State of Gujarat vs Vikramji Ajuji Thakor

C.K. Thakker, J.—This appeal is filed by the State of Gujarat against an order of acquittal recorded by the Additional Sessions Judge,

Ahmedabad (Rural), Mirzapur on November 15,1994 in Sessions Case No. 102 of 1989. By the impugned order, the trial Court acquitted the

respondent-accused for offence punishable u/s 376 of the Indian Penal Code (I.P.C.).

The case of the prosecution was that on 8th May 1989 between 5-30 and 6-00 p.m., a minor girl Harsha aged about 4 years, daughter of

complainant Harshadkumar alias Hasmukhbhai Dahyabhai had gone in Vadi of Sitabhai to ease herself. She came back crying. On being asked,

she reported that one Vikala, i.e., Vikram Ajuji Thakor (accused herein) had committed rape on her. She was bleeding. Stool had passed and her

bush-shirt was stained with blood. Blood was also oozing from her private part. Shushilaben, mother of Harsha took Harsha to Pethapur Police

Station. A complaint was filed by Harshadkumar father of Harsha. Investigation started. The accused was arrested and he was charged for

committing an offence punishable u/s 376 I.P.C. The defence of the accused was of total denial.

After appreciating the evidence on record, the trial Court held that it was not proved beyond reasonable doubt that the respondent-accused had

committed offence with which he was charged and accordingly he acquitted accused.

Against that order of acquittal, the State of Gujarat has approached this Court by filing the present appeal.

On July 10,1991, the matter was placed for admission and the Division Bench Coram : N.J. Pandya & S.M. Soni. JJ. granted leave, admitted

appeal and issued non-bailable warrant. Today, the matter is called out for final hearing.

We have heard Mr. D.N. Patel, Assistant Public Prosecutor for the State and Mr. K.G. Sheth Advocate (appointed) for the respondent.

Mr. Patel learned A.P.P. submitted that the order of acquittal recorded by the trial Court is contrary to law and against the evidence on record.

According to him from the evidence as a whole and in the light of deposition of prosecutrix Harsha, it is clearly established that the accused

committed rape on Harsha. Mr. Patel also submitted that the evidence of Harsha gets support from the evidence of her father Harshadbhai, mother

Sushilaben and from the deposition of Prahladbhai and Uriben. No doubt, Prahladbhai as well as Uriben did not fully support the case of the

prosecution and they were treated as ""hostile"" witnesses, but from their evidence, substantial part of the prosecution story was established. He

further submitted that the case of the prosecution gets corroboration from medical evidence, panchnamas and report of Chemical Analyser.

According to Mr. Patel, the reasons of acquittal recorded by the trial Court for acquitting the accused are improper, illegal and extraneous. The

approach adopted by the trial Court is contrary to law and against well established principles of administration of criminal justice. He, therefore,

submitted that the order of acquittal requires to be reversed by holding the accused guilty.

Mr. Sheth learned Advocate for the respondent, on the other hand, supported the order of acquittal passed by the trial Court. Over and above

the reasons recorded by the Court, he contended that a false case was filed against the accused because of enmity with his maternal uncle. Mr.

Sheth also submitted that from the evidence, it is clear that initially it was Sushilaben who had gone to police station and had narrated the incident

before the police authorities. Hence, Exh. 12, said to have been lodged by Harshadbhai cannot be treated as F.I.R. A grievance was also made by

Mr. Sheth that questions put to accused u/s 313 of the Code of Criminal Procedure, 1973, were not clear and prejudice was caused to him.

According to Mr. Sheth, trial by Additional Sessions Judge was contrary to law in view the fact that the accused had not completed age of 16

years. Finally, it was submitted that no incident in question had taken place as no injury was found on private part of the accused. Had rape taken

place, since prosecutrix was only of 4 years of age, there would have been visible injury or abrasion on the private part of the accused as also

presence of semen on his pant. On all these grounds, according to Mr. Sheth, when a finding of acquittal is recorded, it cannot be said that the said

finding is unreasonable. There are no ""compelling reasons"" to reverse order of acquittal and convict the accused.

Having given anxious consideration to the facts and circumstances of the case and evidence on record, we are satisfied that an order of acquittal

recorded by the trial Court is contrary to law which requires to be interfered by holding the accused guilty for an offence with which he was

charged.

