immediately the
complainant and her husband called the uncle
Pravinbhai Shankarbhai Tadvi, who, along with aunt –
Samkaben and their son – Gopal along with other
persons, came to the house and were conveyed about the
incident which took place with her daughter, who was
raped by the present appellant accused. Since there
was a storm and continuous rain and the electricity
was disrupted on that night, a complaint could not be
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lodged. However, the village people also came to know
about this incident. It is further asserted in the
complaint that since the appellant – accused was going
for labour work along with the husband of the
complainant, he was frequently coming to the house and
the prosecutrix was also knowing him. On that day at
about 6.00 O’clock, the appellant accused along
with the husband of the complainant, after the labour
work, came to the house and it was conveyed by the
appellant accused that as soon as the rain and the
storm stop, he would go to his house. Resultantly, the
husband engaged himself in arrangement of roof of the
house, whereas the complainant went to cook the meal
and taking disadvantage of this situation, it is
asserted in the complaint, that the appellant –
accused committed the rape and ran away and for that
purpose, a complaint came to be filed before the
Bodeli Police Station which came to be registered as
IC.R.No.27 of 2010 on 19.6.2010, which then came to
be investigated by the Investigating Officer.
2.1 Mr.Ashokbhai Valabhai Katkad, an Investigating
Officer, Bodeli Police Station, upon receipt of the
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complaint, has investigated the complaint by taking
necessary steps in that regard and upon completion of
investigation, a chargesheet came to be filed against
the appellant – accused for the offence punishable
under Sections 376 of the Indian Penal Code, before
the learned Chief Magistrate, Sankheda which was
registered as Criminal Case No.3070 of 2010.
2.3 Since the offence was triable by the Court of
Sessions, the learned Magistrate in exercise of power
under Section 209 of the Cr.P.C., was pleased to
commit the case to the Court of Sessions, which was
then registered as Sessions Case No.155 of 2010.
2.4 Upon the case being committed, the learned 10th
Additional District Judge framed the charge on
25.10.2010 against the appellant – accused vide Exh.6,
wherein the appellant – accused pleaded not guilty
and therefore, the prosecution has examined as many as
19 witnesses and also produced the documentary
evidence, 19 in numbers, to see that the case can be
proved beyond reasonable doubt.
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2.5 After leading the evidence, the prosecution
tendered a closure pursis and thereafter, the
statement of the appellant – accused was recorded
under Section 313 of the Cr.P.C., wherein the
appellant had reiterated that he is an innocent person
and has wrongly been implicated and claimed to be
tried. However, he has chosen not examine any witness
nor any elaborate explanation on any incriminating
issue is given. After the said process being
undertaken, the case was put up for further
adjudication, wherein after examining the oral as well
as documentary evidence and after considering the
defence of the appellant – accused, the Trial Court
was pleased to pass the judgment and order dated
31.3.2012, whereby the appellant – accused is held
responsible for having committed an offence of Section
376 of IPC and thereby, by holding the appellant –
guilty of Section 376(2)(f), in particular, of the
Indian Penal Code, sentenced him to undergo the life
imprisonment with a fine of Rs.1000/ and upon non
payment of fine, a 15 days’ simple imprisonment is
ordered by this judgment and order.
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2.6 Considering the evidence on record and upon
examination of the documentary evidence, the Trial
Court has specifically found that the case is made out
against the appellant – accused beyond reasonable
doubt and for coming to this conclusion, a specific
version of the prosecutrix as well as the medical
evidence appeared to have been examined and relied
upon. The Trial Court has also considered the aspect
of presence of the accused at the relevant point of
time at the house of the complainant. In addition
thereto, the Trial Court has found and analyzed the
testimony of the FSL Officer and also that of doctor’s
version, who had medically examined the prosecutrix.
On the basis of evaluation by the Trial Court, it was
found that there appears to be consistency in ocular
evidence as well as the medical evidence and thereby,
after considering every material on record, an order
of sentence came to be passed on 31.3.2012.
2.7 It is against this judgment and order that the
appellant – accused has brought the present Criminal
Appeal before this Court which was admitted by this
Court on 12.2.2013 and has now come up for final
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disposal before us.
