Manojbhai @ Munno Jaysukhbhai Sitapara vs State of Gujarat

K.J. Thaker, J.—The original accused - appellant, herein, who lured away a minor, aged about four years, and subjected her to cruelty, is before us by way of this appeal, whereby, he has challenged the judgment and order of the learned Additional Sessions Judge, 2nd Fast Track Court, Amreli, rendered in Sessions Case No. 5 of 2007, Dated: 19.12.2007, convicting the appellant for the offence punishable under Sections 366 and 376(F) of the Indian Penal Code and sentencing him to undergo imprisonment for life. The brief facts of the case of the prosecution as set out before the trial Court reads as under;

In the complaint given by him the complainant, who happens to be the father of survivor, stated that on 12.07.2006, while he and his mother were sleeping in the house, the appellant came to his house with his daughter, the survivor, in the early morning at about 04:30 a.m. and told the complainant that while he was passing through the street, he found that the survivor had fallen down, and hence, he had given her water. The appellant, then, went away. However, when the complainant inquired from the survivor, she narrated the entire incident and the complainant also found the blood oozing out from her private part. The complainant, then, took the survivor to the hospital and lodge the complaint. On registration of the offence, the police authorities carried out the investigation and since, prima facie evidences were found against the appellant, a charge-sheet was lying against him. At the time of trial, since, the accused did not plead guilty and claimed to be tried, he was tried for the alleged offence.

To bring home the charges leveled against the appellant the prosecution examined the following witnesses;

Over and above the aforesaid oral evidences, the prosecution also placed reliance on the following documentary evidences;

At the end of the trial, the statement of the appellant u/s 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal.

Heard learned Counsel for the appellant Mr. Barot, and Ms. Shah, learned APP, on behalf of the respondent - State and perused the material on record with their assistance.

Before proceeding with the matter, here, it would be relevant to refer to the provisions of Section 376 of the Indian Penal Code, which reads as under;

Punishment for rape:-

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(1) Whoever:-

(a) Being a police officer commits rape--

(i) Within the limits of the police station to which he is appointed; or

(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or

(b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or

(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman''s or children''s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) Commits rape on a woman knowing her to be pregnant; or

(f) Commits rape when she is under twelve years of age; or

(g) Commits gang rape,

Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

In order to appreciate the facts of the case put forward by the prosecution before the trial Court, here, it would be relevant to refer to the evidence of the survivor, P.W.-2. Here, it would not be out of place to mention that at the time of recording of her evidence, the survivor � P.W.-2 was barely of five years of age, and hence, her evidence came to be recorded in the form of question and answer. In answer to the question that who had taken her away, the survivor did not verbally say anything, but, while clinging to her father, pointed her finger towards the appellant, herein, who was at that point of time standing in the box meant for the accused. Then, in answer to the question as to what was the name of the said person standing in the box meant for the accused, the survivor stated that ''Munno''. When, the survivor was further asked as to what Munna had done with her, the survivor narrated the entire incident in detail. The survivor also identified the T-shirt put on by hear at the time of the offence. In her cross-examination, the survivor was asked that is it true that Munna had come to drop her at her home, since, she had fell down in gutter? The survivor answered the said question in positive with the nod of her head. Thus, the answer given by the survivor - P.W.-2 to the aforesaid question, leaves no manner of doubt about the presence of the appellant at the place of offence, at the relevant point of time and his involvement, therein. The evidence of the survivor - P.W.-2 remains unshaken. The defence failed to bring out anything from the same which would help their case. It is pertinent to note that at the time of recording his statement u/s 313 of the Cr.P.C., the appellant was asked specific questions about his involvement in the alleged offence, which were answered in negative by the appellant in mechanical manner. Even, when the appellant was asked as to whether he wanted to state anything further, the appellant stated that the father of the survivor owed an amount of Rs. 20,000/- to the father of the appellant and with a view to avoid the said liability, he was falsely involved in the alleged offence. However, the appellant did not lead any evidence to substantiate his say. Had the explanation offered by the appellant for his involvement in the alleged offence been true, he could have examined his father as a defence witness, which is not done by him. Hence, the trial Court rightly did not believe the said explanation given by the appellant.

The evidence of P.W.-2, the survivor, gets support from the evidence of P.W.-16, who had carried out the medical examination of the survivor. In her examination-in-chief, P.W.-16 stated that on 13.07.2006, while she was present on her duty at Civil Hospital, Amreli, the survivor - P.W.-2 was brought before her for carrying out her medical examination. P.W.-16, further, stated that she was given the history of commission of rape by one Munna Jaysukh, i.e. the present appellant, by the survivor and her relative, i.e. her grandmother. P.W.-16 had found about four external injuries and the following internal injuries on the body of the survivor - P.W.-2;

(1) There was abrasion on the labia majora on the right side; and

(2) The hymen was ruptured.

P.W.-16 had collected the samples of nails, hair, vaginal swab, blood and urine sample of P.W.-2 for the purpose of analysis. In that view of the matter, here, it would be relevant to refer to the report of FSL (Exhibit-46). A perusal of Exhibit-46 reveals that the presence of human blood and semen was found on (1) Specimen-A, i.e. the cream colour cotton underwear with saffron colour strip, which was that of the survivor - P.W.-2, (2) Specimen - F1 and F2, i.e. vaginal smear and vaginal swab of the survivor - P.W.2, whereas, the presence of only semen was found on (1) Specimen - B, a maroon colour cotton T-shirt with colorful designs, which was that of the survivor - P.W.-2, (2) Specimen - J, i.e. a grey color synthetic trouser, which is stated to be that of the appellant and (3) Specimen - M, a pubic hair of the appellant. As per the Serological Report of the FSL the presence of semen found on the specimen A, B, J and M were of group ''B'', which is the blood group of that of the appellant. This piece of evidence leaves no manner of doubt in our mind about the involvement of the appellant in the alleged offence. In view of the above discussion, the decision of the Apex Court in the case of Niranjan Panja Vs. State of West Bengal, relied on by the learned Counsel for the appellant, Mr. Barot, will not apply to the facts of the case on hand.

In view of the above discussion, we are of the opinion that the learned Judge committed no error in passing the impugned judgment and order, and hence, the present appeal deserves to be dismissed. In the result, the appeal fails and is DISMISSED. The judgment and order of the trial Court, Dated: 19.12.2007, stands confirmed. However, keeping in mind the age of the appellant at the time of the commission of the offence, it is observed that it shall be open to the State authorities to consider the case of the appellant for remission, as admissible to him under the Code of Criminal Procedure. A copy of this order be sent to the concerned jail authority, immediately.