P.W. 2 Harshadbhai Dahyabhai is father of prosecutrix Harsha. He has stated in his evidence that he knows accused as accused is his

neighbour. On 8th May 1989 between 5-30 and 6-00 p.m. he was in his house with his wife. There is a Vadi nearby his house. His daughter

Harsha had gone to Vadi to ease herself. After about 20 to 25 minutes, she returned crying. She was profusely bleeding. Blood was oozing from

her private part. On being asked, Harsha replied that Vikala took her to Vadi of Sitabhai and committed improper act. She also stated that

accused got entered his private part in her private part. The accused also slapped her. From private part of Harsha blood was oozing.

Immediately, the complainant sent his wife to Bababhai, maternal uncle of accused and complained against the act of the accused. Sushilaben then

went to police station. The complainant stayed at home. After some time Uriben came there who had gone to pass urine. She stated to the

complainant that the door of Khander was found closed from inside. Bhupatbhai saw from the gap inside the door and he found that one girl was

crying inside and she was Harsha. After hearing the version of Uriben, complainant went to police station and lodged complaint (Exh. 12). He

produced bush-shirt of Harsha before the police. It was stained with blood and stool. Nothing useful to the accused was obtained from cross-

examination of this witness, except a bald allegation that it was not true that Uriben or Bhupatbhai had not met the complainant at all and that the

complainant was deposing falsely.

The above version of the complainant gets support from evidence of Sushilaben, wife of P.W. 2 and mother of Harsha. She virtually reiterated

what the complainant had stated in his evidence as to what had happened on 8th May 1989. She had stated that she had gone to police station first

and her husband came thereafter.

Then there is evidence of Prahladbhai and Uriben. Both of them did not fully support the case of the prosecution. P.W. 4 Prahladbhai

Nathabhai stated in his evidence that he was knowing complainant, his wife Sushilaben and their children. He was also knowing the accused. On

8th May 1989, he had gone to pass urine in Vadi of Sitabhai. There was a Khander in that Vadi. Harsha was playing there. When he was coming

back, the accused met him. The accused was going towards Khander. Uriben also met in the way as she was going to pass urine. He then went to

factory. There was some hubbub and after about an hour, he came to know that a girl was raped whose name was Harsha. He was permitted to

be contradicted with his police statement wherein he had stated that the accused had taken the prosecutrix with him in Khander and bolted the

door from inside. He had denied that he had seen from the gap of the door that it was the accused who had bolted the door from inside. Similar is

the deposition of Uriben Umarbhai P.W. 5. She knew the complainant, his wife and their children as well as the accused. On the day of incident,

she had gone to Vadi of Sitabhai because of the call of nature. There was a Khander and the door was closed from inside. She came back and

after about half an hour, she came to know about the incident in question. She was also allowed to be cross-examined by the prosecution in view

of her police statement and she denied to have stated that a child was crying from inside the room and the door was found closed. She also denied

that when the door was opened, the accused came from inside the room and ran away and Harsha came out crying. She took Harsha to her

father''s house and informed her father about the incident. She had denied having stated in her police statement that she had seen the accused

running away from the house and blood was oozing from the private part of Harsha and that she believed that only if the accused had committed

sexual intercourse with Harsha that blood would ooze.

In our opinion, though Prahladbhai and Uriben have not ""fully"" supported the case of the prosecution regarding actual incident of committing

rape by the accused, their evidence clearly supports prosecution and corroborates in material particulars to natural deposition of Harsha. From the

evidence of these two witnesses, a number of facts are clearly established. It is proved from their evidence that both of them were knowing the

complainant, his wife and Harsha. They were also knowing the accused. There was a Vadi of Sitabhai and a Khander. There was also a room

which could be bolted from inside. According to Prahladbhai, he saw the accused going towards that Khander. Uriben had met him. Thus, from

the evidence of Prahladbhai, identity as well as presence of the accused at the place of offence was clearly established. It is settled law that

evidence of a ""hostile"" witness cannot be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as

a result of cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his

testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the

evidence of the witness, as a whole, with due care and caution accept, in the light of the other evidence on the record that part of the testimony

which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the

witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto. vide Sat Paul Vs. Delhi

Administration, and Bhagwan Singh Vs. The State of Haryana, .

