Kishan Kanjibhai Dhulabhai Patani vs State of Gujarat

Abdullah Gulamahmed Uraizee, J.�All these appeals arise from the self-same judgment of the learned Additional Sessions Judge, Fast Track Court No. 1, Ahmedabad City, rendered in Sessions Case No. 321 of 2007, and therefore, they are being disposed of by this common judgment. Criminal Appeal Nos. 1523 and 1743 of 2009, 462 of 2010 and 1984 of 2010 are preferred by the original accused persons-appellants herein while Criminal Appeal No. 1557 of 2010 is preferred by the State for punishing the original accused No. 1-Mukesh @ Kalu Kanjibhai Patani, original accused No. 3-Shankar Asuji Gomar (Bhil) and original accused No. 4-Vihaji Bachuji Thakor under Sec. 376(g) of the I.P. Code.

The appellants have challenged their conviction and order of sentence dated 14-5-2009 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Ahmedabad City, in Sessions Case No. 321 of 2007, whereby the appellants-original accused are convicted for the offences punishable under Secs. 376, 363, 366(A) and 120B of the Indian Penal Code (for short the "I.P. Code").

For conviction under Sec. 376 of the I.P. Code, the appellants have been sentenced to undergo imprisonment for life and fine of Rs. 10,000/- each, in default of payment of fine, they shall undergo further simple imprisonment for one year. For conviction under Secs. 363, 366(A) and 120B of the I.P. Code, the appellants have been sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 5,000/- each, in default of payment of fine, they shall undergo further simple imprisonment for six months. All the accused were given the benefits of set-off.

The brief facts of the prosecution case as unfolded against the appellants-original accused during the trial is that on 15-7-2006 at about 11-00 p.m. P.W. 11-original complainant, mother of the victim was sleeping on a cot along with the victim, aged then fours years and three months, outside their house. Between 2-30 a.m. and 3-30 a.m. the appellants-original accused removed the minor victim from the guardianship of her mother-original complainant and kidnapped her with an intention to have sexual intercourse and committed rape on the minor victim in a field near Sanjay Nagar Chhapra and thereby committed the offences punishable under Secs. 363, 366(A), 376 and 120B of the I.P. Code. A complaint in respect of this incident was lodged by the complainant with Ghatlodiya Police Station. In pursuance of this complaint, F.I.R. vide Ghatlodiya Police Station I-CR. No. 210 of 2006 came to be registered.

The investigation was taken up and after usual investigation, charge-sheet came to be filed against the appellants. The offences committed by the appellants were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Ahmedabad City under Sec. 209 of the Code, where it was registered as Sessions Case No. 321 of 2007. Charge vide Exhibit-3 came to be framed against the appellants. They pleaded not guilty and claimed to be tried.

5.1. In order to bring home the charge against the appellants, the prosecution examined the following witnesses :

5.2. The prosecution also produced and relied upon the following documentary evidence during the course of the trial :

5.3. After conclusion of the trial, under Sec. 313 of the Code further statement of the appellants came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned A.P.P. and learned Advocate for the appellants and after appreciating the evidence, recorded the judgment and order of conviction against the appellants as aforesaid. Therefore, the present appeals.

We have been taken through the oral and documentary evidence by learned Advocates for the appellants and learned A.P.P. for the respondent-State. We have independently and dispassionately applied our mind to this evidence.

We have heard Mr. Mrudul M. Barot, learned Advocate appearing in Criminal Appeal No. 1523 of 2009, Ms. Rekha H. Kapadia, learned Advocate appearing in Criminal Appeal No. 1743 of 2009 and learned A.P.P. Mr. H.S. Soni, appearing for the State in all these appeals. The learned Advocates on either side have taken us through the ocular and documentary evidence on record.

Learned Advocate Mr. Barot has contended that the incident of kidnapping of the victim is said to have taken place in the wee hours of the night and there is no eye-witness to the incident in question, and therefore, the Test Identification Parade was imperative to establish the identity of the appellants but no such Test Identification Parade was conducted. It is his further contention that P.W. 1-Dr. Alpesh Binodchandra Patel in terms has stated that during the physical examination of the appellants no injury was found on the body and private parts of the appellants. So far as the history before this witness i.e. P.W. 1 - Dr. Alpesh Binodchandra Patel is concerned, all the accused persons were in police custody when the so-called history was given to this witness, therefore, the history would not be admissible in evidence. He has drawn our attention to Exh. 87, the report of D.N.A. profile, wherein the following finding is recorded :

"Therefore, it is concluded that Mukesh Urfe Kalu Kanjibhai Patni (source of Exh. 1), Kishan Kanjibhai Patni (source of Exh. 2), Shankarbhai Ashuji Marwadi (source of Exh. 3) and Vihaji Bachuji Thakar (source of Exh. 4) are excluded as donor of semen present on frock and sweater of victims of cases 6/B/110 and 6/B/125, respectively."

8.1. Therefore, he has urged that there is no cogent evidence on record to prove the case against the present appellants. Hence, according to him, the learned trial Judge has committed a serious error in convicting the present appellants.

The learned Advocate Ms. Kapadia has adopted the arguments of Mr. Barot, and has further contended that neither the victim nor the mother of the victim has either named the perpetrators of the crime or have they identified the appellants as the perpetrators of the crime in the Court, and therefore, the prosecution has failed to prove the involvement of the appellants in the crime beyond reasonable doubt. Therefore, she has urged that the impugned judgment and order of the learned trial Judge may be quashed and set aside and the appellants may be acquitted of all the charges levelled against them.

The learned A.P.P. Mr. Soni, has strenuously tried to support the impugned judgment and order of sentence. He has drawn our attention to Paragraph No. 66 of the impugned judgment, wherein the learned trial Judge has adumbrated the circumstances appearing against the appellants to connect them with the commission of crime.

10.1. He has also submitted that P.W. 7-Gopalbhai Babubhai Dantani, who is the panch witness of the place of the incident, has supported the prosecution case, and therefore, the prosecution has successfully proved the case against the present appellants beyond any doubt. Hence, he has urged that the present appeals lack of merits and does not warrant any interference by this Court.

We have given our thoughtful consideration to the arguments canvassed by the learned Advocates for the respective parties. We have minutely perused the ocular and documentary evidence obtainable on record.

We are convinced that on 15-7-2006 in the wee hours, the victim who was merely four years and three months was subjected to heinous act of rape by brutish men. We have no doubt in our mind that the crime perpetrated on the victim was most brutal, barbaric and heinous. We have, therefore, to consider whether the perpetrators of this crime were the appellants or not?

On behalf of the prosecution, the complainant is examined as P.W. 11 vide Exh. 50 while victim is examined as P.W. 12 vide Exh. 52. It emerges from the evidence of these two very material witnesses that at about 11-00 p.m. in the night of 15-7-2006 victim was kidnapped and removed from the lawful guardianship of P.W. 11-Mother of the victim and was taken to a field situated Near Sanjay Nagar Chhapra where modesty was ravaged. Coupled with the evidence of these two witnesses, P.W. 2-Dr. Haresh Umeshchandra Joshi, who has stated that he had examined the victim on 17-2-2006 and he was satisfied that the victim was subjected to rape prior to her examination. Therefore, from the evidence of these three witnesses, the prosecution has successfully established on record beyond pale of doubt that minor victim, aged four years and three months was subjected to sexual intercourse and her modesty was ravaged.

Now, the crucial issue regarding the identity of the perpetrator of the heinous crime required to be examined by us. P.W. 11-Mother of the victim-complainant and P.W. 12-victim are the witnesses who could have established the identity of the perpetrators of the crime but neither P.W. 11 nor P.W. 12, complainant and the victim respectively, either named the perpetrators in their oral evidence or did they identify the appellants as the perpetrators of the crime in the Court during their evidence. It also needs to be stated here that the complaint, Exh. 51, has not mentioned the names of the perpetrators of the crime.

Under these peculiar facts and circumstances, it was obligatory on the part of the Investigating Officer as expounded by the Hon''ble Supreme Court in catena of decisions to have conducted the T.I. Parade to establish the identity of the appellants as the perpetrators of the crime, but admittedly no such T.I. Parade was conducted. Therefore, from the evidence of P.W. 11 victim and P.W. 12-complainant-the mother of the victim, the prosecution has failed to establish that it was me appellants who had committed heinous crime of rape on the minor victim.

The learned A.P.P. Mr. Soni, has made an attempt to connect the appellants with the crime on the basis of the evidence of P.W. 1-Dr. Alpesh Patel, who had examined the appellants on 31-7-2006 and all the appellants had given the history to this Medical Officer that they had committed rape on the victim on 15-7-2006, and therefore, on the basis of this confession before the Medical Officer, according to learned A.P.P., their involvement is proved beyond doubt by the prosecution. We are afraid that we would not be also to convince ourselves to accept this submission of learned A.P.P. for the simple reason that it emerges from the evidence of this witness that all the appellants were brought to the Civil Hospital, Ahmedabad by Police Constable Mr. Bhardresh of Ghatlodiya Police Station. Therefore, one fact is crystal clear that when the appellants were taken to the Civil Hospital, Ahmedabad for physical examination they were in police custody. P.W.1-Dr. Alpesh Binodchandra Patel has admitted in his cross-examination that all the four appellants were brought by the police and he did not enquire since when the accused persons i.e. appellants were in police custody.

In view of this clear evidence of the Medical Officer since the history was given by the appellants to him when they were in police custody, the history given by them cannot be considered as confession as it would be hit by Sec. 27 of the Evidence Act. Therefore, the contention of learned A.P.P. to connect the appellants with the crime on the basis of the history given before P.W. 1-Dr. Alpesh Binodchandra Patel cannot be accepted.

Learned Advocate Mr. Barot has drawn our attention to a very crucial piece of evidence i.e. Exh. 41, D.N.A. profile report. We have extracted the finding of this report hereinabove and it is very clear from the findings that the sample of semen does not match with the semen of the appellants, and therefore, there is no iota of evidence against the appellants to connect them with the commission of the crime.

We are of the opinion that the learned trial Judge has committed serious error in convicting the appellants with a serious offence without there being any cogent and reliable evidence establishing the guilt of the appellant. Therefore, we have no other option but to accept the appeals preferred by the appellants-original accused and the appellants are required to be acquitted.

So far as the appeal preferred by the State for punishing the original accused Nos. 1, 3 and 4 under Sec. 376(g) of the I.P. Code is concerned, the same deserves to be dismissed for the foregoing reasons. For the foregoing reasons, the following order is passed :

"(i) Insofar as the Appeal preferred by original accused persons being Criminal Appeal Nos. 1523 and 1743 of 2009, 462 and 1984 of 2010 are concerned, the same are hereby allowed. The judgment and order of conviction and sentence under challenge is quashed and set aside and the appellants-original accused are acquitted of all the charges levelled against them. Since, the appellants of Criminal Appeal Nos. 1743 of 2009, 462 of 2010 and 1984 of 2010 namely Mukesh @ Kalu Kanjibhai Patni, Vihaji Bachuji Thakor and Shankar Asuji Gomar (Bhil) respectively are on bail, their bail-bonds stand discharged. The appellant of Criminal Appeal No. 1523 of 2009 namely Kishan Kanjibhai Dhulabhai Patni is in jail, therefore, he is ordered to be released from the jail forthwith, if he is not required in connection with any other offence. The fine, if any, paid by appellants shall be refunded to them on proper identification.

(ii) Insofar as the Appeal preferred by the appellant-State being Criminal Appeal No. 1557 of 2010 is concerned, the same is hereby dismissed.

(iii) R. & P. be sent back to the concerned trial Court forthwith."