IMPORTANT POINT
Rape – Conviction can never be based on FIR or statement of witnesses recorded during course of investigation – Investigating Officer cannot indirectly prove what witnesses have failed to prove.

JUDGMENT :

VIPUL M. PANCHOLI, J.

1. The appellant has filed the present appeals challenging the common Judgment and Final Order dated 28/29.11.2016 (hereinafter referred to as “the impugned order”) passed by the Gujarat High Court in Criminal Appeal No. 151 of 2003 (filed by the appellant-accused) and Criminal Appeal No. 501 of 2003 (filed by the State).

2. The High Court vide the impugned order dismissed the appeal preferred by the appellant-accused whereas the appeal preferred by the State for enhancement of the sentence awarded to the appellant-accused was allowed.

3. The factual matrix of the present case is as under:

i. It is a case of the prosecution that the appellant-accused was a doctor having medical practice at Himmatnagar, Gujarat. The informant, i.e. the victim, used to go to the appellant-accused for her treatment for pain in her stomach. On 08.05.2001, the victim, along with her husband, had gone to the appellant-accused at his dispensary in the morning hours. The victim was taken in the chamber by the appellant-accused for examination, wherein at first she was taken inside for screening and thereafter to an operation room, where after fondling with her in the guise of examination, the appellant-accused forcibly committed intercourse with her, which left scratches and bruises on her neck since she had resisted. The victim came out of the room and immediately narrated the incident to her husband weeping.

ii. On the basis of the aforesaid allegations, First Information Report (hereinafter referred to as “FIR”) came to be lodged against the appellant-accused. The Investigating Officer carried out the investigation and thereafter filed the charge-sheet against the appellant-accused. The case was committed to the Sessions Court. During the trial, the prosecution examined nine witnesses and produced various documentary evidence. Further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”) came to be recorded.

iii. After conclusion of the trial, the Trial Court convicted the appellant-accused for committing offence punishable under Section 376 (2)(d) of the INDIAN PENAL CODE , 1860 (hereinafter referred to as “the IPC”) and sentenced him to rigorous imprisonment for six years.

iv. Thereafter, the appellant-accused preferred an appeal against the order of conviction recorded by the Trial Court whereas the State preferred an appeal seeking enhancement of the sentence of the appellant-accused, as the Trial Court has awarded the sentence less than the minimum prescribed sentence for the offence under Section 376 of the IPC.

v. Vide the impugned order, the High Court dismissed the appeal preferred by the appellant-accused whereas allowed the appeal preferred by the State, thereby sentence awarded by the Trial Court has been enhanced to rigorous imprisonment for ten years.

4. The appellant-accused has, therefore, preferred the present appeals against the impugned common order passed by the High Court.

5. Heard learned Counsels appearing for the parties.

6. Learned Counsel for the appellant-accused mainly contended that:

i. PW-1/victim/informant had not supported the case of the prosecution. Similarly, PW-2, husband of the victim, had also not supported the case of the prosecution. Therefore, both were declared hostile, despite which the Trial Court as well as the High Court have placed reliance upon the FIR given by the informant-victim. In fact, the High Court has convicted the appellant-accused by converting a case of eye-witness account (direct evidence) into a case of circumstantial evidence. The High Co