There is, however direct evidence on record from which it is established that the accused had committed the act in question. That evidence is

of Harsha, P.W. 12, prosecutrix herself. She was aged about four years at the time of incident. Before administering oath, the trial Court was right

in ascertaining as to whether she was in a position to understand and give evidence on oath. After putting certain questions, a note was put by the

trial Court that the witness had not reached the stage of proper understanding and was not able to understand seriousness of oath. She was,

therefore, not administered oath. When she was asked in which standard she was studying, she replied that she was studying in first standard. She

also stated that she used to go to Vadi to ease herself and used to clean herself after easing. In her evidence, she stated that she had gone to ease

herself and was cleaning her private part. Then pointing out the accused, she stated that he asked her as to whether she would eat ice but she

refused. That boy took her in the Vadi. His name was Vikala. She was compelled to sleep on sand. He pressed her neck. He also slapped. Then

by pointing her private part, she stated that the accused committed rape on her. She also stated that blood was oozing. She suffered pain. She had

worn only bush-shirt and not any other cloth. From Vadi, she had gone to her home walking. Her parents were there. She had reported the

incident to her father that it was Vikala who had committed an improper act. Her mother had taken her to police station. Vikala (the accused) was

staying near her house. In cross-examination, she sticked (sic.) to what she stated in her examination-in-chief. She had further stated that when the

accused took her away, she had shouted ""Mummi, Mummi"". When she came weeping, other persons came to know about the incident. She

denied that she fell down in Vadi. A suggestion was made to her that as she had fallen down, she sustained injuries on her face as well as buttocks,

but she denied it. A specific question was put to her that as she fell down, blood oozed from her private part. But she specifically and emphatically

denied it. A negative question was also put to her that it was not Vikala who had taken her to Vadi and she replied stating categorically that it was

Vikala who had taken her. It is really surprising that after the cross-examination by the accused was over, the Court put some questions and

particularly a question whether her mother had told her to give name of Vikala which she replied in the affirmative.

Mr. Patel, in our opinion, is right in submitting that the deposition of the prosecutrix Harsha is natural and believable. She is a straight forward

innocent girl of tender age of four years only and she had no axe to grind against the accused. From her evidence, as well as evidence of other

witnesses, including ""hostile"" witnesses, it is clear that Harsha had gone to Khander. It is also proved from the evidence of Harsha and Prahladbhai

that accused had also gone in that direction. Presence of the accused at the place of offence is thus, in our opinion, amply established. The

prosecutrix by pointing out the accused stated that it was the accused who had asked her as to whether she would take ice but she refused. She

was then taken inside the room and accused bolted the room from inside. The accused was a neighbour of the prosecutrix. Therefore, obviously

there was no question of mistaken identity on her part. Initially, the accused attempted to induce the prosecutrix by asking her whether she was

interested in taking ice, but on refusal by her, he physically lifted a tender aged girl of four years to satisfy his lust, took her to the room, bolted it

from inside and committed rape on her. In our opinion, the criticism of the trial Court that the prosecutrix was not of able understanding cannot be

accepted. We are impressed by the deposition of prosecutrix and the natural way in which she had narrated the incident. We are convinced that it

was the accused and accused alone, who had committed rape on her. Her reply to a question by the Court about giving the name of accused must

be understood and treated as giving the name of real culprit before the Court and not an act of tutoring the prosecutrix to falsely involve the

accused in the case.

There is other evidence on record which corroborates the evidence of prosecutrix Harsha. P.W. 7, Dr. Jayesh Amaratlal Patel stated in his

evidence that on 8th May 1989, he was serving as Medical Officer in Civil Hospital, Gandhinagar. A girl, named Harsha on whom rape was

alleged to have been committed, was brought for medical examination with police yadi from Pethapur Police Station and on physical examination

external injuries were found which were three in number. They were as under:

External injuries:

(1) Bruise mark just below right eye about 3 cm. x 0.5 cm. size;

(2) Abrasion on just above right buttock region about 0.5 cm x 0.5 cm. size - three in number;

(3) Blood stained of thighs-upper and medial aspect blood staining of external vulva

He also stated that the girl was conscious and her bush-shirt was stained with stool. She was unable to walk properly by keeping two legs straight

and that she was walking ""by keeping both the lower limbs widely separated"", (emphasis supplied). He further deposed that the girl was examined

under the supervision of Dr. Uriben Oza, expert in Gynaecology Department and both of them found that hymen of Harsha was ruptured.

