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2016 Supreme(Guj) 197
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Rajesh H. Shukla, J.
Abdulbhai Isakbhai Miyana - Appellant
Vs.
State of Gujarat - Respondent
Criminal Appeal No. 1486 of 2012
Decided On: 25.01.2016
Advocate Appeared:
For the Appellant: Y.J. Patel
For the Respondents: H.L. Jani
An extra judicial confession, if true and voluntary, can be relied upon to convict the accused.
Headnote:
RAPE - Criminal Law - Indian Penal Code, Sections 376, 506(2) - The court discussed the evidence presented by the prosecution, including the victim's testimony, medical evidence, and an extra judicial confession by the accused. The court emphasized the victim's testimony as natural and reliable, corroborated by medical evidence, and dismissed the defense's arguments regarding consent and absence of injuries. The court also highlighted the legal principle that an extra judicial confession, if true and voluntary, can be relied upon to convict the accused.
Fact of the Case:
The victim was raped in a lonely area, and the accused was convicted under Sections 376, 506(2) of the Indian Penal Code based on the prosecution's evidence.
Finding of the Court:
The court found the victim's testimony to be natural and reliable, corroborated by medical evidence, and dismissed the defense's arguments. The court also emphasized the legal principle regarding extra judicial confession.
Issues: The issues revolved around the credibility of the victim's testimony, the presence of injuries, and the relevance of an extra judicial confession.
Ratio Decidendi: The court relied on the victim's testimony, medical evidence, and an extra judicial confession to establish the guilt of the accused.
Final Decision: The appeal was dismissed, and the conviction and sentence of the accused were confirmed.
Rajesh H. Shukla, J.
1. The present Appeal is directed against the judgment and order rendered in Sessions Case No. 28 of 2012 by the learned Sessions Judge, Surendranagar dated 8.8.2012 recording conviction of the Appellant Accused for the offence under Sections 376, 506(2) of the Indian Penal Code imposing the sentence as stated in detail in the judgment and order. The facts of the case briefly summarized are as follows.
2. As it transpires from the record that on 14.1.2012 at about 6:30 PM when the victim had gone to answer the natural call in the compound of the Jilla Panchayat Office known as Pathik Ashram, which is a lonely area, the Appellant/Accused had dragged her in the bushes, gagged her mouth, overpowered her and committed the offence of rape. Therefore the complaint came to be filed which is registered as FIR No. 9/2012 with Surendranagar City Police Station for the offence under Sections 376, 323, 504and 506(2) of IPC.
3. After the investigation was over the charge sheet was filed and as the offence under Section 376 IPC is triable by the Court of Sessions, the learned Sessions Judge, Surendranagar framed the charges for the offence and proceeded with the trial.
4. In order to bring home the charges leveled against the Appellant/Accused, the prosecution has examined the witnesses including the victim and also produced the documentary evidence in the form of medical evidence which shall be referred to hereinafter.
5. After the recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Surendranagar recorded the further statement of the Appellant/Accused under Section 313 of the Code of Criminal Procedure.
6. After hearing the learned APP as well as learned Advocate for the Accused, the learned Sessions Judge, Surendranagar recorded the conviction of the Accused and sentenced him as stated in detail in the impugned judgment and order. It is this judgment and order which has been assailed in the present Appeal on the grounds stated in the memo of Appeal.
7. Heard learned Advocate Shri Y.J. Patel for the Appellant/Accused and learned APP Shri H.L. Jani for the Respondent - State of Gujarat.
8. Learned Advocate Shri Y.J. Patel for the Appellant/Accused referred to the testimony of the victim PW-2 at Exh. 13 and her complaint at Exh. 14. Learned Advocate Shri Patel pointedly referred to the testimony of the victim and submitted that on the one hand she has stated the name of the Accused and on the other hand she has said that she does not know the Accused and therefore there is a discrepancy in her evidence. Learned Advocate Shri Patel has referred to the testimony of PW-3 at Exh. 15 and submitted that he has not supported the prosecution case. Similarly, he has referred to the testimony of Dr. Bansi PW-6 at Exh. 19 and the certificate at Exh. 21 and Exh. 24. Learned Advocate Shri Patel submitted that there are no marks of injuries as stated by the another Doctor named Shetal Prajapati - PW-9 who is a Gynecologist. Learned Advocate Shri Patel referred to the testimony of Dr. Shetal Prajapati PW-9 at Exh. 31 to emphasize that on one hand she has stated that there were no injuries and the act was consensual. Learned Advocate Shri Patel submitted that the victim was a married woman with children and therefore absence of any injury would suggest about her consent. Learned Advocate Shri Patel submitted that this aspect has not been properly appreciated by the court below. Learned Advocate Shri Patel has also referred to the FSL report and submitted that the FSL report does not confirm about the act and therefore the same may not attract Section 376 IPC. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2015) 7 SCC 272 in case of Mohd. Ali Alias Guddu v. State of Uttar Pradesh. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2013) 4 SCC 206 in case of State of Rajasthan v. Babu M
