Ramanbhai Nanabhai Rathod vs State Of Gujarat

V.P. Patel, J

The appellant original â€" accused has filed present Criminal Appeal under Section 374(2) of the Criminal Procedure Code (for short “the

Codeâ€) being aggrieved and dissatisfied with the judgment and order dated 18.06.2004 passed by the learned Additional Sessions Judge, Kheda camp

at Anand (for short “the Trial Courtâ€​) passed in Sessions Case No. 195 of 1997.

Heard learned advocate Mr. Rajesh Shah for the appellant and learned APP Ms. Jirga Jhaveri, for the respondent -State.

Order under challenge:

3.1 The appellant has challenged judgment and order dated 18.06.2004 passed by the learned Trial Court in Sessions Case No. 195 of 1997, wherein,

the appellant was convicted under Section 235(2) of the Code for the offence punishable under Section 376 of the IPC. The learned Trial Court has

imposed 5 years rigorous imprisonment and Rs. 20,000/- fine and in default of fine, the accused has to undergo 1 year simple imprisonment. Learned

Trial Court has acquitted the accused for the offence punishable under Section 447 of the IPC. The learned Trial Court has awarded compensation of

Rs. 15,000/- to the complainant-victim from the fine. The learned Trial Court has given set off against the period of sentence of imprisonment already

undergone during the trial by the accused.

Arguments for the Appellant-Accused:

4.1 Learned advocate Mr. Shah for the appellant argued that judgment and order passed by the learned Trial Court is erroneous on the facts and law

that the judgment passed by the learned Trial Court is not tenable in the eye of law. That the deposition of the victim is not reliable and not inspire

confidence to held the conviction. That the medical evidence is not supported the version of the victim. That delay is caused in filing the complaint

which is not explained. All the Panch witnesses of the Panchnama are turned hostile as they have not supported the case of the prosecution. That the

no independent witness was examined. That the complaint was recorded by the IO himself and the investigation was carried out by himself. The

charge sheet is also filed by the Investigating Officer, which caused prejudice to the appellant accused. It is further submitted that the incident took

place 23 years ago, at that time age of the accused was 47 years. Now he become 70 years of age.

4.2 It is further submitted that the compromise took place between the present appellant accused and the complainant. It is requested that the appeal

be allowed and impugned judgment be set aside.

Argument for prosecution:

Learned APP Ms. Jhaveri, submitted that judgment and order passed by the learned Trial Court is correct in eye of law and there is no requirement

to disturb the conviction held by the learned Trial Court. That the victim has supported the case of the prosecution. There is no need of corroboration

to convict the accused if the deposition of the victim inspire confidence. It is further argued that the delay is not fatal in this type of case and it is

explain by the victim. That no defence witness has been examined by the defence as stated in the deposition of the IO. That the FSL report has

supported the version of the prosecution. The husband of the victim also supported the case of the prosecution and the same fact is relevant under

Section 8 illustration (j) of the Evidence Act. It is further argued that panchnama of the scene of offence indicates that the incident took place. She

has relied upon the judgment reported in 2009(16) SCC 69 in case of Rajinder @ Raju vs State Of H.P and 2013 (14) SCC 481 Mohd. Iqbal v. State

of Jharkhand, wherein the Hon’ble Supreme Court has held that the sole deposition of the victim is enough for conviction. It is further argued that

though the recording of the complaint by the IO and investigation was carried out by the IO is not to be considered because the defence has not

shown any prejudice for this purpose. It is requested to dismiss the appeal of the accused.

Facts of the case:

6.1 The original complainant i.e. victim has filed a complaint on 06.05.1996 before the Umreth Police Station against the present appellant-accused.

The said complaint was registered as criminal case no. I-100 of 1996 for the offence punishable under Sections 447, 376 of the IPC. After

investigation was carried out by the IO, the charge sheet was filed against the present accused appellant before the JMFC Court, Umreth, which was

registered as Criminal Case No. 776 of 1996. The case was committed by the learned JMFC Umreth to the Sessions Court under Section 209 of the

Code, same is registered as Sessions Case No. 195 of 1997.

6.2 As per the complaint registered, it is stated that complainant-victim has gone to her farm for getting some woods. When she was present in her

farm at that time accused came from back side and closed her mouth by his hands and she was fallen down in the farm. It is further stated that

accused has committed intercourse without her consent. She has not shouted as she felt danger for her life. It is further stated that the accused has

threatened not to tell anybody. It is further stated that after she reached to her house she narrated this incident to her husband. The husband was

angry and gave two slaps to her. It is further stated that thereafter complaint was registered at Umreth Police Station.

6.3 The charge was framed at Exh. No. 04 on 25.03.2004 by the learned Trial Court. The prosecution has examined 07 witnesses and produced 06

documentary evidence. Further statement was recorded under Section 313 of the Code. The arguments for the prosecution and the defence was

heard. Thereafter, learned Trial Court has appreciated oral as well as documentary evidence on record. The impugned judgment and order is passed

and convicted the accused.

Merits of the Case:

The prosecution has examined PW 01 the victim vide Exh. No. 09. On perusing the deposition, it is stated that the accused came from the backside

and closed her mouth with his hand and dragged her in the crop of millet. It is stated that she has shouted but nobody was there therefore, nobody has

heard. After dragging her, she was fallen down and thereafter, the accused caught her by one hand and by the other hand removed her clothes and

made inter-course. The complaint at Exh. No. 10, on perusing the complaint wherein it is stated that she has not shouted because of danger to her life.

