Bhurabhai Kamabhai Bharvad vs State of Gujarat

A.L. Dave, J.—The appellant came to be convicted by Fast Tract Court No. 9, Kheda at Nadiad, for the offences punishable under Sections 376 & 354 of the Indian Penal Code, by judgment and order dated 5.7.2005, rendered in Sessions Case No. 30/2005. The appellant was ordered to undergo R.I for eight years with a fine of Rs. 3000/-, in default, R.I for six months, for the offence punishable u/s 376 of IPC, and to undergo R.I for two years and pay a fine of Rs. 1,000/-, in default, R.I for one month, for the offence punishable u/s 354 of IPC. Both the sentences were ordered to run concurrently.

The facts of the case, in brief, are that the prosecutrix lodged an FIR with Mahelav Police Station against the appellant stating that on 20th October, 2004 at about 9.15 P.M, the appellant dragged the prosecutrix from her house to an alley and outraged her modesty. She threatened him that she would raise shouts and, therefore, he let her to go. She went home. Then she had tenderness between her legs. She, therefore, told about the incident to her aunt Madhuben and Vimalaben, who, in turn, informed the father of the prosecutrix Ambalal Ukabhai Parmar. This was revealed to him on 21st October, 2004 in the late evening. He, therefore, decided to lodge an FIR and, therefore, he took the prosecutrix to Mahelav Police Station on 22nd October, 2004 in the evening and the FIR was lodged by the prosecutrix only for an offence punishable u/s 354 of IPC.

2.1 On the basis of the FIR, offence was registered and investigation was started. The prosecutrix was sent to the Medical Officer at Karamsad on 23.10.2004. She was examined, samples were taken and sent to F.S.L. The accused was also arrested, got medically examined, samples were taken and sent to F.S.L. Ultimately, the Investigating Officer having found sufficient material against the appellant, lodged charge sheet in the Court of learned J.M.F.C. Petlad, who, in turn, committed the case to the Court of Sessions at Nadiad and Sessions Case No. 30/2005 came to be registered.

Charge was framed against the accused-appellant at Exh.3 for the offences punishable under Sections 354 and 376 of the Indian Penal Code. The accused-appellant pleaded not guilty to the charge and came to be tried.

3.1 On the basis of the evidence led by the prosecution, the trial Court came to the conclusion that both the charges levelled against the appellant were appropriately proved by the prosecution and, therefore, recorded conviction of the accused-appellant and sentenced him to imprisonment and fine, as stated in the earlier part of this judgment.

Learned advocate Mr. P.B. Khambholja appearing for Mr. N.K. Majmudar, learned Counsel for the appellant, submitted that the trial Court has committed an error in appreciation of evidence.

4.1 Learned advocate Mr. Khambholja submitted that the FIR is lodged by the prosecutrix belatedly and that too for an offence punishable u/s 354 IPC only, in spite of the fact that there was vaginal bleeding before lodgment of the FIR. The decision was taken by the father of the prosecutrix to lodge an FIR only on suspicion because of the bleeding. Mr. Khambholja submitted further that the prosecutrix has admitted that she had taken bath and her clothes were washed, and in spite of that, her vaginal swab and her clothes are indicated to be containing semen of the blood group of the accused-appellant. Mr. Khambholja submitted further that if the deposition of the prosecutrix is seen, she does not speak of any intercourse by the accused-appellant. She only says that she became unconscious upon the appellant mounting over her.

4.2 Mr. Khambholja submitted further that even when the Doctor examined the prosecutrix, she was bleeding per vagina. This was on 23rd October, 2004; whereas the alleged incident occurred on 20th October, 2004. Mr. Khambholja, therefore, submitted that this could not have been bleeding on account of rupture of hymen, although the Doctor denies the suggestion that this was bleeding due to menstrual cycle. The learned advocate, therefore, submitted that the prosecution case cannot be said to have been proved against the appellant beyond reasonable doubt. The benefit of doubt ought to have been given to the appellant by the trial Court and, therefore, the appeal may be allowed and the conviction may be set aside.

The appeal is opposed to by learned A.P.P. Mr. Mengdey. According to him, the report by Serologist and the deposition of the Doctor are pieces of evidence, which are coming from independent agency, and there is no reason to suspect the results or their opinion. The Medical officer has, in terms, stated that bleeding was not because of menstrual cycle, and the F.S.L report indicates that the clothes of the prosecutrix and her vaginal swab, both, contained semen of Group `B'', which is found to be that of the accused-appellant from the samples taken from him. The trial Court was, therefore, justified in recording conviction and the appeal may, therefore, be dismissed.

We have examined the record and proceedings in the context of what is argued before us.

