Gujarat High Court

Imran Haji Ramjani Multani vs State Of Gujarat on 13 January, 2021

Bench: A.Y. Kogje

        R/CR.MA/19916/2020                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 19916 of 2020
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                        IMRAN HAJI RAMJANI MULTANI
                                   Versus
                            STATE OF GUJARAT
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Appearance:
MR. ASIM PANDYA, SENIOR ADVOCATE with AADITYA D BHATT(8580)
for the Applicant(s) No. 1
CHANDNI S JOSHI(9490) for the Applicant(s) No. 1
MR.L.B.DABHI, APP, (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 13/01/2021
                                 ORAL ORDER

[1] RULE. Learned APP waives service of Rule on behalf of

the respondent State.

[2] The present application is filed under Section 439 of the

Code of Criminal Procedure, 1973, for regular bail in connection

with FIR being I-CR No.11187007201253 of 2020

registered with Santrampur Police Station, Mahisangar

for offence under Sections 376D, 376(2)(n), 377, 506(2) and

507 of the Indian Penal Code.

[3] Learned senior advocate Mr. Asim Pandya with learned

advocate Mr. Aditya Bhatt, appearing on behalf of the applicant

submits that the bail application deserves consideration on the

ground that the version given by the prosecutrix is not

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consistent when the statement of the prosecutrix and the

medical history recorded by the Medical Officer is compared. It

is submitted that the versions are quite contradictory and

virtually the accused No.1 has been exonerated from the

reading of version recorded by the Medical Officer. It is

submitted that the statement of the prosexutrix can also be

doubted as the same is not supported by the medical

evidence. Even after filing of the charge-sheet, there is nothing

on record to suggest that forcibly sexual intercourse had taken

place as though the investigation was launched almost

immediately; there is no sign of injury or presence of

spermatozoon either on the cloth of the accused or the

prosecutrix.

[3.1] He submitted that the version of the prosecutrix can also

be doubted as at different stages she had described the place

of incident differently; thereby putting to doubt the

consistency in her version. It is submitted that not only the

version of the victim, but also supporting witnesses put to

doubt the case of the prosecution, as husband of the

prosecutrix has stated that the prosecutrix is staying at her

maternal house for past 10 to 15 days, whereas mother of the

prosecutrix in her statement has stated that the prosecutrix

has not visited the house of the husband for past three

R/CR.MA/19916/2020 ORDER

months. Learned senior advocate submitted that primarily the

FIR is registered on account of financial aspect as in the FIR

itself, the applicant has stated that she was induced on

account of money promised by accused No.1 for entering into

relationship and therefore, for substantial period, the

relationship was in the nature of consensual relation more

particularly when the prosecutrix is aged around 38 years

married and having two children. Learned senior advocate

even went to the extent of castigating the prosecutrix to be a

lady of easy virtue. It is submitted that the applicant's case

also deserves consideration on the ground of improper

investigation as during the investigation, no video recording is

found which the prosecutrix has alleged that the accused

persons were threatening her and blackmailing her by using

obscene videos/photos. It is submitted that no CDR is on the

record of investigation to substantiate the version of the

prosecutrix that all the accused persons frequently calling her

and harassing her. Learned advocate has thereafter, relied

upon the judgment of the Apex Court in support of his

contention that the sole testimony of the prosecutrix can be

the basis of conviction, but such version of the prosecutrix

must be able to inspire confidence in the mind of the Court and

should also be supported by surrounding circumstances. If the

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surrounding circumstances are highly improbable and relied

version of the prosecutrix then the conviction cannot be based

on sole testimony of prosecutrix. The applicant has relied upon

the judgments of Apex Court in the case of Sadashiv Ramrao

Hadbe v/s. State of Maharasthra and others, reported in

(2006) 10 SCC 92, in the case of Ram Murti V/s. State of

Haryana, reported in (1970) 3 SCC 21, in the case of Krishna

Kumar Malik v/s. State of Haryana, reported in (2011) 7

SCC 130, in the case of Radhu v/s. State of Madhya

Pradesh, reported in (2007) 12 SCC 57 and upon unreported

judgment in the case of Santosh Prasad @ Santosh Kumar

v/s. The State of Bihar in Criminal Appeal No.264 of

2020.

[4] As against, this, learned Additional Public Prosecutor has

strongly opposed the application contending that the allegation

is of a serious nature of gang rape, where the version of the

prosecutrix herself in statement is consistent insofar as actual

offence is concerned. It is submitted that on each of the

occasions, the prosecutrix has clearly described the manner in

which the offence has taken place indicating that the accused

No.1 and accused No.2 took turn in committing the rape and

also offence of unnatural sex. It is submitted that the allegation

of unnatural sex is only against the present applicant and not

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against the accused No.1. Therefore, the description of offence

given by the prosecutrix is required to be accepted as truthful.

[4.1] It is submitted that the arguments of merely

contradiction in the version of the witnesses cannot be

considered at the stage of bail as it wold be in the realm of

appreciation of evidence. It is submitted that attempt on the

part of the applicant is to create doubt that the incident never

took place and if at all it was consensual in nature. He draws

attention of this Court to the medical examination of the

accused persons and the history recorded by the Medical

Officer, wherein the accused No.1 has stated that the victim

was taken by him to his house for his friend i.e. the present

applicant. Similarly, the medical history recorded by the

Medical Officer given by the applicant himself also indicates

the date and time on which the victim was brought to the

house of the accused No.1 and when he went to the house of

his friend, the victim was present. Even he has denied to have

any sexual intercourse with her. It is therefore, submitted that

the fact of the applicant and the prosecutrix be at the same

place at the same time of the offence cannot be denied and at

this stage the Court may not take into consideration the

version of the accused persons, but due weightage is required

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to be given to the version of the prosecutrix. It is submitted

that the FSL Officer had visited the scene of offence and noted

the description in his report of examination and the tablet

wrappers were found by the side of the bed on which the

offence took place and also alongwith the torn wrappers, other

tablets intact were also fond and such medicines have some

relation with the sexual intercourse and therefore, the scene of

offence also supports the version of the prosecutrix.

