Ganeshbhai Balubhai Patel vs State of Gujarat

Honourable Mr. Justice A.L. Dave

By judgment and order dated 31.12.2004 in Sessions Case No.30 of 2004, Sessions Court, Navsari convicted the appellant for offences punishable under Sections 302, 376 and 201 of IPC and sentenced him to undergo imprisonment for life with a fine of Rs.5,000/-, in default, to undergo further SI for three months; RI for ten years with a fine of Rs.5,000/-, in default, to undergo further SI for 2 years; and RI for 6 years with a fine of Rs.1,000/-, in default, to undergo further SI for one month, respectively. The sentences were ordered to run concurrently. Hence, Criminal Appeal No.219 of 2005 is preferred by the convict.

The case of the prosecution against the appellant-convict, in brief, is that the appellant raped the minor victim on 12.3.2004 at about 6-30 hours in the outskirts of village Ghej, Vanzhari Falia of Chikhli Taluka and then strangulated her to death and thereafter tried to wash out his clothes stained with blood and thereby caused disappearance of evidence. The victim had gone to school on the relevant day. She returned to home at about 5-00 PM and then she was sent out for shopping to the shop of one Manubhai, but thereafter she did not return. The victim''s father PW-1 Mohanbhai (Exh.6) and his family members, therefore, started a search for her in the night and the dead body of the victim was noticed by her sister and mother. They, therefore, raised shouts and everybody assembled there. It was found that there were no clothes on the dead body. A wooden stick was pushed in the vagina and she was bleeding. Several other injuries were also noticed on her body by the relatives, including first informant PW-1 Mohanbhai. He, therefore, went to Chikhli Police Station and lodged an FIR. Offence was registered and case was investigated.

2.1 There was no direct evidence but circumstantial evidence were sufficiently found during the investigation and, therefore, police filed charge sheet against the appellant in the Court of JMFC, Chikhli, who, in turn, committed the case to the Court of Sessions and Sessions Case no.30 of 2004 came to be registered.

Charge was framed against the appellant at Exh.2 for the offence punishable under Sections 376, 302 and 201 of IPC. The accused-appellant pleaded not guilty to the charge and claimed to be tried. After the trial, his further statement u/s 313 of the Criminal Procedure Code was recorded wherein he stated that he was falsely implicated because his impression in the town was not good.

3.1 The trial Court, considering the evidence led by the prosecution, came to the conclusion that the circumstantial evidence adduced by the prosecution completed the chain of circumstances linking the accused with the offence and recorded his conviction and awarded sentence, as stated in the earlier part of this judgment.

We have heard learned advocate Mr Mrudul Barot for the appellant in Criminal Appeal No.219 of 2005. We have also heard learned APP Mr Pandya for the State.

4.1 The State has also preferred an appeal against the convict for enhancement of sentence from imprisonment for life to capital punishment, being Criminal Appeal No.394 of 2005. The convict is also represented by learned advocate Mr Majmudar in the enhancement appeal. We have heard him also.

It is contended on behalf of the appellant-convict that the conviction is ill-founded. It is recorded taking a moral view of the matter, whereas the evidence is not sufficient to establish nexus between the accused and the offence. Only three circumstances are brought on record by the prosecution, namely, that the deceased was seen last in company of the appellant; that the appellant had made extra-judicial confession before the treating doctor and that the FSL report indicates presence of blood in the vaginal swab. These circumstances cannot be considered good enough to link the accused-appellant with the crime, is the argument of the learned advocates for the convict. It is contended that a miscreant would not ordinarily make a confessional statement before an unknown person; that such confessions are made only when the miscreant has a faith in the person before whom such confessional statement was made; and that the said person before whom confession is made would be able to help him out. That is not the situation here and, therefore, the trial Court committed an error in accepting this as a circumstance against the accused-appellant. It is also contended that the medical report would indicate that the appellant had no injury on his person. Therefore, find of blood in the vaginal swab of the victim does not link the appellant with the act. The chain was, therefore, not completely established by the prosecution, which aspect has been overlooked by the trial Court and conviction is recorded. It is, therefore, contended that the appeal by the convict may be allowed and the appeal by the State may be dismissed.

Learned APP Mr Pandya submitted that the deceased was seen last in the company of the appellant by a child witness Tejas, whose deposition comes in a very natural way and inspires confidence. The extra-judicial confession is made before the doctor and the doctor has made an entry in the contemporaneous record, namely, the case papers. The doctor is an independent witness and has no personal interest. Therefore, this is a strong circumstance against the appellant-convict. It was also contended that the blood group of the convict and that of the deceased were same and, therefore, find of blood in the vaginal swab in absence of any injury on penis of the accused would not affect the prosecution case in any manner because the victim was a minor and her hymen was torn in the act. Mr Pandya, therefore, submitted that the trial Court has not committed any error in convicting the appellant.

We have considered the rival submissions and have examined the record and proceedings in that perspective.

