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2017 Supreme(Guj) 25
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Akil Abdul Hamid Kureshi, Biren Vaishnav, JJ.
State of Gujarat - Appellant
Vs.
Traya Haji Allarakhiya and Ors. - Respondents
Criminal Appeal No. 116 of 1994
Decided On : 11-01-2017
For the Appellant : C.M. Shah
For the Respondents: Jay Thakker for Yogesh S. Lakhani
Headnote:
Criminal Law – Criminal Trial – Indian Penal Code, 1860 – Sections 376, 366, 506(2) r/w section 34 – Rape of Minor girls – Acquitted – Challenging the judgment of the acquittal rendered by the learned Additional Sessions Judge – Incident complainant- first victim and her friend and neighbour - second victim were, at about 3 O clock in the afternoon, walking in the street of their village, when the two accused came there from opposite direction – One of them wielded a knife – They both caught the girls and dragged them to a nearby field where in a small house they both raped girls – According to the prosecution, both girls were below 16 years of age at the time of the incident – Held, According to these girls, they were all the time shouting and crying. The medical evidence or the clothes of the victim did not show any such traces of being dragged on ground – More importantly even according to these witnesses, there were several factories situated around field of Khanubhai, one of them being on the field or close to it, but no one seemed to have come to their help – The girls admitted that at such factories, normally, there are lots of people present – Near field of Khanubhai, there were several other fields and the road to Khanubhais field led to other fields as well – If this was the situation of the location, it simply defies logic that the two girls could have been dragged for a distance close to half a kilometer by their estimate of walking time during which they were continuously shouting and crying for help. Their physical examination and condition of the clothes also does not match this theory – Judge had also rightly referred to the deposition of Dr. Khimjibhai Dudabhai Makwana, PW-1, who had though noticed the ruptured hymen, had not recorded that such rupture was fresh – When trial Court examined evidence from different angles and found the versions of girls being subjected to sexual intercourse improbable, in acquittal appeal – As is well settled, unless the appreciation of evidence by the Court below is perverse, the appellate Court would not reverse the decision of the acquittal into one of conviction, only because two views are possible – Admittedly uncle met the girls right at the border of the field of Khanubhai which would mean barely a couple of feet away from the scene of the incident – Soon the uncle was joined by three or four residents of the village, one of them was Sarpanch – Despite this, they had not tried to catch hold of accused instead dropped the girls at their houses – Criminal Appeal stands dismissed.(Paras 16, 19, 20 and 21)
Akil Abdul Hamid Kureshi, J.
1. This appeal is filed by the State challenging the judgment of the acquittal rendered by the learned Additional Sessions Judge, Kutch, dated 30.9.1993 in Sessions Case No. 52/1989.
2. Briefly stated, the prosecution version was that on the date of the incident i.e. 14.4.1998, the complainant (we may refer to her as "the first victim") and her friend and neighbour (we may refer to her as "the second victim") were, at about 3 O' clock in the afternoon, walking in the street of their village, when the two accused Traya Haji and Traya Adam came there from the opposite direction. One of them wielded a knife. They both caught the girls and dragged them to a nearby field where in a small house, they both raped the girls. According to the prosecution, both the girls were below 16 years of age at the time of the incident. Charge exh.1 was therefore, framed against both the accused for having committed offences punishable under sections 376, 366, 506(2) read with section 34 of the Indian Penal Code.
3. Dr. Khimjibhai Dudabhai Makwana, PW-1, exh.7, was the medical officer at Rapar Community health centre who had examined both the victims and the accused. He found both the accused physically matured. He collected samples from the body of both the accused. Regarding the first victim, the doctor had noticed scratch marks on her breasts and on her private parts. Her hymen was ruptured. Regarding the second victim, the doctor had noticed similar scratch marks on her body as well as ruptured hymen. For both the victims, he had opined that only a Civil Surgeon can assess their age.
In the cross examination, he admitted that he had not recorded that the hymen had a recent rupture and also agreed that had it been the case, he would have so noted. There was no swelling on the private parts, nor had the girls complained about pain there. Two fingers could easily be inserted in the vagina. He had not noticed any scratches or injuries on the buttocks or the back side of the girls which could be caused by dragging them.
4. Laljibhai Narotambhai Patel, PW-5, exh.30, was the principal of the Primary school at the village. He had produced School Leaving Certificates of the two girls at exh.31 and 32. As per these certificates, the date of birth of the first victim was 1.6.1973 and that of the second victim was 1.6.1974. The first victim was shown to have studied upto third standard and the second victim upto fourth standard.
In the cross examination, he stated that such certificates were issued on the basis of general register maintained at the school and he was in possession of such register. While admitting a student in the school, the guardian has to fill up a form showing the name, age, etc. of the student. Such forms of the victims were not collected by the police. When the girls were admitted in the school, he was not serving there. He therefore, did not have personal knowledge about these details. The village has a Gram Panchayat where Death and Birth register is maintained. While admitting a student, the school will ordinarily ask for the proof of date of birth. He however, denied that if the guardian gives an approximate age of the student, the school management would indicate 1st June as his or her date of birth.
5. The first victim, PW-6, exh.33, was also the first informant. She deposed that the second victim lives next to her house. They were both going to the field of Ganesh Ramji to collect lemons. At that time, the accused met them on the road to the field of Khanubhai at about 3 to 3:30 in the afternoon. Accused No. 1 held her hand, accused No. 2 held the hand of the other victim and they had taken them away by showing a knife to the house which was situated in the field of Khanubhai. They threatened them and disrobed them and thereafter, raped them. Accused No. 1 had raped her for about one and half hour. In the other room, accused No. 2 had raped her friend. After that they had run away from the place.
