Farooqbhai Faridbhai Chhipa vs State of Gujarat

Honourable Mr. Justice M.D. Shah

This appeal is filed by the appellant being aggrieved and dissatisfied with the common judgment and order dated 25-9-1993 passed by the learned City Sessions Judge, Ahmedabad, in Sessions Case Nos.299 of 1989 and 300 of 1989 whereby the appellant was convicted and sentenced to undergo RI for one year and to pay fine of Rs.1,000/-in default to suffer further RI for three months for the offence punishable under Se. 354 of IPC. However, the appellant was acquitted for the offence punishable under Sec. 376 of IPC giving benefit of doubt.

Case of the prosecution in short is that on 29-4-1988, one Sumatiben Banaji took the victim, who is married to one Ankalji Praladji of Village Garen in Mehsana District having two children, for casual labour to the factory of one Farukbhai Faridbhai (the appellant herein). In the evening, when the victim was to return home after the work, she was told to do concrete work for some more time as she had come at 10 a.m. and she worked upto 7 p.m.. While she was returning, she was followed by the appellant on his scooter and told her that she had taken Rs.200/-and saying so, she was taken back to factory premises. She, however, told that she had not taken the money and that she had only Rs.2/-in her purse. The appellant told her that her search is to be made and hence, she was asked to remove her clothes and the appellant outraged her modesty and when he kept his hand on breast of the victim, she shouted but she was threatened with a wooden piece. Therefore, a complaint was lodged by the victim on 30-4-1998 at 21.15 hours which is at Ex.29. The Investigating Officer thereafter started investigation, sent the victim to L.G.Hospital for medical treatment, took statements of Watchman at the place of incident, parents of the victim and drew panchnama of place of incident at Ex.18. The appellant-accused appeared himself before the police station and produced stick by drawing panchnama at mark 8/1. After receipt of medical certificate of victim, charge sheet was filed against the accused in the Court on 2-5-1988 and thereafter committal order was passed by the learned Magistrate and case was numbered as Sessions Case No.299 of 1989. Thereafter, on 6-5-1988, the victim lodged another complaint about commission of rape by the accused. Therefore, further statement of the victim was taken in this regard and clothes worn by the victim was recovered under panchnama at Ex.16. Victim was again sent for treatment to Civil Hospital and statements of witnesses were also further recorded and report was sent to Court for addition of Sec. 376 of IPC and sought permission for further investigation. Thereafter, on 8-5-88, statement of Ramtuji Somaji was recorded and accused was sent to Civil Hospital for examination on 12-5-88 and clothes worn by the victim was sent to FSL for analysis. On receipt of FSL report at Exs.25 to 27 and certificate from Civil Hospital on 30-5-88, same were kept with investigation papers. At the end of investigation, charge sheet was filed against the accused on 13-6-88 and thereafter committal order was passed by the learned Magistrate and case was numbered as Sessions Case No.299 of 1989.

As both the cases arise out of the same incident, by an order dated 15-11-1989 passed below Ex.1 in Sessions Case No.299 of 1989, charge against the accused at Ex.2 was framed in Sessions Case No.300 of 1989 and evidence was led in Sessions Case No.300 of 1989 and both the cases were tried together.

The accused denied the charges and prayed for trial. To prove the guilt against the accused, prosecution examined as many as nine witnesses and produced and relied on several documentary evidence including complaint Ex.29, panchnama of place of incident Ex.18, medical certificate of victim at Ex.1, panchnama of recovery of clothes worn by the victim at Ex.16, report of FSL Exs.26 and 27 among other evidence. After the evidence of prosecution witnesses was over, further statement of accused under Sec. 313 of Cr.P.C. was recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, present appellant accused was convicted and sentenced to suffer RI for one year and to pay fine of Rs.1,000/-in default to suffer further RI for three months for the offence punishable under Se. 354 of IPC. He was however given benefit of doubt and was acquitted for the offence punishable under Sec. 376 of IPC. Hence, the present appeal.

Heard learned advocate, Mr.M.J.Muddhbhatti for the appellant and learned APP, Mr.L.R.Pujari for the respondent-State.

It is submitted by learned advocate, Mr. Buddhbhatti that at the first point of time, complaint was lodged for the offence punishable under Sec. 354 of IPC and subsequently after a few days, second complaint for the offence under Se. 376 of IPC was lodged and the trial court has acquitted the appellant-accused for the offence punishable under Sec. 376 of IPC. It is further submitted that once the oral evidence of victim for the offence punishable under Sec. 376 of IPC is not relied upon by the court below, the appellant-accused should not have been punished under Sec. 354 of IPC and, therefore, appeal deserves to be allowed. It is further submitted that there are major contradictions and discrepancies in the evidence of witnesses, however, the trial court has not considered the same and thereby committed a grave error in convicting the appellant-accused under Sec. 354 of IPC. It is submitted that no criminal case is registered against the appellant after occurrence of the incident in question and considering the age of the accused at the relevant time and considering the fact that he has the responsibility of maintaining his family consisting of his wife, two children and aged parents, benefit under the Probation of Offenders Act and Sec. 360 Cr.P.C.