Tenderness was present and blood was oozing. In view of physical condition of prosecutrix, he opined that if a giral aged about four years was

raped, hymen could be ruptured. Similarly, injury on face of Harsha was possible if slap was given to her. He stated that if blood oozed from the

private part of the victim, stains of blood could be present on legs and thighs of the victim. Blood stains may also appear on pant of a male person

if sexual intercourse was committed wearing pant. During cross-examination, Dr. Patel admitted that there was absence of spermatozoa on the

vaginal smear. Because of that, according to him, it could not be positively said that rape was committed. He also admitted that if the age of the girl

was three or four years and grown up male committed sexual intercourse, there could be abrasion on the top of the private part of the male organ.

Finally, he admitted that injury on buttock and eye could be possible by fall. Relying on the above part of cross-examination, it was strenuously

argued by Mr. Sheth, which weighed with the trial Court that it was not established beyond reasonable doubt that the accused committed rape on

Harsha. The trial Court, according to Mr. Sheth, rightly took into consideration the fact that neither semen was present on the pant of the accused,

nor any injury was found on the male organ. Now, from the report of Chemical Analyser it is clearly established that on bush-shirt of the victim

human blood of ""B"" origin was found which was also found from the pant of the accused. This circumstance goes a long way against the accused.

No doubt, semen was not found on pubic hair or pant of the accused. This, circumstances, however, does not assist the accused since the incident

took place on May 8, 1989 and the accused was medically examined on May 9, 1989, i.e., on the next day. Moreover, as seen above, human

blood of ""B"" group of the victim was found on bush-shirt of Harsha as also on the pant of the accused. Mr. Sheth could not point out from the

evidence that any injury was caused to the accused which resulted into oozing of blood of the accused and presence of human blood of ""B"" origin

on his pant which was of prosecutrix Harsha. From arrest panchnama (Exh. 27) it appears that the accused had an abrasion on shoulder, but

neither from the panchnama nor from the deposition of panch witness Laxmanbhai, it is proved that blood was oozing. Absence of spermatozoa on

vaginal smear does not falsify the version of prosecutrix as regards the act of rape committed on her. An identical question arose before the

Hon''ble Supreme Court recently in Narayanamma (Kum) Vs. State of Karnataka and Others, . A similar contention was advanced before the

High Court of Karnataka and upholding the contention, the High Court acquitted the accused u/s 376 I.P.C. Reversing the decision of the High

Court, their Lordships of the Supreme Court held that absence of spermatozoa on vaginal smear did not falsify version of the prosecutrix of

committing rape on her and the High Court was not right in acquitting the accused. The Hon''ble Supreme Court reversed the order of acquittal

recorded by the High Court and restored the order of conviction passed by the trial Court. Thus, we are satisfied that the trial Court was not right

in ignoring presence of human blood of ""B"" group of the victim on pant of the accused and in giving too much importance to the fact that semen

was not found on his pant. We are also not impressed by the argument of Mr. Sheth that no visible injury was found on private part of the accused.

It may be recalled at this stage that the incident took place on 8th May 1989 at about 6-00 p.m. The accused was produced before the Medical

Officer Dr. K.S. Patel, on the next date on 9th May 1989. Thus, there was considerable time lag between the act and medical examination of the

accused by Dr. Patel. In these circumstances, if no injury was found on male organ of the accused, it cannot be said that the evidence of the

prosecutrix corroborated by medical evidence should not be held reliable or should be disbelieved.

Mr. Patel is also right in making a comment upon the approach of the trial Court. We need not repeat the question put by the Court to the

prosecutrix after cross-examination of the accused was over. The trial Court had also made comment on the evidence of P.W. 11 Lataben

Kanubhai Choksi, a social worker and office-bearer of Mahila Suraksha Samiti, Gujarat State, Gandhinagar. She stated in her evidence that when

she came to know about the fact that rape was committed on a girl of four years in her capacity as a social worker, she had gone to Pethapur

Police Station where the accused was kept as an undertrial prisoner and after taking him in confidence, she had discussed the matter with him and

the accused made extra-judicial confession before her. Since the accused was in custody as undertrial prisoner and investigation was going on, we

are not giving much importance to extra-judicial confession of the accused before Lataben. We are, however, constrained to observe that the trial

Court was not right in commenting that by recording statements of such witnesses time of the Court should not be wasted. Be that as it may, in our

opinion, looking to natural deposition of prosecutrix who was of tender age and studying in first standard and deposing in natural manner indicating

towards the accused that it was the accused who had tempted her to go with him and on denial by her she was physically lifted by the accused and

had committed an act of forcible sexual intercourse corroborated by medical evidence, we are satisfied that it was the accused who was

responsible for inhumane act in question and the trial Court has committed serious error in acquitting him for an offence punishable u/s 376. I.P.C.