3. Mr.Manraj A. Barot, learned advocate for the
appellant – accused, has submitted that all the panch
witnesses, who have been examined by the prosecution,
are the related witnesses and known to the father of
the prosecutrix and even the accused and, therefore,
it is not safe to rely upon the testimonies of such
interested witnesses, to convict the appellant –
accused. Mr.Barot has also contended that every
interested witness has categorically deposed on the
basis of information passed on by the parents of the
prosecutrix and there is no evidence of any
independent witness and, therefore, on the basis of
such evidence, it cannot be said that the prosecution
has established the case beyond reasonable doubt. It
has also been contended by Mr.Barot that the panchnama
which has been drawn is also not in consonance with
the statutory provisions contained under Sections 25
and 27 of the Evidence Act. Even the recovery which
has been made from the place of the accused is belated
recovery and there appears to be contradiction amongst
the panch witnesses on such recovery issue. Learned
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advocate has further contended that timing of
recovery is also deferring from version to version
and, therefore, the testimony of panch witness is not
of any credence. Learned advocate has also contended
that it is highly improbable to believe the case of
the prosecution, since as per the testimony of mother
of the victim, in the house there were other three
daughters and one son already present and the elder
girl child named Nirma, aged 9 years, was also very
much present in the house and, therefore, the
narration of the complaint itself is not believable.
Learned advocate has submitted that it is also not
believable that the victim, aged about 6 years, would
sleep outside portion of the house i.e. Atari in such
an atmosphere where not only there was a rain, but
also a storm was prevailing and, therefore, the case
is highly improbable. In addition to that, learned
advocate for the appellant has contended that had
there been such an inhumane act committed, then a
girl, aged about 6 years, would scream, shout and
would not sleep after the act and the mother of the
victim has categorically stated that at the time when
she saw the victim, was sleeping and, therefore, this
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entire version is not believable as per the say of
learned advocate for the appellant – accused. It has
also been contended that other witnesses have deposed
before the Trial Court on the basis of the information
passed on by the parents of the prosecutrix and,
therefore, their evidence partakes the character of
hearsay evidence which is not safe to be relied upon.
As per the say of the learned advocate for the
appellant – accused, there appears to be a serious
doubt about the involvement of accused in commission
of crime of such a serious crime and also there
appears to be a gross delay in lodging the complaint
as well and, therefore, when such weak piece of
evidence is reflecting on record, it is not safe to
convict the appellant – accused by holding him guilty
and that error which has been committed by the Trial
Court requires to be corrected. It is also pointed out
by Mr.Barot that the blood group of the appellant –
accused as well as that of the prosecutrix is the same
and from the medical evidence and Serological Report,
it is not coming out beyond reasonable doubt that it
is the blood group of the accused which has been found
on the clothes and “Pati” of the cot and, therefore,
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in such a conflicting view which is emerging from the
ocular, medical as well as the FSL analysis, it cannot
be said that the prosecution has established the case
beyond reasonable doubt and by pointing out this,
learned advocate has prayed this Court that the
findings which have been arrived at by the Trial Court
are not in consonance with the material on record and,
therefore, in the absence of any cogent evidence about
specific involvement of the present accused, the
benefit of doubt must be given to the appellant –
accused and consequently, requested the Court to grant
the relief and allow the appeal filed by the appellant
– accused. No other submissions are made by the
learned advocate for the appellant.
4. Opposing the stand taken by Mr.Manraj A. Barot,
learned advocate for the appellant accused,
Mr.J.K.Shah, learned Additional Public Prosecutor for
the respondent – State, has vehemently contended that
this is a fit case in which appropriate punishment is
awarded as the appellant accused has committed
inhuman and heinous crime and made victim a child aged
about 6 years of the complainant and, therefore,
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since the evidence on record is sufficiently
establishing the guilt of the appellant – accused, the
appeal deserves to be dismissed. To substantiate his
contention, learned APP has contended that from the
ocular evidence, if one would peruse the testimony of
the prosecutrix, she has all throughout remained
consistent and unshaken evidence of her is clearly
suggesting that the guilt of the appellant – accused
is established beyond reasonable doubt. Mr.Shah has
pointed out that the genesis of the case has been
established by the prosecution and the main substratum
of the complaint has remained consistent if one would
peruse not only the testimony of the prosecutrix, but
the testimonies of the father as well as the mother –
Jyotsnaben (complainant). Therefore, in the absence of
any deviation of any manner, such consistent version
cannot be ignored and that has rightly been
appreciated by the Trial Court. Learned APP has
further pointed out and contended that the medical
evidence is in consonance with the ocular evidence on
record and in addition thereto, Mr.Shah has
specifically pointed out the testimony of Dr.Hemant,
who not only issued the Certificate, but has examined
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the prosecutrix in first point of time on 19.6.2010
itself and there appears to be a clear opinion about
the rape with the prosecutrix which is substantiated
by the evidence on record. The history which has been
given by the prosecutrix before the examination is
sufficient enough to establish the guilt of the
accused and, therefore, when there appears to be a
categorical medical opinion, there appears to be no
doubt of any nature about the case of prosecution. In
addition thereto, learned APP has pointed out that
there is no previous animosity or enmity even alleged
by either side and, therefore, the wrong involvement
is out of question by the complainant side. On the
contrary, the husband of the complainant and the
appellant – accused were both working together and
evidence is emerging that on account of such
relations, the appellant – accused was frequently
visiting the house and known to the family members as
well, including the prosecutrix and, therefore, when
such relation of trust is completely misused by the
appellant – accused, no leniency should be shown to
the appellant – accused, as the appellant – accused
has taken the disadvantage of the situation of storm,
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rainy atmosphere and disruption of electricity and,
therefore, when such conduct is reflecting from the
evidence on record and the guilt of the appellant –
accused is established beyond reasonable doubt, the
judgment and order assailed in the appeal may not be
interfered with.