There are three important circumstances, which link the convict with the offence, namely, (i) that he was last seen together in company of the deceased in proximity of time and place of incident, (ii) that the convict made an extra-judicial confession before Dr. Krishna Murari and the doctor reduced the same into writing in the medical case papers and (iii) that the FSL report and the serological report would link the convict with the crime.

PW-7 Tejaskumar Amrutbhai Patel (Exh.21) is the witness who proves the deceased being in company of the convict soon before the incident. Tejas is a minor boy. He knew the deceased victim and he knew the convict. According to him, while he was studying in Std. 6 he had gone to deposit milk on bicycle after returning from school. While he was returning after depositing milk, he saw deceased victim going ahead of him near culvert. At that time, the convict also came there and removed clothes of the victim. Then the convict removed his trousers and then turned to the witness and asked him to go away or else he would be done to death. The witness says that, therefore, he went home. He states that the place where he saw the convict removing clothes of the victim as well as his own clothes is very near to the place from where the dead body was found. He stated that the convict physically lifted the victim and took her away towards the place where from the dead body was found and the victim was crying for help. The witness has been put to cross-examination at length, but nothing emerges from the cross-examination, which would render his deposition doubtful. The witness was young enough to be scared or being intimidated and old enough to see, register, remember and reiterate what he had seen on the day of incident. The scrutiny of his deposition would only lead to a conclusion that the witness is a truthful witness and states what he is aware about and what he has seen.

This evidence, if considered in conjunction with the evidence of the first informant, the father of the victim, it is clear that after the victim returned from school at 5-00 PM she was sent to purchase something from a shop. This boy also says that after returning from school while he was returning after depositing milk, he saw the victim girl being physically lifted towards the place from where the dead body was found and being denuded by the convict. The timings coincide and tally. On the victim not returning home, a search was commenced and within hours of her leaving with the appellant, her dead body was traced in a condition described by witness Tejas, namely, clothless.

We are, therefore, of the view that the evidence regarding the deceased being in company of the convict in proximity of time and place of incident is duly established.

During the course of investigation, the convict was arrested and taken to Dr Krishna Murari Ramchandra Prasad, Medical Officer, CHC, Chikhli and was handed over to him. The doctor upon receiving the convict as a patient, recorded history in presence of the CHC peon. It is clear from the evidence of the doctor that no policeman was present around when the history was recorded or medical examination was carried out. The history recorded would confirm what was stated by witness Tejas. The dead body of the victim was sent for post-mortem and Dr Harshadbhai Babarbhai Patel (Exh.30) performed the post-mortem. The tongue was blue and pressed between teeth. P.M. lividity was present. There were injuries on genitals of the victims and other parts of the body. The cause of death was strangulation. The lungs were found to be congested. There was fracture of hyoid bone etc..

The history, as we have stated earlier, given by the convict to the doctor would clearly implicate him. Exh.39, the medical certificate, in respect of the convict, would indicate scratch marks on neck, dark red in colour on the neck above thyroid. Another scratch mark on the right clavicle, one more scratch mark on right hand little finger and at the base of right thumb, whereas abrasions on sternoclavicular joint. There were abrasions on right knee joint, left knee near patella, right sterno-clavicular joint etc..

The FSL report, particularly the serological report, would indicate that the blood group of the convict and that of the deceased were the same. It was contended that the vaginal swab indicated presence of blood of the group of the accused, whereas there were no marks of injury on person of the accused, including genitals and, therefore, reliance could not have been placed on this evidence by the trial Court. However, we find that the blood group of both the victim and the convict is the same. There were injuries on genitals of the victim. The hymen was ruptured and there was redness in the vagina. The doctor has opined that forceful intercourse cannot be ruled out. The presence of blood in the private parts of the victim and injuries on other parts of the body is suggestive of forced kissing, biting etc. which would certainly involve the convict with the offence.

In our view, therefore, all the three circumstances are duly and properly established by the prosecution to link the appellant with the offence and the trial Court was, therefore, justified in recording conviction. The appeal against conviction, therefore, does not merit acceptance.

So far as the State appeal for enhancement is concerned, the State has pressed this appeal and has sought capital punishment to be imposed on the convict. Learned APP Mr Pandya submitted that it is a gruesome murder where, after having raped ruthlessly, the victim has been done to death.

There cannot be any two opinions about the fact that the minor girl has been ravished and done to death in a very gruesome manner but it has also to be recorded that we have no material to come to a conclusion that this is a rarest of rare case where capital punishment would be the only punishment which would protect the society against a menace and there is no hope for any change of heart or conduct of the convict. Keeping in mind the decision of the Apex Court in Mulla and Another Vs. State of Uttar Pradesh, we find that though the convict had acted in a very cruel manner, it is difficult to come to a conclusion that this is a rarest of rare case where accused will have to be eliminated from the earth to relieve the earth of such menaces. We are, therefore, of the view that there is no merit in the appeal of the State either and it must fail.

As a result of the foregoing discussion, both the appeals do not merit acceptance and are dismissed. The judgment and order of conviction and sentence dated 31.12.2004 passed by the Sessions Court, Navsari in Sessions Case No.30 of 2004 stands confirmed.