Learned APP, Mr. Pujari, has taken this Court through the evidence of victim as well as the impugned judgment and order. It is submitted that after discussing and appreciating the evidence in great detail and in proper perspective, the trial court has convicted the accused and, therefore, no interference is required to be called for in the impugned judgment and hence, the appeal requires to be dismissed.

This Court has gone through the entire evidence more particularly the evidence of victim together with the judgment and order passed by the trial court.

As per the evidence of victim, who has been examined as P.W.No.1 at Ex.9, as she was in need of money, with the help of witness Sumatiben, she got the labour work at the factory of the accused. According to her, Sumatiben came to her residence and took her to the work site of the appellant for labour work. In the evening at about 6 ''O clock, after work was completed, she stepped down from the roof and when she was cleaning her hands and legs, accused came there and told her that as she came at 10 a.m., she should complete some more work of concrete line. She has further deposed that at that time, other labourers left the site and when she was returning home after completing the work upto 7 p.m., the accused came and alleged that she took away Rs.200/-and took her on his scooter to the premises at site. She has further deposed that to prove her innocence, she opened her purse and showed that only Rs.2/-are there, however, the accused did not believe her version and asked her to remove her blouse otherwise she would be beaten with stick and, therefore, under fear and pressure, she removed her blouse. She has further deposed that thereafter, accused asked her to remove her petticoat and under fear and pressure, she also removed her petticoat and at that time, she was pushed on cotton bundle and when accused put his hand on her breast, she shouted for help, still, however, accused committed rape on her. She has further deposed that at about 8.30 p.m., when she came out from the site in naked position, the accused came with liquor bottle and tried to forcibly administer alcohol by tying her with the pillar and she was beaten by the accused with stick. She has further deposed that all the time the accused was asking the victim to tell the truth whether she has taken Rs.200/-or not. Thereafter, she came out from the window and accused handed over her clothes and after wearing her clothes, she ran away and reached her house. Nothing has come out from her cross-examination to falsify her evidence as far as incident of outraging of modesty of the victim is concerned.

As far as second complaint qua offence of rape is concerned, it creates doubt in the mind of the Court as it appears that subsequently as an after thought and at the intervention of Ramtuji Somaji, second complaint was filed. However, as far as first incident of outraging of modesty of the victim is concerned, since immediately after the incident, complaint was lodged, evidence to this effect is found to be trustworthy and trial court has rightly come to the conclusion that prosecution is able to prove the offence of Sec. 354 of IPC. No doubt, P.W.No.3, Sumatiben Banaji Marwadi, Ex.12 has not supported the case of the prosecution and has been turned hostile. However, she has admitted in the cross-examination of Public Prosecutor that in police statement, she has stated that she asked the victim to come for work and, therefore, victim came to her. This contradiction is proved through the evidence of Investigating Officer and this version is totally corroborated with the oral evidence of victim as well as complaint which is at Ex.29 which was lodged immediately at 2.15 hours on 30-4-89 i.e. within six hours of the incident. It was stated by the victim in the complaint at Ex.29 that as the accused with bad intention asked her to remove her clothes, she declined and due to pressure and beating of the accused, she removed her clothes. Thus, the allegation against the accused in the complaint Ex.29 is of outraging her modesty by pressing her left breast after giving stick blow. Though the victim had all the opportunities of disclosing the alleged incident of rape, she did not disclose the same either in the complaint at Ex.29 or to her parents or her in-law and it is after six days on 6-5-88, she disclosed the alleged incident of rape to Ramtuji, who is a stranger, and lodged complaint thereafter regarding the rape which is not corroborated by any evidence. Non-disclosure of the alleged incident of rape when sufficient opportunities were available to the victim makes it unsafe to believe the testimony of the victim without any corroboration. Hence, the evidence in that regard of rape was rightly disbelieved by the trial court by giving benefit of doubt.

11.The evidence of the victim is quite natural and inspiring confidence and evidence of victim does not require any corroboration as regards offence of outraging modesty of the victim is concerned as the incident has been disclosed at the earliest point of time. It is an admitted fact that there is no enmity between the victim or any family members of the victim with the present appellant accused and, therefore, the question of falsely implicating the accused in such kind of offence does not arise. Nothing is forthcoming from the evidence on record to show that due to enmity or due to some untoward incident took place with the victim by the family members of the accused, she lodged false complaint. The evidence of the victim is found to be quite natural and there is no reason to discard her evidence. In the opinion of this Court, looking to the culture of the Villages in India, no lady would like to lodge false complaint of outraging of her modesty at the cost of her reputation. The accused was therefore rightly held guilty for the offence punishable under Sec. 354 of IPC and sentenced accordingly and he was given benefit of doubt and acquitted for the offence punishable under Sec. 376 of IPC. However, as discussed above, considering the manner in which the incident took place and seriousness of offence havi ng proved against the accused of outraging of modesty of a woman of lower strata of society, no leniency should be shown towards the accused. Hence, the appeal deserves to be dismissed. 12.The appeal is dismissed. The appellant is on bail and hence, his bail bond shall stand cancelled. He is ordered to surrender before the jail authorities within six weeks from today for undergoing the remaining period of sentence.

13.Office is directed to send record and proceedings to the court below forthwith.