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2009 Supreme(Guj) 190
2010 (2) GCD 1616 (Guj) (DB)
Hon’ble Mr. Justice A.L. Dave &
Hon’ble Mr. Justice J.C. Upadhyaya
Shri Dhulabhai Manibhai Patel
Versus
The State of Gujarat
Criminal Appeal No. 1537 of 2005—Decided on 31/03/2009
Appearance :
Mr. P.M. Thakkar, Learned Sr. Counsel for M/s. Thakkar Assoc., for the Appellant No. 1.
Mr. M.A. Patel, APP, for the Opponent No. 1.
Point in Issue :
Whether conviction of appellant in the case is sustainable.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 376 and 506(2) — Rape — Conviction for the offence — Appreciation of evidence — Sustainability — Finding of — Scanning the entire oral and documentary evidence adduced by prosecution Court found nothing in the case suggesting that prosecutrix lodged false, frivolous and malicious FIR containing false allegation of rape against appellant who is her own father-in-law — In the case incident has occurred on 10.03.2004 and FIR is lodged on 15.03.2004 — This delay has been highly criticised on behalf of defence but considering the fact that offence was committed by father-in-law of prosecutrix and lodging the FIR against him about rape was bound to run her life — Therefore, because of some inner conflict delay is caused in filing the FIR, which is immaterial and has to be ignored — It is also required to be noted that if prosecutrix wanted to lodge a false FIR then delay in lodging FIR absence of refrigerator in the scene of offence of Panchnama and other minor discrepancies and minor contradictions in the evidence could have been averted — The very fact that such things have come on record suggest that the criminal action was not initiated by prosecutrix with some ulterior motive or ill will — The overall picture which emerged from the evidence of prosecution which appears to be cogent, consistent trustworthy and inspires confidence is suggestive of the ring of truth in her version — Court, therefore, held that trial Court has rightly recorded conviction of appellant and has rightly exercised it’s discretion in sentencing the appellants.
Held :
In the instant case, scanning the entire oral and documentary evidence adduced by the prosecution, nothing emerges that the prosecutrix lodged false, frivolous and malicious FIR containing false allegations of rape. As stated earlier in this judgment, the appellant is not a stranger person, but the father-in-law of the prosecutrix. He is the head of the family and resides in the same house along with his family members. The incident occurred within the four walls of the house. In a way, it can be described as a domestic violence. On behalf of the appellant, the delay in lodgement of FIR was highly criticized. However, as discussed earlier in this judgment, irrespective of the final outcome of the case, whether the case ends in conviction or acquittal of the father-in-law of the prosecutrix, mere lodgement of FIR against her father-in-law about the offence of rape, the matrimonial life of the prosecutrix was going to be ruined. Therefore, before lodgment of FIR, some sincere attempts were made to meet elder brother of the husband of the prosecutrix, but no response was given. The evidence reveals that instead of giving consolation to the prosecutrix and her mother, they were condemned. It has come in evidence that on 17/3/2004 the prosecutrix had to file a report before the police regarding threat given to the prosecutrix by her father-in-law and her husband’s elder brother. Thus, whatever delay was caused in lodgement of FIR was result of inner conflict of the prosecutrix between saving her and her in-laws’ honour, dignity and reputation on one hand and cry for justice on other. [Para 17]
If the prosecutrix wanted to lodge a false FIR after obtaining ill-advice from an advocate, then the event of delay in lodgement of FIR would not have arisen. Immediately she would have lodged the FIR. If the prosecutrix was getting continuous assistance of an advocate as it is alleged by the appellant, then in the history recorded by Dr. Shah, the mistake of referring date of incident as 9/3/2004 would not have occurred. On behalf of the appellant, it is submitted that as per the version of the prosecutrix, she stated that at the time of the incident, the appellant gave ice-cream to Anchal taking it out from a refrigerator, but in the scene of offence Panchnama and in the evidence of I O, there is no reference of having refrigerator in the house. If the prosecutrix was getting continuous assistance from an advocate, in the Panchnama of scene of offence, the existence of refrigerator in the house could have been incorporated. In other words, all such minor discrepancies and minor contradictions in the evidence could have been averted. The very fact that such minor and insignificant discrepancies emerge from the evidence on record suggest the fact that the criminal action was not initiated by the prosecutrix on the basis of some ill-advice given to her either by advocate or by her mother or her relatives. Though the minor discrepancies shall pale into insignificance, but the overall picture which emerges from the evidence of the prosecutrix is suggestive of ring of truth in her version. Thus, considering the background of the case, it cannot be said that the delay in lodgement of FIR is undue or unexplained one or it was deliberate with a view to falsely implicate the appellant. [Para 17.1]