It is not stated as regards to that she was dragged in the millet crop. The version stated in the FIR/complaint and the deposition is somewhat different,

therefore, the corroboration is required. The prosecution has not established the scene of offence of panchnama as regards to the she was dragged up

to certain extent.

It is argued that the victim was medically examined by the Doctor i.e. PW No. 04, Ms. Jordan Mansi at Exh. No. 16, wherein she has stated in her

deposition that there was no staff and no sufficient instrument to examine elaborately the victim in her dispensary. It is also stated that she has

informed to the IO to send victim for medial examination to the other hospital. The victim has got a certificate, which at Exh. No. 18, wherein facts

are stated as under:

“She is married. She is habitual of inter course. She is no any injury in all over body. She is normal.â€​

Evidence of victim is not supported by the medical evidence. No injury caused to the victim though she was dragged up to certain extent. Thus, the

deposition of victim is not inspire confidence.

The letter at Exh. 20 written by the Doctor to the Investigating Officer that accused Ramanbhai Naranbhai Rathod was sent for medical

examination but no sufficient instruments are available there, so she may be sent to other place for detailed medical examination.

First and foremost the argument is advanced that the complaint was recorded by the IO, who has conducted the whole investigation and filed a

charge sheet before the Court. On perusing the deposition PW No. 7 Mr. Arvind Bababhai Joshi at Exh. No. 27, it is stated that 06.05.1996, he was

serving as Police Sub Inspector at Umreth, Police Station that the complainant was came to the Police Station and she has disclosed the facts of the

complaint.

He has taken out the facts of the complaint and registered the offence punishable under Sections 447, 376 of the IPC.It is further stated that he

has investigated the crime. That the victim was medically examined; that he has prepared a panchnama of the scene of the incident.

That he has prepared the other panchnama. That he has recorded the statement of relevant witnesses, he has arrested the accused, sent muddamal to

the FSL. He has filed the charge sheet.

Learned APP has submitted that no prejudice shown against the IO by the defence. But the arguments is not tenable in view of the reported

judgment of the Hon’ble Supreme Court in case of 018(17) SCC 627 in case of Mohanlal vs. State of Punjab.

This Court has came across judgment reported in 2018(17) SCC 627 in case of Mohanlal vs. State of Punjab, the Hon’ble Supreme Court has

held as under:

“Para 13: A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in

a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse

burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances

that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in the absence

of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger

vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty

formality and a farce. Such an interpretation therefore naturally has to be avoided.

Para 14: That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on

part of the accused was noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254 as follows:

The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the

part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the

investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule

out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer is not

merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.

Para 29: The view taken by the Kerala High Court in Kader does to (sic not) meet our approval. It tantamounts to holding that the FIR was a gospel

truth, making investigation an ampty formality if not a farce. The right of the accused to a fair investigation and fair trial guaranteed under Article 21

of the Constitution will stand negated in that event, with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS Act

and similar laws carrying a reverse burden of proof. An investigation is a systemic collection of facts for the purpose of describing what occurred and

explaining why it occurred. The word systemic suggests that it is more than a whimsical process. An investigator will collect the facts relating to the

incident under investigation. The fact is a mere information and is not synonymous with the truth. Kader22 is, therefore, overruled. We approve the

view taken in Naushad21.

Para 30: In view of the conflicting opinions expressed by different two-Judge Benches of this Court, the importance of a fair investigation from the

point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in

this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible

abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has

to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the

investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined

conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.â€​

Learned APP has cited two citations which are not helpful to the prosecution to establish its case beyond reasonable doubt considering the right of

the accused of fair investigation and fair trial guaranteed by Article 21 of the Constitution of India. It is admitted fact that the complaint was recorded

by the Investigating Officer, he has conducted all the investigation including preparation of panchnama of scene of offence, recovery of muddamal and

arrest panchnama of the accused. Recording of the statement of all the witnesses and filing of the charge sheet. As per the ratio laid down by the

Hon’ble Supreme Court in the

above referred case, it is held that fair investigation necessary to postulate with the informant and investigation imposed not to the same person.

Justice must not only be done but must appear to be done. All bias or predetermined conclusion has to be excluded.

In view of the above discussion, this Court is of the view that the deposition of victim is not shown trustworthy and reliable therefore, collaboration

is required. But prosecution has failed to prove the collaboration. In view of the evidence discussed hereinabove, the prosecution has failed to establish

that the appellant-accused has committed rape. Thus, the prosecution has not established the ingredients of offence punishable under Sections 376 of

the Indian Penal Code.

Considering the contents of memo of appeal, arguments advance by the learned advocate for the appellant and the learned APP, oral as well as

documentary evidence discussed as above, facts and circumstances of the case, this Court is of the view that the prosecution has failed to prove the

charges levelled against the accused. Thus, appeal is required to allowed and appellant accused is required to be acquitted. Hence, the following order.

::Final order::

(i) for the reasons recorded hereinabove, the present appeal is allowed.\

(ii) The order dated 18.06.2004 passed by the learned Additional Sessions Judge, Kheda camp at Anand passed in Sessions Case No. 195 of 1997,

convicting the appellant accused for the offence punishable under Section 376 of the IPC is hereby quashed and set aside.

(iii) Bail and bond stands discharged.

(iv) The Registry is directed to send copy of the judgment to the concerned Court for certification under Section 388 of the Code.

(v) R & P be sent back to the learned Trial Court at the earliest.