2004 Supreme(Guj) 146

Gujarat High Court
Judgename :J.M.Panchal, M.R.Shah
DALWADI GOVINDBHAI AMARSHIBHAI - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL659 of 2000
Decided On : 03/10/2004

Headnote:(a) [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sec. 376 - Rape - Corroboration - It is well settled that a woman or a girl who is raped is not an accomplice - Corroboration is not the sine qua non for conviction in a rape case.

       It is well settled that a woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. To insist on corroboration except in the rarest of rare case is to esquate one who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. The evidence of a woman or girl who is raped stands on high pedestal than that of an injured witness.

       [Para 10]

       (b) [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sec. 376 - Conviction - False implication - Plea of - Victim was pregnant at the time of incident and her husband was present in her parental house, therefore, there is no reason to disbelieve her evidence that accused appellant committed rape with her - That apart accused appellant has not denied incident of rape with victim but has only defended himself pleading that he has been falsely implicated to save one `S - The suggestion is no evidence - No plea of any enmity between the two families, therefore, their was no reason for victim to falsely name appellant.

       The medical evidence shows that the victim was pregnant by two months at the time of incident. On the date of incident, her husband was present in her parental house. Under the circumstances, there is no reason why the evidence of the victim, who had complained of rape by the appellant, should be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. It is relevant to notice that the incident of rape on the victim is not denied by the appellant. The only defence pleaded is that he was falsely implicated in the case to save one Shamji Valji. Except making bare suggestion that false case was lodged by the appellant to save Shamji Valji, no evidence was led by the appellant to substantiate this defence. It is well settled that the suggestion made but denied does not constitute evidence in eye of law. The appellant has not even remotely suggested that either the victim or her parents or her husband had any enmity with him. There was no reason for the victim to name the appellant as perpetrator of crime to save Shamji Valji.

       [Para 10]

       (c) [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sec. 376 - Conviction - Validity - There is no reason to disbelieve the testimony of victim - Her testimony is corroborated by her complaint and by natural and inspiring testimony of her mother - The medical examination report of appellant shows that he had received injuries during incident and as a result of scuffle and resistance the pocket of the shirt he was wearing at the time of incident was torn - It is also in evidence in the form of report of FSL that petticoat of victim and the pant of accused appellant worn at the time of incident had same group of semen - Prosecution has thus proved by cogent and reliable evidence that accused appellant is guilty of offence of rape.

       However, even if one were to seek corroboration to the testimony of the victim, the same is available in abundance. The victim is corroborated fully by her complaint, which was lodged after her father had returned home. The plea that Head Constable, Chandubhai, had recorded the statement of the victim which should have been treated as `First Information Report and adverse inference should have been drawn against the prosecution for non production of the same, has no merit. It was never suggested to the victim that her statement was recorded by Head Constable, Chandubhai. The evidence of Investigating Officer, Mr. Mer, establishes that Head Constable, Chandubhai, had not visited the house of the prosecutrix before her complaint was registered. A stray statement made by mother of the victim to the effect that statement of the prosecutrix was recorded by Head Constable, Chandubhai, would not establish that Head Constable, Chandubhai, had visited the house of the prosecutrix and recorded her statement before she had lodged complaint.

       [Para 14]

       Her testimony further stands corroborated by natural and inspiring evidence of her mother, Gauriben, and sister, Bhartiben, who have in no uncertain terms stated before the Court that immediately after the incident, the victim had come weeping to Wadi and disclosed the name of the appellant as perpetrator of crime. It is important to notice that nothing was suggested to these two witnesses as to why they were falsely deposing against the appellant.

       [Para 15]

       If one looks to medical certificate, Exh. 31, it is specifically mentioned therein that the appellant had sustained one abrasion on the right leg on the lower half size of 7 cms. and one abrasion on the left leg on the posture surface. Thus, there is no manner of doubt that during the incident, the appellant had sustained injuries, may be they were minor in nature. Further, Panchnama of seizure of the clothes of the appellant shows that the pocket of his shirt was torn. The Panchnama of place of incident indicates that there was scuffle and resistance by the victim. Under the circumstances, it is wrong to contend that absence of injuries on the person of the appellant rules out involvement of the appellant in the incident.

       [Para 18]

       Circumstantial evidence in the form of report of Forensic Science Laboratory also lends corroboration to the testimony of the victim. The net result of the above discussion is that by cogent and reliable evidence, the prosecution has proved beyond reasonable doubt that the appellant had committed rape on the victim on the date of incident and is guilty of offence punishable under Sec. 376 of the IPC. No ground has been made out by the learned Counsel of the appellant to interfere with the conviction of the appellant under Sec. 376 of the IPC and, therefore, the conviction of the appellant will have to be upheld.

       [Para 25]

       (d) [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sec. 376 - Sentence - Rape - Court should award appropriate punishment - In the facts and circumstances of the case award of eight years R.I. by no stretch of imagination can be considered to be harsh and not warranted.

       Court finds that the appellant had disgraced the victim in repulsive manner. The appellant had taken undue advantage of loneliness of the victim, and raped her though she was married. Normally, Court finds that punishment of ten years of R.I. is being imposed for commission of offence punishable under Sec. 376 of the IPC, but in this case, R.I. for eight years is imposed which, by no stretch of imagination, can be considered to be harsh or not warranted in the facts of the case. Having regard to the manner in which the appellant had committed offence under Sec. 376 of the IPC, reduction in sentence is not called for and, therefore, the plea of reduction in sentence cannot be accepted.

       [Para 26]