We are equally not impressed by the argument of Mr. Sheth that Exh. 12 should not have been treated as F.I.R. since first version was given

by Sushilaben, mother of prosecutrix. It is clear that as soon as Sushilaben came to know about the fact of rape on Harsha, she rushed to the

police station and immediately Harshadbhai followed her, got F.I.R. recorded and it was duly signed by him. We are also not in a position to

uphold the argument of Mr. Sheth that the questions put to the accused u/s 313 of the Code of Criminal Procedure, 1973 were not clear, precise

and definite. Looking to the replies of the accused it is clear that the accused understood all the question put to him and denied that he had

committed any offence.

Regarding the age of the accused, in our opinion, the trial Court is right in holding that there was nothing on record to show that the accused

had not attained the age of 16 years. From medical evidence and on occification test, the age of the accused appeared to be 16 to 18 years. Dr.

Patel has deposed that the accused stated before him that he was married man. In these circumstances, it cannot be said that the trial Court has

committed error of law in conducting trial against the accused.

Regarding enmity, no particulars are produced by the accused. No concrete material was placed on record. In reply to the last question, the

accused stated:

From the above reply, it is clear that after the death of parents the accused was staying with his maternal uncle. According to him, there was some

quarrel with his maternal uncle and with a view to take revenge a false complaint was filed and that he was innocent. Apart from the fact that it is a

bald and vague allegation, it is also not stated as to who had enmity with the maternal uncle of the accused. Neither in the cross-examination of

Harshadbhai nor in cross-examination of Sushilaben any question was put as to whether Hasmukhbhai or Sushilaben had any enmity with maternal

uncle of the accused. Again, in the reply itself it is not the case of the accused that either Harshadbhai or Sushilaben had any enmity with the

maternal uncle of the accused.

We are also not prepared to believe that the prosecutrix would falsely implicate the accused in such a serious crime. In Balwant Singh and

Others Vs. State of Punjab, , it was contended by the accused that they were falsely involved due to enmity of the father of the prosecutrix. It was

also on record that some litigations were going on between the father of the prosecutrix and accused. Yet the Supreme Court rejected the

contention observing that ""it is absurd to suggest that because of the litigations or any enmity that he may have against the appellants, the father of

the prosecutrix would falsely involve his daughter in a case of rape by the appellants. Similar view was taken by the Supreme Court in Pramod

Mehto and Ors. v. State of Bihar AIR 1989 SC 1475.

Thus, the said allegation cannot carry the matter further in not believing the prosecutrix case of committing rape by the accused on Harsha.

We, thus, do not find any substance in any of the arguments advanced by Mr. Sheth and reject all the contentions.

For the aforesaid reasons, we are clearly of the opinion that the order of acquittal recorded by the trial Court is contrary to law against the

evidence on record and requires to be disturbed. We, therefore, allow the appeal and hold that it was the accused who had committed rape on

Harsha, a girl of four years and convict the respondent-accused for an offence punishable u/s 376 I.P.C. The office is directed to issue notice to

the accused for quantum of punishment returnable on December 12, 1994. Notice to be served through P.S.I. Pethapur, District Gandhinagar.

Date: 12-12-1994

As per an order of conviction and issuance of notice with regard to the proposed penalty, respondent-accused was sought to be intimated. But

a report has been received by the office of this Court mentioning that the respondent expired on October 7, 1992. The said report has been

submitted pursuant to a report made by P.S.I., Pethapur on October 2, 1994. A xerox copy of death certificate of respondent-Vikramji Ajuji is

also annexed with the communication. In view of the fact that the accused is dead, no question of imposition of punishment arises. Accordingly, the

appeal is disposed of.