The prosecutrix is examined as PW.1 at Exh.7. In her deposition, she says that the incident occurred about 4-6 months prior to her deposition at about 10.00 P.M., when she was sleeping in front courtyard of her house. The appellant gagged her mouth and took her away to an alley. Thereafter he raised her skirt and mounted her. She further says that then she became unconscious and does not know what happened. According to her, she remained unconscious over there and her father came in search of her and took her to their home. She says that she had tenderness between her legs and there was bleeding and, therefore, she talked to her aunt and they took her to Vadtal Hospital. She then says that she had not gone anywhere-else, but, she admits to have given the FIR Exh.8. From her deposition it emerges that she was taken to Vadtal Hospital even before lodgment of the FIR, but, no evidence in that regard is adduced by the prosecution. It also emerges from her cross-examination that the FIR was dictated by her father, who, according to him, had suspected a rape, which prompted him to lodge an FIR. The cross-examination of the prosecutrix makes it clear that her entire version about gagging of her mouth, raising her skirt and the appellant mounting over her, is improved from her FIR. It is admitted by the prosecutrix that during two days between the incident and lodgment of the FIR, she used to attend her daily chores and had taken bath and had also washed her clothes. She also admits that she had not told anybody about the incident for three days. This is relevant for the reason that as per the prosecution story, the prosecutrix told her aunt Vimalaben and Madhuben about the incident on the next day, whereafter, she was taken to Vadtal Hospital and FIR was lodged at Mahelav Police Station. At this stage, we may also say that Vimalben, who is examined as PW.3 at Exh.10, has not supported the prosecution case and has been treated as hostile to the prosecution. She, in terms, says that Chandrika had not told her anything. The prosecution has not examined Madhuben.

7.1 The deposition of Ambalal, father of the prosecutrix, is recorded at Exh.9. From his deposition, it is clear that he had proceeded only on a suspicion of rape. The prosecutrix in her FIR says that after the incident she went to her home on her own. In her deposition she says that she had become unconscious, she was lying at the place of the incident and was taken home by her father. The place of incident, according to the prosecutrix, is an alley; whereas as per the deposition of Ambalal, he found the prosecutrix in a Shed of the appellant-accused, which is contrary to the say of the prosecutric herself. The evidence of the Doctor is recorded at Exh.18. He says that when he examined the prosecutrix, her mental condition and behaviour was normal and her gait was also normal and he did not find presence of any semen or pubic hair of the culprit on her person. He says that she was found bleeding per vagina. He also says that the physical development of the prosecutrix was good. However, he denies the suggestion that the bleeding found per vagina of the prosecutrix was because of menstrual cycle. The Doctor has, however, admitted that there was no vaginal abrasion or swelling, and if there is a forcible intercourse, there would have been presence of such abrasion or swelling. Thus, the medical evidence also makes a forced intercourse doubtful in absence of any abrasion or swelling in vagina.

7.2 The F.S.L. Report is produced at Exh.25. The Serologist Report is at Exh.28. They indicate that the top, skirt, vaginal smear, vaginal swab, all contained semen and blood of Group ''B''. These reports also indicate that the blood group of the accused and his semen was `B''. It is nobody''s case that the clothes worn by the prosecutrix at the time of the incident, were preserved intact and were produced before the police and, in turn, were sent to F.S.L. There is no explanation coming from the prosecution as to how these articles contained stains of semen or blood on them even after the clothes were washed. It is an admitted situation that the prosecutrix had also taken bath during the two days. The Serologist Report Exh.28 would also go to show that the blood group of the prosecutrix is also `B'', which would explain the presence of blood on her clothes and vaginal swab and smear.

The deposition of the Investigating Officer would go to indicate that it was revealed in his investigation that the father of the prosecutrix and the father of the appellant-accused had some dispute about land and its price, which is flatly denied by the prosecution. This would reflect that the father of the prosecutrix had little regard for truth.

8.1 It is also revealed from the evidence of the Investigating Officer that he did not deem it necessary, initially on lodgment of the FIR, to send the prosecutrix for medical examination because the FIR was only for an offence punishable u/s 354 IPC. He says that he recorded the further statement of the prosecutrix on the next day of the lodgment of the FIR in the morning, which revealed occurrence of an offence punishable u/s 376 IPC and, therefore, he sent the prosecutrix for medical examination. It, however, does not come on record as to what prompted the Investigating Officer to record the further statement of the prosecutrix on the very next day of the lodgment of the FIR, without any further investigation. Neither the prosecutrix, nor her father says anything about recording of the further statement of the prosecutrix in the next day morning of the lodgment of the FIR.

The cumulative effect of the above sort coming into the prosecution story would render the prosecution case weak. In our opinion, the case cannot be said to have been proved up to the hilt and it would be risky to confirm the conviction founded on such evidence. The appeal, therefore, merits acceptance.

For the foregoing reasons, the appeal is allowed. The judgment and order dated 5.7.2005 rendered by the learned Presiding Officer, 9th Fast Track Court, Nadiad, recording conviction of the appellant-accused for the offences punishable under Sections 376 and 354 of the Indian Penal Code, in Sessions Case No. 30/2005, is hereby set aside. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant.