Ashwinbhai Devjibhai Vasava vs State of Gujarat

Akil Kureshi, J.—The appellant original accused, has challenged the judgment of the learned Additional Sessions Judge, Rajpipla, dated 31.3.2009 in Sessions Case No. 22/2008. He was convicted for offences under sections 376 and 506(2) of the Indian Penal Code. For offence u/s 376, he was sentenced to imprisonment for life and fine of Rs. 50,000/- was imposed. For offence u/s 506(2), he was sentenced to imprisonment for one year and fine of Rs. 1000/- was imposed. From such fine, amount of Rs. 35,000/- is ordered to be paid to the victim. Briefly stated, prosecution version was that the victim girl was below 12 years of age. She lived with her father at village Besana. For four months before 23.4.2008, the accused subjected the victim to forcible sexual intercourse on various occasions and at different places. He threatened her and also offered her money for such acts. Charge was thus framed at exh.8 alleging that he had in the process committed offences punishable under sections 376 and 506(2) of the IPC.

Amarsinghbhai Hirabhai Vasava, PW-1, Exh. 11, the father of the victim deposed that his daughter, the victim, was aged about 12 years and at the relevant time was studying in 6th standard. His elder daughter Sumitra was already married. Few days after the Holi festival, the elder daughter Sumitra came to his house and told him that one Gambhir Gamiya was offering Rs. 500/- for taking the victim to the hospital for abortion, but Sumitra returned the money. Sumitra told him that the victim was pregnant. The prosecutrix later informed him that she was pregnant through accused Ashwin Devjibhai. She had not previously informed him about the incidents. He deposed that the prosecutrix eventually gave birth to a girl child. He identified the accused before the Court. He knew him because Ashwin lived with his father only two houses away from his.

2.1. In the cross examination, he agreed that he and others had gone to the police station with a written complaint and sat at the police station because despite complaint, no action was taken.

Sumitra Pankajbhai, PW-2, exh. 13, elder sister of the victim deposed that at the Diwali time the victim had come to her house and told her that she is four months pregnant through accused Ashwin. Ashwin had taken her to the first floor of his house and then committed rape after threatening her. Next day, one Gambhir Gamiya of the village came with Rs. 500/- for aborting the fetus. She did not take the money. Next day, she went to her father''s house with her sister and informed the father about the incident.

3.1. In the cross examination, she stated that the victim was about seven months pregnant. She reiterated that the victim had referred to the accused Ashwin and none else.

The victim girl, PW-3, exh.15, deposed that she had studied upto 6th standard but thereafter, discontinued. Her sister Sumitra had already got married. She had studied in the primary school of the village till 6th standard.

4.1. Her father was doing labour work. She would mostly stay at home looking after household work. Once after her father went to work, accused Ashwin came to her house and took her to a bungalow of one Raisingbhai and thereafter, committed forcible rape on her. This happened around Diwali in the year 2007. After rape she stopped menstruating. People therefore, started whispering that the girl was pregnant and started to make fun of her. She had then gone to her sister Sumitra''s house and came back to her house with Sumitra. Accused Ashwin had sent Rs. 500/- through Gambhirbhai for abortion which they had returned.

4.2. She could not recount number of times she was raped at the house of Raisingbhai. She had given birth to a girl child who was not yet named.

4.3. At this stage, the witness gave account which was not in consonance with her statement before the police. She stated that she did not know the accused. The person who raped her was not present before the Court. She later on stated that she did know Ashwin who was her neighbour but did not know the Ashwin who had raped her.

4.4. At this stage, the witness was declared hostile and permitted to be cross examined by the prosecution. She apparently had in her police statement given detailed account of the mode and the manner in which she was subjected to repeated sexual intercourse against her wish by the accused. During each time the accused would pay her Rs. 10/-.

4.5. In the FIR exh.18, the victim had referred to such various instances of sexual intercourse by the accused and giving money to her during such instances.

Pahadsing Tuliyabhai Vasava, PW-6, exh.27 was the Talati-cum-Mantri of village Besana. He produced at exh.28 the birth certificate of victim showing her date of birth as 8.11.1995.

Dr. Sandeepbhai Balvantrai Vasava, PW-4, exh. 19 had examined the victim girl when she was brought before him on 24.4.2008. He was the medical officer at the Community centre, Dediapada. He had recorded the history given by the victim girl as being subjected to forcible intercourse by the accused at the house of Amarsing as well as at her house and of giving money. He had found that the girl was pregnant. Her hymen was torn. The vagina permitted two fingers with ease. He produced at exh.21 the certificate of examination in which above-noted history was recorded by him.

This doctor had also examined the accused Ashwin and found him physically well developed and able to perform normal sexual intercourse. He had also recorded the history given by the accused in the certificate exh.23 in which the accused had stated about physical relations built with the victim at the house of Raisingbhai and thereafter, at other places.

Dr. Ajit Chandulal Zaveri, PW-5, exh.24 was the medical officer at Rajpipla to whom the victim was referred by the doctor at the Government hospital, Dediapada. He had also recorded the history given by the victim in certificate exh.26 of alleged rape by accused Ashwin Devjibhai. Upon sonography, he confirmed that the victim carried a fetus of 18 to 19 months old.

Fatehsinh Laxmanbhai Vasava, PW-11, exh.40, the investigating officer had carried out the investigation. He described the different steps taken by him during the course of such investigation. This in the nutshell is the evidence on record.

On the basis of such evidence, learned advocate for the appellant vehemently contended that the prosecution failed to establish the charges against the accused. The learned Judge committed an error in convicting the accused on the basis of such evidence. In particular, he highlighted that the victim girl had not supported the prosecution and had not identified the accused before the Court as the perpetrator of the crime.

On the other hand, learned APP Ms. Maithili Mehta opposed the appeal contending that the trial Court had given cogent reasons for convicting the accused. The girl was below 12 years of age. Conviction and sentence may therefore, be upheld.

Few things immediately emerge from the evidence. Firstly, the victim was below 12 years of age at the time of the alleged incident. We may recall the incident according to the prosecution happened more than four months before 23.4.2008. According to the victim also, the sexual intercourse took place during the Diwali in the year 2007. Her date of birth duly recorded in the official Government records was 8.11.1995 as can be seen from the certificate of birth, exh.28. The girl was thus below 12 years of age.

Accused Ashwin lived only two houses away from that of the victim. Her father Amarsinghbhai Hirabhai Vasava, PW-1 deposed that the accused lived with his father only two houses away from his own house. The victim resided with her father and brother. The mother was not with the family. She had earlier left her matrimonial home and as per the victim later on died. The father was doing the labour work. This would leave the victim and perhaps her younger brother alone at home virtually through out the day. It is equally established that the victim was subjected to sexual intercourse. The fact of her being pregnant and later on having delivered a girl child is not even disputed by the defence.

The only question is, was the accused involved in such incidents? In this context obviously the deposition of the victim would be of paramount importance. We may therefore, appreciate her evidence.

In her deposition, the victim had clearly given the narration of the accused having subjected her to intercourse. Once when her father had gone out for work, Ashwin had come home, caught her and took her to the house of Raisingbhai where he raped her. Since then she stopped menstruating. She got pregnant. People started whispering about it. Ashwin had sent Rs. 500/- through Gambhirbhai which was returned.

It is true that from this stage on the victim changed her stand and did not support the prosecution. In the FIR, she had given detailed account of different occasions when she was subjected to forcible sexual intercourse by the accused Ashwin and each time, he would try to pay her to buy her silence.

It is by now well settled that the entire evidence of a hostile witness need not be discarded from consideration. If a portion of such evidence supports the prosecution and is otherwise found to be believable, reliance can be placed on such evidence. In this case, there was ample corroboration to the testimony of the victim, of the accused having subjected her to intercourse. Firstly, though in the later portion she tried to absolve the accused, stuck to her version that she was raped by one Ashwin. She merely did not identify such perpetrator as the Ashwin present before the Court. Her earlier version that the accused had subjected her to rape was duly corroborated from various angles.

Firstly, she had recounted her plight to her sister Sumitra when she had become pregnant. Sumitra,PW-2 then took the girl to father Amarsinghbhai PW-1. Both these witnesses recounted the version of the victim. Dr. Sandeepbhai Balvantrai Vasava, PW-4, who had first examined the victim had noted down a detailed history given by him in his certificate exh.21. In such history, the victim had implicated the accused in having sexual intercourse with her on number of occasions.

The victim was referred to Dr. Ajit Chandulal Zaveri, PW-5 at Rajpipla Government hospital. He had also recorded the history given by the girl in his certificate exh.26 of being raped by the accused. In the FIR exh.18 also, the victim had implicated the accused of having raped her on different occasions.

The testimony of the victim thus is supported by corroborative evidence. While appreciating her evidence, we cannot forget that she was just over 12 years when her deposition was being recorded. Her evidence shows that the proceedings had to be adjourned couple of times due to stressful condition in which she was, while recounting her version before the Court. In fact, the deviation in her deposition came when the Court adjourned for recess and reassembled thereafter.

In case of Akil @ Javed Vs. State of NCT of Delhi, the Apex court stressed the need to proceed with the trial on day to day basis until the trial is concluded to ensure dispensation of justice without providing any scope for unscrupulous elements to meddle with the course of justice to achieve some unlawful advantage. It was a case in which the examination-in-chief of prosecution witness was concluded on 18.9.2000. He was cross examined after two months on 18.11.2000 only, at the instance of counsel of the accused on the ground that counsel was engaged in some other matter in the High Court. The Court concluded that such delay was used by the accused to induce the witness to resile from his stand and change his testimony, exonerating the accused. The Court on the basis of exam-in-chief of the said witness and other corroborative evidence, proceeded to uphold the conviction of the accused.

In the present case, in our opinion, the charge against the accused thus stood duly established. His involvement in sexual intercourse with the victim on several occasions and then in the process impregnating her stands proved. His conviction for offence u/s 376 of the IPC was justified.

The question is of sentence. Section 376(2)(f) pertains to a person who commits rape on a woman when she is under 12 years of age and prescribes punishment for rigorous imprisonment for a term which shall not be less than 10 years but which may be for life. Proviso to said sub-section provides that Court may for adequate and special reasons to be mentioned in the judgement, impose sentence of imprisonment for a term less than 10 years. The trial Court in the present case has imposed maximum possible sentence of life imprisonment. In our opinion, such sentence is harsh. Though alleged we do not see any force being employed by the accused in commission of the offence. Apparently, he used money to buy the favour from the victim. Nevertheless, her consent was wholly inconsequential looking to her tender age. However, the accused did not deserve maximum possible punishment. He himself was a relatively young boy aged about 20 years. At the same time, we are not inclined to award sentence below 10 years that is the minimum prescribed for the said offence. No special or adequate reasons are pointed out to us to do so. In the result, appeal is allowed in part.

Conviction of the appellant for offence u/s 376 of the IPC is confirmed. His sentence for the said offence is reduced to 10 years of rigorous imprisonment.

Direction for payment of fine, default sentence and compensation to the victim remain unchanged.

His conviction u/s 506(2) of the IPC is set aside.

judgment of the trial Court stands modified to the above extent. Appeal is disposed of in above terms.

R & P may be transmitted to the concerned trial Court.