4.1 Mr.J.K.Shah, learned APP has also contended that
the Serological Report is also clearly suggesting the
fact of commission of crime. The officer of the FSL,
who has examined and analyzed the place offence, has
also opined against the appellant. In addition
thereto, in Column No.8 of Serological Report at Page
No.187 of paperbook compilation, on Pati (MarkB),
the sperm is clearly that of the appellant – accused
is found and this clearly connecting the appellant in
commission of crime and, therefore, when such
overwhelming material is evident on record, there
cannot be any doubt about noninvolvement of the
appellant – accused in commission of crime. In
addition thereto, learned APP has pointed out that
there appears to be no explanation of any
incriminating circumstances which are put to the
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accused and except bare denial, there is nothing on
record to suggest that any defence is putforth. On
the contrary, overall evidence is examined in detail
and when the prosecution has established the case
beyond reasonable doubt, the Trial Court has committed
no error in passing the judgment and order impugned
and hence, the appeal filed by the appellant deserves
to be dismissed.
5. On the basis of such submissions, since the Court
is called upon to examine the validity of the impugned
judgment and order and since this being an appeal
against an order of conviction, we deem it proper to
apply our independent analysis before coming to the
conclusion of any nature and, therefore, in such
situation, we hereunder examine and analyze the
evidence on record which is pressed into service by
the prosecution.
6. First of all, a specific charge which has been
framed at Exh.6 on 25.10.2010, in which the appellant
– accused was put up for trial is an offence
punishable under Section 376 of the Indian Penal Code.
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Now to prove this specific charge of Section 376 of
the IPC, the prosecution has examined as many as 19
witnesses. The first examination which is undertaken
by the prosecution is in the form of PW1 –
Jayantibhai Bhikhabhai Tadvi, who was examined at
Exh.12. This witness has deposed before the Court that
in his presence, the police collected the “Pati” of
cot and the sand from the house of Vinodbhai, who
happened to be the husband of the complainant and this
panch witness has put his signature upon preparation
of the said Panchnama at Exh.13. He along with another
PW2 – Maheshbhai Bhagabhai Tadvi, who was examined at
Exh.17, also remained present ans signed the said
Panchnama as well as the chit about recovery of blood
stained sand and “Pati” of cot. This witness, who has
consistently supported the case of the prosecution,
has specifically identified by the appellant – accused
in the Court. A bare perusal of the crossexamination
of this witness has reflected that it is not correct
that prepared Panchnama was got signed by the police
and, therefore, this witness has supported the case of
the prosecution.
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R/CR.A/1444/2012 JUDGMENT6.1 The Panchnama which has been prepared is
exhibited at Exh.13, reflecting not only that there
were bloodstains found on the place of occurrence,
but also the bloodstains reflected on the "Pati" of
the cot as also on the floor of the house in the
"Adari" portion where the cot was lying on which the
prosecutrix was sleeping. While drawing the Panchnama,
the Officer of the FSL was also called from Vadodara,
who, upon examination of the scene of offence,
collected the controlled sand, the bloodstained sand
and "Pati" and after packing, the same was sent for
further analysis. This Panchnama has been drawn on the
very next day i.e. on 19.6.2010 at 17.45 hours,
whereas the offence took place at 21.00 hours n
18.6.2010. Therefore, the Panchnama was drawn without
any much delay.
7. The prosecution has thereafter examined PW2 -
Maheshbhai Bhagabhai Tadvi, at Exh.17. This witness is
also panch witness of Panchnama of scene of offence.
In addition to the Panchnama of scene of offence, said
witness is also the panch witness to the recovery of
the bloodstained clothes of the prosecutrix. This
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he had put the signature and also denied that the
Panchnama was not a prepared Panchnama and, therefore,
he has supported the stand of the prosecution. The
Panchnama at Exh.18 reveals that same is supported by
this aforesaid PW2 which was drawn on 19.6.2010 at
10.30 hours.
8. One another witness has been pressed into service
by the prosecution is PW3 - Bhikhabhai Kanjibhai
Tadvi, who was examined at Exh.20, in which also said
witness has supported the case of the prosecution and
this witness has not been declared hostile and,
therefore, so far as Panchnamas are concerned, the
same have been established and supported by the
testimonies of the panch witnesses. The record
reveals that prosecution has examined yet another
witness PW4 - Pravinbhai Ganpatbhai Tadvi, at
Exh.21. Said witness is the panch witness of panchnama
of recovery of clothes, worn by appellant - accused -
Naginbhai. This witness in crossexamination has
deposed that police has written the said Panchnama on
which he signed which is at Exh.22. This Panchnama of
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R/CR.A/1444/2012 JUDGMENTrecovery of clothes is at Page81, in which it is
reflecting that it is the appellant - accused who on
his own drew the squad and led the Investigating
Officer along with the Panchas to show the clothes in
the form of Pant, Shirt and undergarment worn by him
at the time of commission of crime. Incidentally, a
fact is also emerging from this Panchnama which is
also established that on the fateful day i.e. on
18.6.2010, the appellant - accused went with the
father of the prosecutrix at his house since there was
a rain and storm. The description of the clothes worn
by him is detailed out in the said Panchnama. But this
Panchnama since well supported by panch witnesses who
have not turned hostile, it appears that same is
establishing the fact mentioned therein during the
course of trial. Now to support this, the prosecution
has examined PW5 - Pratapbhai Dhanabhai Tadvi, at
Exh.24, who has not only identified the appellant -
accused, but has also fortified the fact that he put
his signature on the Panchnama. Of course, he has
conveyed in the crossexamination that in his
presence, no muddamal was recovered nor a Panchnama
was drawn. However, nothing turns on it as it appears.
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R/CR.A/1444/2012 JUDGMENT9. In furtherance of endeavor to establish the case
against the appellant - accused, the prosecution has
examined PW6 Madhavbhai Maganbhai Patel, at
Exh.25. This witness is a panch witness of Panchnama
of physical condition of the accused. Said Panchnama
at Exh.26 which is reflecting on Page89 of the paper
book compilation where nothing incriminating was found
since said Panchnama as it appears - drawn on
2.7.2010 i.e. much after the day of the incident.
10. The prosecution in order to establish the case
has also examined PW7 - Vinodbhai Vitthalbhai Patel,
at Exh.29. This witness happens to be the father of
the prosecutrix. In the chiefexamination, this
witness has categorically sated that since on
18.6.2010 there was a storm and rain, the appellant -
accused and he came back to his house at about 6.00
O'clock after their labour work was over and since on
account of storm and rain, roof of the house got
damaged and blown off, he went to repair the roof,
while his wife i.e. the complainant was preparing the
meal in the kitchen. He further asserted in the
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cot in "Adari" portion of the house and when the wife
of this witness had gone to wake up the prosecutrix,
at that point of time she found that she was in
bleeding condition; her clothes were reflecting blood
stains and the blood was oozing out continuously.
Immediately on seeing this, the wife called this
witness and when daughter was asked as to what
happened, it was specifically conveyed by the
prosecutrix that Nagindada i.e. present appellant had
gagged her mouth and also removed her clothes and
done the act. On realizing this situation, immediately
this witness had called PW4 - Pravinbhai Ganpatbhai
Tadvi (uncle), who, along with Samkaben (aunt) and
their son - Gopal came there and were appraised with
this fact. It is further reflecting from the
deposition of this witness that since there was
continuous rain, storm and disruption of electricity,
they did not go to lodge the complaint and thereafter,
immediately on the next day i.e. on 19.6.2010, they
lodged the complaint at Bodeli Police Station by
narrating the say which has been conveyed by the
prosecutrix. This witness has specifically identified
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R/CR.A/1444/2012 JUDGMENTthe appellant - accused. In the crossexamination of
this witness, it is revealing that this appellant -
accused came to the house at around 6.00 O'clock along
with him after the labour work. At that point of time,
there was no electricity in the house on account of
storm and rain and also no visibility prevailing. This
witness has reiterated that the prosecutrix has
specifically narrated and conveyed as to what had
happened. Further crossexamination is reflecting
about the topography of house, in which it has been
asserted by this witness that if anything happens in
"Adari", normally no voice will reach to a place where
this witness was arranging the roof of the house. This
witness has further conveyed that it is not correct
that the appellant - accused has not done such
gruesome act with his daughter and is wrongly roping
the appellant - accused on account of any personal
grudge. In fact, the entire deposition is reflecting
that there is no previous animosity between the
appellant - accused and the present witness. It is
also reflecting that the appellant - accused was known
to the family and was used to go together for labour
work.
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R/CR.A/1444/2012 JUDGMENT11. The prosecution has further examined PW8 -
Pravinbhai Shankarbhai Tadvi, at Exh.30. This witness
happens to be the uncle of father of the prosecutrix.
But since this witness was posted above facts narrated
by the parents of the prosecutrix, he can be said to a
hearsay witness. But nonetheless this witness has
supported the case of the prosecution and reiterated
that immediate phone call came informing about the
incident in question and he rushed to the spot with
his family members. This witness is also knowing the
appellant - accused, who is residing in Navingiri.
12. The prosecution has also examined PW9 -
Alkeshkumar Kantilal Desai, at Exh.31. This witness
has deposed that on 2.7.2010 i.e. nearly after 14 days
of the incident in question, the police called him
saying that they had arrested one accused, who has
committed the offence under Section 376 of the IPC and
by drawing the arrest Panchnama at Exh.26, his
signature was obtained. This witness has categorically
stated that Vinodbhai and Jyotsnaben had narrated
about the incident in question and also reiterated
that in his presence, the Panchnama was drawn by the
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R/CR.A/1444/2012 JUDGMENTpolice at Exh.26.
13. The prosecution has examined next one of the
most important witness of the present case, who is PW
10 - Jyotsnaben Vinodbhai Tadvi, at Exh.32. This
witness is the complainant in this case. The analysis
of the evidence of this witness is reflecting that on
the day when the offence took place, she was preparing
meal in the house, where as the husband Vinodbhai was
arranging the roof. She has categorically stated that
the prosecutrix was sleeping on the cot in "Adari"
portion of the house and when she went to wake up her
for the purpose of taking meal, she found prosecutrix
in a bleeding condition and bloodstains were found on
the clothes worn by the prosecutrix. Upon seeing this,
she immediately shouted for the husband to come and
when both asked the prosecutrix, the prosecutrix had
categorically stated that it is the Nagindado i.e.
appellant - accused, who gagged her mouth and after
removing the clothes, did the act and on account of
which the bleeding started. She has stated that after
committing that act, he ran away. She has stated that
immediately thereafter both herself and her husband
called the uncle Pravinbhai and his family members and
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R/CR.A/1444/2012 JUDGMENTsince there was a rainy season and storm, they had not
filed the complaint as electricity was also disrupted
and subsequently, this fact was brought to the notice
of the police authority and lodged the complaint at
Bodeli Police Station. This witness has categorically
identified the clothes which were worn by the
prosecutrix on the day of the incident and has also
identified the accused - Nagin. In crossexamination,
by maintaining her version, she has completely
supported the case of the prosecution. On the
contrary, from her crossexamination, it is revealing
that the presence of the appellant - accused lastly at
the house on that day when the occurrence took place
is established and, therefore, this witness has
materially deposed in favour of the prosecution.
14. The next document is the complaint which has been
filed on 19.6.2010, in which also the narration is in
consonance with the testimony of witness which she has
deposed before the Court.
15. The prosecution has made an attempt to establish
the case by taking assistance from another PW11 -
Mangiben Pravinbhai Tadvi, who was examined at Exh.35.
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R/CR.A/1444/2012 JUDGMENTThis witness happens to be the neighbour, who had also
identified the appellant - accused. It was fortified
in her deposition that on the day of incident, when
she went upon knowing the fact of incident there was
darkness and electricity was disrupted throughout the
whole night. She has admitted that when the police
came, she gave her statement. She has also stated that
whatever written by her is on the basis of information
passed on to her by the complainant - Jyotsnaben.
16. The next witness examined by the prosecution is
PW12 - Gopalbhai Naranbhai Tadvi, examined at Exh.38.