The prosecutrix stated that in the FIR it has been clearly mentioned by her that the threat was administered to her in the room on the first floor before the rape was committed by the appellant. As stated above, the overall evidence of the prosecutrix is required to be considered. The overall evidence of the prosecutrix is cogent, consistent, trustworthy and inspires confidence of the Court. Therefore, there is nothing to come to the conclusion that the prosecutrix levelled false charges of rape against the appellant. [Para 17.2]
J.C. Upadhyaya, J.—The appellant, who was original accused in Sessions Case No. 117 of 2004, by preferring this appeal challenged the legality and validity of his conviction, recorded by the Presiding Officer, Fast Track Court No. 2, Ahmedabad [Rural] on 27/5/2005 for the commission of offences punishable under Sections 376 and 506 [2] of the Indian Penal Code [IPC]. The Learned Trial Judge awarded sentence of rigorous imprisonment [RI] for 10 years and fine of Rs. 5,000/-, in default of payment of fine, RI for 3 months for the offence punishable under Section 376 of the IPC and RI for one year and fine of Rs. 1,000/- and in default of payment of fine, RI for one month for the offence punishable under Section 506 [2] of the IPC. Substantive sentences of imprisonment were ordered to run concurrently and the benefit of set off was given.
2. The prosecution case, in nutshell, is that the appellant happens to be father-in-law of prosecutrix - Bhavna alias Bhavika. The prosecutrix married with Mahendra Dhulabhai, son of the appellant on 17/2/2003 and after her marriage, she went to reside with her husband at her matrimonial home situated at village Ognaj of District Ahmedabad. The family of her husband, at the time of the incident, consisted of her father-in-law [appellant], her mother-in-law Hiraben and minor girl Anchal, aged about 3 years, who was daughter of her husband’s elder brother.
2.1. The incident occurred at about 11.00 a m on 10/3/2004. At the time of the incident, her husband had left the house to attend his job and her mother-in-law Hiraben had gone to Gandhinagar where her husband’s elder brother was residing. Thus, at the time of the incident, the prosecutrix, her father-in-law [the appellant] and Anchal, aged about 3 years, were only there in the house. The prosecutrix was doing routinal household work in the ground floor portion of the house. It is alleged that at that time, the appellant shut the main door of the house from inside and came near the prosecutrix and he caught hold of her hands and forcibly took her to a room which was situated in the upstairs of the house. The appellant then closed the prosecutrix into the room by closing the door of the room from outside and the appellant returned back in the room with Anchal. Anchal was made to sit on a bicycle and the appellant gave her ice-cream and threatened the prosecutrix that if she will speak anything or will shout, she would be done to death. Then the prosecutrix was undressed by the appellant and was compelled to lie-down on a cot and the prosecutrix was raped without her will or consent by the appellant. It is alleged that Anchal opened a window of the room and thereupon the appellant carrying his clothes in his hands, left the room and went to the ground floor of the house. The prosecutrix thereafter put on her clothes and went to the ground floor. The appellant then told the prosecutrix to accompany Anchal and to leave Anchal to the Nursery School. The prosecutrix then along with Anchal, went to the Nursery School, left Anchal there and instead of returning back to her matrimonial home, she went to her mother’s house which was situated in the City of Ahmedabad, but the house was locked. She, therefore, went to the High Court as her mother was serving in the canteen of the High Court, but in the compound of the High Court, she saw scooter of her husband and, therefore, she did not go inside the canteen to meet her mother, but she returned back to her mother’s house and waited outside the house till her mother returned from her service. It is alleged that after Kailasben Bhikhabhai, mother of the prosecutrix returned to her home, the prosecutrix narrated the incident about the rape to her mother. On the next day, her mother informed about the incident to her aunt and other relatives and they went to Gandhinagar where the elder brother of the husband of the prosecutrix was residing and informed him about the mis-deed committed by his father, but
