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GUJARAT HIGH COURT
J.B. Pardiwala and A.C. Rao, JJ.
Ajitkumar Kumarsinh Bhagora – Appellant
versus
State of Gujarat – Respondent
R/Criminal Appeal Nos.1110 and 845 of 2017
Decided on 4.4.2019
(i) Indian Penal Code, 1860 – Sections 376(d), 506 (2) read with 114 and Section 4 of POCSO Act – Conviction of two-accused-appellants for offences under – Accused caught hold of victim while she was returning to her home at about 8 p.m. and committed rape on her, one after another – Victim while at the house of her cousin sister in other state gave birth to a child and baby was abandoned – Victim revealed at that stage that she had conceived on account of rape committed by appellants nine months back and FIR was registered – Credibility and trust worthiness of victim’s version to adjudge culpability of appellants – Delay of nine months in lodging FIR remained unexplained – DNA test confirmed that none of the two appellants was the biological father of the child delivered by prosecutrix – Trial Court erred in holding that mere negative report of DNA would not mean one should discard the oral testimony of prosecutrix – Trial Court was not supposed to make altogether a different case than the one put forward by prosecution – Conviction was liable to be set aside. (Paras 21 to 25, 29, 36
& 37, 39, 51, 52 to 54)
(ii) Criminal Procedure Code, 1973 – Section 53-A – When a person is arrested on a charge of committing rape and there were reasonable grounds for believing that examination of his person will afford evidence as to commission such offence, it would be lawful to make such as examination by a registered medical practioner – Consent of accused in giving blood sample etc. was no longer necessary. (Paras 44, 45 and 48)
(iii) POCSO Act, 2012 – Sections 29 and 30 – Presumption as to certain offences – Presumption is however a rebuttable presumption. (Para 45)
Result: Appeals allowed.
JUDGMENT
J.B. Pardiwala, J.
As both the captioned appeals arise from a selfsame judgment passed by the Special Judge (POCSO) & 2nd Addl. Sessions Judge, Panchmahals, Godhra in the Special (POCSO) Case No.14 of 2016, those were heard analogously and are being disposed of by this common judgment and order.
2. The captioned criminal appeals are at the instance of two convicts of the offence of rape and are directed against the judgment and order of conviction and sentence passed by the Special Judge (POCSO) & 2nd Addl. Sessions Judge, Panchmahals at Godhra dated 20th April, 2017 in the Special (POCSO) Case No.14 of 2016, by which, both the appellants came to be convicted by the Special Court for the offences punishable under sections 376(d), 506(2) read with 114 of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 ( for short “the POCSO”). Both the appellants have been sentenced to undergo 20 years of rigorous imprisonment for the offence punishable under section 376(d) read with section 114 of the Indian Penal Code with fine of Rs.10,000/- and in default of the payment of fine, to undergo further six months of simple imprisonment. The appellants came to be sentenced to undergo two years of rigorous imprisonment for the offence punishable under sections 506(2) read with section 114 of the IPC with fine of Rs.500/- and in default of the payment of fine, to undergo further simple imprisonment for a period of one month. The appellants have been sentenced to undergo seven years of rigorous imprisonment with fine of Rs.5000/- for the offence punishable under section 4 of the POCSO Act and in default of the payment of the amount of fine, to undergo further simple imprisonment for a period of three months. The appellants, however, came to be acquitted by the Trial Court of the offence punishable under section 6 of the POCSO. The Trial Court directed that the sentences shall run concurrently.
3. We take notice of the fact that, in all, three accused including the two appellants herein were put on trial for the offences enumerated above. The original accused No.3, namely, Sanjaybhai Anopbhai Damor came to be acquitted by the Trial Court of all the charges.
4. Case of the prosecution:
4.1 The mother of the victim, P.W. 2-Kaliben Bharatbhai Taviyad lodged the first information report, Exh.21 dated 20th December, 2015 at the Morva Police Station, inter alia, stating as under:
“My name is Kaliben W/O Bharatbhai Salabhai Taviyad, Aged: 37 years, Occupation: House wife, Residing at: Rajayata, Navi Vasahat, Moti Kyar, Ta- Morva(Ha)
Upon being personally present, I hereby state the fact of my complaint that I have been residing with my family at the above mentioned address and do the household work. I have one son and two daughters. Of which, the eldest daughter is Jasodaben then the son Hemanshukumar and the youngest daughter is XXXXX aged: 16 years. My three children are unmarried. My daughter XXXXX was admitted in Pichhoda primary school in standard-9 and she used to attend the school from the home. She appeared in the Board examination of 10th standard last year. As the result of standard-10th was declared, my daughter Jalpeben failed in three subjects. Therefore, she remained home and did the household work. As my sister in law Maniben Zaverbhai Nathabhai Garasiya’s daugher Rekhaben W/O Dharmendrabha Vechatbhai Bhamat, residing at: Panchamuvadi, Ta-Santrampur, Dist-Panchamahal had been serving at Kajada-Javahar Navodaya Vidayalaya, Ta- Surajgadh, Dist: Zujanu(Rajasthan), my daughter XXXXX went to Rajasthan two months ago to make preparation of the subjects in which she failed in standard-10th.
On 28/10/2015, nephew Anilbhai Zaverbhai Garasiya residing at: Ukhareli informed me on phone that, he received phone of Rekha from Rajasthan and she informed that XXXXX had a normal delivery in
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