This witness appears to be the relative of the
complainant and cousin of the husband of the
complainant. He went along with his father Pravinbhai
and mother on passing of immediate information on the
phone of Bipinbhai, one of the neighbourers. In cross
examination, he has admitted that he is not having the
phone, but in Faliya, the phone call came at the
residence of Bipinbhai Chandubhai, who, in turn,
informed him. Resultantly, he and his parents went to
the house of the complainant.
17. Yet another witness pressed into service by the
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R/CR.A/1444/2012 JUDGMENTprosecution for proving the case is PW 13 - Shaniben
Vitthalbhai Tadvi, who was examined at Exh.40. This
witness, who happens to be the motherinlaw of the
complainant, has stated that the complainant -
Jyotsnaben informed her about the occurrence with the
prosecutrix. She has conveyed in crossexamination
that she had no personal knowledge about it, but the
information about the incident was reported to her by
the daughterinlaw, namely, the complainant -
Jyotsnaben. Nothing much turns on this, but the next
witness who is the main witness examined by the
prosecution is PW14, who has deposed at Exh.41 and is
the prosecutrix.
18. The deposition of this witness was taken in the
month of February,2012. At that time she was aged
about 8 years. Though she is a child witness but
before taking the deposition, few questions which were
relevant to ascertain whether she is in a position to
depose had been asked and thereafter, the deposition
started. There was a specific question posed before
her in the Court that what had happened in the year
2010 and at that time, she has categorically and
empathetically stated that when she was sleeping on
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R/CR.A/1444/2012 JUDGMENTthe cot in the house, the appellant - accused -
Nagindada had come and gagged her mouth and did the
act. She has categorically identified the accused -
Nagindada, who was standing in the Court. In cross
examination also, she has remained unperturbed and has
categorically reiterated what has been done by the
appellant - accused with her. She has identified this
accused not only in the Court, but has recollected at
the time when occurrence took place and, therefore,
this witness has unshakenly reiterated the act which
has been done with her by the appellant - accused.
Thus, this witness has remained consistent from the
day of incident till the deposition being taken in the
Court.
19. The record of the case indicates that the
prosecution has further examined PW15 Mr.Ashokkumar
Popatlal Jani, at Exh.43. This witness, who happened
to be an FSL Officer, was called to analyze the scene
of offence scientifically. This witness has
specifically verified the spot of offence and has
found that the cot which was lying in 'Adari' portion
of the house was admeasuring 65'x36' rolled over by
cotton 'Pati', on which there were blood marks found.
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R/CR.A/1444/2012 JUDGMENTThis witness had also found the bloodstains on
flooring as well as on cot and the Chemical Test had
been undertaken (Benzadine Test), wherein positive
result was found. The controlled sand was also
collected and after properly sealing the same, was
handed over to the police authority for the purpose of
analysis. In crossexamination, it has been stated by
him that Benzadine Test would not identify the blood
group of a person and therefore, it appears that
further analysis was undertaken. The initial report of
FSL officer is at Page123 of the paperbook
compilation. But since this has been fortified by the
testimony of this witness, we found no deviation.
20. The prosecution has further examined PW16 -
Dr.Maitri Chetanbhai Shah (Gynecologist), at Exh.46.
This witness had on 20.6.2010 physically examined the
prosecutrix, who was brought by the mother i.e. the
complainant. In the history which had been given at
the initial stage while she was brought to the
hospital also, there was a reference with regard to
specific name of the appellant - accused. This Medical
Officer also found that there are no abrasion marks.
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R/CR.A/1444/2012 JUDGMENTHowever, there was a specific first degree perennial
tear was present and since there was no active
bleeding, the patient was discharged from the hospital
on 26.6.2010. In crossexamination, this witness has
stated that since the victim - prosecutrix was aged
about 5 years, she had not put any further questions
and therefore, the history was recorded after
ascertaining from the mother. But the substance of
this examination is that there was a first degree
perennial tear. The report related to the physical
condition is also appended to the compilation after
Page127 onwards.
21. The prosecution has also taken assistance to
prove the case by examining PW17 - Dr.Rameshbhai
Khemabhai Parmar, at Exh.48. This witness was serving
as Medical Officer in S.R.Group14, Kevadiya, District
- Narmada. This witness has stated before the Court
that the appellant - accused was brought by the police
with Yadi and for the purpose of physical examination
of this accused, he was brought before him on
3.7.2010, namely, after almost a period of 16 days
from the incident in question. The testimony of this
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R/CR.A/1444/2012 JUDGMENTwitness is revealing that the appellant - accused -
Naginbhai had stated before him that though he had not
committed an act with the prosecutrix, still the
relatives of the prosecutrix had beaten up and was
brought before the police station. The physical
examination is not revealing any marks of injuries,
but was found by this Medical Officer that he was
capable of having sex. The crossexamination has
indicated that there were no injuries on the body of
the accused. However, the Medical Officer has opined
that if a rape is committed by the accused on five
years' girl, then on private part the injuries may or
may not be there. Nothing much turns out from the
deposition of this witness.
22. Further, the testimony of PW18 - Dr.Hemant
Dahyabhai Patel, who was examined at Exh.53 and who
was the Medical Officer, is also significant to the
background of this case. This witness has in his
deposition has categorically stated that prosecutrix
was brought for physical check up by the grandmother
and the mother i.e. complainant of the prosecutrix and
before checking, consent letter was obtained by him.
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R/CR.A/1444/2012 JUDGMENTThis witness had examined the prosecutrix immediately
on the next day of occurrence i.e. on 19.6.2010 and
the history had also been recorded. Upon physical
examination, this witness had specifically found the
cut mark in the lower portion of the Labia Minora
admeasuring around 4 x 0.5 x 0.5 cm. Proceeding
towards anal portion of the prosecutrix. The general
condition was found to be normal by this Medical
Officer. However, it has been categorically stated
that there was a swelling and pain in lower part of
the stomach and there were no other external marks of
injuries. However, when the private part of the
prosecutrix was checked up, there was a swelling as
well as pain and therefore, a specific opinion was
given by this Medical Officer, who, first in point of
time, examined the prosecutrix, that there appears to
be a rape on the prosecutrix. This important witness
has, in crossexamination, further reiterated that
history about rape being committed on the girl was
recorded. He has denied that recording of the history
at Exh.56 is not written down at the instance of
grandmother or the Yadi. But overall analysis of this
evidence is reflecting that on the private part of the
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R/CR.A/1444/2012 JUDGMENTprosecutrix, there was a swelling as well as cut mark
as found upon physical examination.
23. To prove the case, another P.W.No.19 - Ashokbhai
Valabhai Katkad, examined at Exh.56, has been pressed
into service by the prosecution, who happens to be the
Investigating Officer. This police witness who is
serving as A.S.I. at Bodeli Police Station at that
time a complainant Jyotsnaben, wife of Vinodbhai Tadvi
came to lodge the complaint and as per her say,
whatever conveyed is written down in the complaint.
During the course of investigation, this witness has
examined and recorded the statements of several
witnesses and also undertaken the process of drawing
panchnamas of the scene of offence, has also arrested
on 2.7.2010 as found material against the appellant.
The physical condition has also been ascertained by
examining him and all the muddamal articles which were
recovered were sent by him to F.S.L. Office, Vadodara.
This witness having found enough material against the
appellant accused had submitted the chargesheet
before the Court concerned and also identified the
accused. In crossexamination, he has stated that
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R/CR.A/1444/2012 JUDGMENTSerological analysis of the sperm which has been
collected, the result is undecided. However, in cross
examination, he has stated that blood group 'O' is
same of both the appellant - accused as well as the
prosecutrix. It appears further that there appears to
be no other oral testimony except last this witness,
who has examined PW19.
24. Further, from the analysis of documentary
evidence, few instances are very relevant and,
therefore, same are considered by us while analyzing
the evidence. The Ravangi Nondh indicates that several
samples have been collected and sent for analysis. On
Page185 of the paperbook compilation, the result of
such analysis is indicating that in Column No.1, Item
No.2, MarkB is found to be with sperm mixed with
blood. Even in Item No.5 in Column No.2 of this
result, human blood has been found and same is the
case with Item No.8 in Column No.3 where human sperm
has been found. Even in Item No.13 in Column No.6, the
sperm has been found and the same is the case with
Item No.16 of Column No.7. The further analysis in the
form of Serological Report at Page187 of the paper
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R/CR.A/1444/2012 JUDGMENTbook compilation has categorically reflected that in
Item No.8, 'Pati" MarkB, the sperm has been found of
"O" blood group which is undisputedly belonging to the
appellant - accused and, therefore, when such
incriminating circumstances have been found, so
succinctly on record, it prima facie conclude that the
case is made out against the appellant - accused.
25. On further examining the material, we found that
in further statement recorded under Section 313 of the
Cr.P.C. on all these incriminating circumstances which
were reflecting on record, there appears to be no
cogent explanation of whatsoever nature. On the
contrary, on one hand, there is no explanation in
entire 313 statement of the appellant - accused and on
the other hand, when the appellant - accused was heard
on the issue of sentence, he categorically stated that
he is having no parents; his wife has left him 8 years
back and there is no child and further categorically
stated that for committing such act, he has repented
and and requested to give pardon. Now this version is
reflecting on Page235 of the paperbook compilation
which indicates that when the incriminating
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R/CR.A/1444/2012 JUDGMENTcircumstances connecting the appellant accused have
been put to him, no explanation is offered. On the
contrary, it reflects the repentance and admission of
the appellant - accused and therefore, we, with this
background of fact, even from documentary material
also found that the case is made out by the
prosecution which is connecting the appellant -
accused with crime beyond reasonable doubt and,
therefore, there appears to be no serious infirmity in
the judgment and order passed by the Trial Court.
26. Further, our independent overall analysis is
indicating that the prosecutrix in the present case is
minor, aged about 6 years and the appellant was a
person of trust in the house, as it is emerging from
the record that on account of his going for labour
work with the father of the prosecutrix, was having
frequent visit of the house, all the family members
were knowing the appellant - accused including the
prosecutrix.
27. We also found from the record that a specific
attribution against the appellant has remained
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R/CR.A/1444/2012 JUDGMENTconsistent right from the day of narration by the
prosecutrix till the deposition which has taken place
in the Court. Consistently and unshakenly the
prosecutrix has pointed out everywhere against the
appellant - accused for committing rape on her. Not
only even the history before the doctor has remained
the same, but the medical examination of the
prosecutrix is fortifying the version of the
prosecutrix, as injuries have been found by PW18 -
Dr.Hemant Dahyabhai Patel. Therefore, overall
testimony of the prosecutrix, the deposition of the
complainant about the narration of the incident, is
well supported by the medical evidence and the
prosecutrix even in crossexamination has not
shattered nor shaken and, therefore, since that
consistent version being corroborated by the medical
evidence, more particularly identification has also
been made by the prosecutrix, there appears to be no
reasonable doubt which would permit us to dislodge the
finding arrived at by the Trial Court.
28. Perusal of the entire record and our independent
analysis has further revealed that there is a
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R/CR.A/1444/2012 JUDGMENTconsistency in the medical evidence as well as ocular
evidence and the last seen together of appellant -
accused at the house of the prosecutrix is also
clearly emerging. On the contrary, the situation was
such where there was no electricity, the rain and
storm was in process and the evidence is indicating
that the appellant - accused has taken disadvantage of
the situation and committed the crime.
29. It is further revealing clearly that the
Serological Report is also categorically pointing out
the finger of misdeed committed by the appellant -
accused and there is no explanation of any nature
cogent enough of incriminating circumstances which are
reflecting on the record and therefore, we see no
reason to disbelieve the case of the prosecution in
any manner. Apart from the fact that in 313 statement,
the defence has not putforth any explanation, but at
the same time, no defence witness has also been
examined. On the contrary, when the hearing was
afforded to the appellant - accused on the issue of
sentence, he appeared to have admitted the crime and
sought pardon and, therefore, when consistent version
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R/CR.A/1444/2012 JUDGMENThas come out clearly of the prosecutrix coupled with
well supported medical evidence and FSL analysis, we
see no reason to disbelieve the testimony of the
prosecutrix and the complainant as well.
30. In addition to this, we have also found that
there is no evidence of any nature which would
indicate even remotely that on account of some
animosity, a chance of false implication is there. On
the contrary, the relations were very much cordial.
The father of the prosecutrix and the appellant -
accused were going together for labour work and on
account of that, there was a frequent visit at the
house of appellant - accused and practically, all the
family members were knowing the appellant - accused
and, therefore, element of trust was prevailing in the
house of the complainant for appellant accusedand
that being misused, we found that sentence which has
been awarded and the order of conviction which has
been passed for offence punishable under Section
376(2)(f) of the Indian Penal Code is justified and
sentence has been appropriately awarded and this being
the position, we are in complete agreement with the
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R/CR.A/1444/2012 JUDGMENTjudgment and order of conviction and sentence passed
by the learned 10th Additional District Judge,
Vadodara.
31. In view of the above, the present appeal being
meritless is dismissed hereby. The judgment and order,
dated 31.3.2012, passed by the learned 10th Additional
District Judge, Vadodara in Sessions Case No.155 of
2010, consequently is hereby confirmed. Record and
Proceedings be sent back to the trial Court concerned,
forthwith.
(SMT. ABHILASHA KUMARI, J.)
(A.J. SHASTRI, J.)
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