[4.2] The learned APP has draws attention of this Court to the

statements of the neighbours to indicate that the premises

where the incident took place was an ancestral property

belonging to the father of the accused No.1, where the

accused No.1 and his friends were frequently visiting. It is

therefore, submitted that the offence which is of serious

nature, the Court may not exercise the discretion in favour of

the applicant.

[5] In rejoinder, learned senior advocate for the applicant

submitted that none of the facts as listed here are established

i.e. 1.) Factum of Threats to the accused, 2.) Alleged Video on

the basis of which the prosecutrix was alleged to have been

blackmailed, 3.) Presence of the prosecutrix at the place of

incident, 4.) Application of force, 5.) Penetration, 6.)

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Penetration by both the accused, 6.) Corroborating Medical

Evidence establishing the factum of intercourse 7) Bodily

marks, tears, injuries, presence of semen, saliva, pubic hair

etc, on the cloths of Victim, or accused persons, or even from

the bedsheet of the alleged place; and therefore, in view of no

corroborating evidence to have been found through the

evidentriary material placed in the charge-sheet; and also in

view of the fatal contradictions of the version of prosecutrix

herself, between the version in the FIR and the medical

statement, and therefore, prosecution story does not inspire

confidence and therefore, bail requires to be granted.

[6] The Court has heard learned advocates for the parties

and perused the documents placed on record. The FIR is

registered for offences punishable under Sections 376D, 376(2)

(n), 377, 506(2) and 507 of the Indian Penal Code for an

incident took place on 02.10.2020 and was registered on

03.10.2020 which indicates that the FIR has been promptly

registered by the prosecutrix. In the FIR, two accused persons

are named. The present applicant is named as accused No.2.

The accused No.1 has not preferred bail application and is in

custody.

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[7] In the FIR, it is alleged that the accused persons, for the

last 15 days, have been threatening the complainant over the

phone and compelled her to come at the house of accused

No.1 and both the accused laid down the victim on the bed and

committed repeated rape on her against her will one by one.

Further, on 02.10.2020, the accused persons again threatened

the complainant to death over the phone and called her at the

room situated in the second floor of accused No.1 and laid the

complainant on the bed by holding her and accused No.2

committed sex by penetrating his penis into the mouth the of

complainant and thereafter, both the accused committed rape

on the complainant against her will and threatened the

complainant over the phone as well as directly that if the

complainant informs about this to her family members, they

would kill her. During the course of investigation, panchnama

has been carried out including the scene of offence which was

examined by the FSL. The FSL report of the place would

indicate that in the room where the alleged offence took place,

the FSL has recovered a torn wrapper of tablet and also intact

wrapper of the tablets, wherein on the tablet it is written as

under:-....

"Sildenafil Citrate...Viagra Fil......"

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[8] The accused persons who have been examined in their

medical history has stated as under:-

"Anitkhan S/O Jarjiskhan Pathan, H/O by accused-On date 02/10/2020 at 9:30 pm victim came to my house call by me for my friend Imran Hahiramani Multani. I have not taken sexual intercourse with her."

Imran Hajiramani Multani, H/O by accused-On date 02/10/2020 at 9:30 pm Victim came to my friend house call by me friend Anitkhan Jarjiskhan Pathan. I went to my friend house victim was there. I have not taken sexual intercourse with her ."

[8.1] What is stated that the accused persons conscience with

the history given by the prosecutrix in her very first version

recorded in the FIR. Therefore, prema-facie, the Court is

inclined to believe that the incident of offence has taken place

and the version of the prosectrix with regards to commission of

offence is required to be believed at this stage. The submission

of learned advocate for the applicant with regards to the

contradictory version of the prosecutrix cannot be taken into

consideration at this stage as the contradictions which are

sought to be pointed out by the applicant with regards to the

place where the incident took place and the history given by

the prosecutrix before the Medical Officer, in the opinion of the

Court, are not of such a nature which would falsify the question

of offene in its entirety. What is recorded by the Medical

Officer in the history given by the prosecutrix is the evidence

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which has to be established by the author of such evidence.

Meaning thereby, what is entered as a history will have be

established proved or disproved when the author of this

evidence will step into the witness box. At the stage of bail, the

evidence that has come on record under the authorship of

supporting witnesses cannot be considered to conclude that

the version of the prosecutrix is contradictory version.

[9] With regards to the argument that the sole testimony of

the prosecutrix can be the basis for conviction provided the

version of the prosecutrix inspires confidence of the Court

where the evidence had witness of sterling quality can only be

decided when the witness steps into the witness box. The

sterling quality of the prosecutrix cannot be exercised which

the Court in preempt to draw conclusion that the prosecutrix

version is not reliable.

[10] In this connection, the reliance placed by the applicant in

case of Sadashiv Ramrao (Supra), wherein the Apex Court

has held as under:

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and believe the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen ."

R/CR.MA/19916/2020 ORDER

The aforesaid judgment is rendered at the stage of appeal preferred against the judgment of Division Bench of Bombay High Court after the appellant therein was found guilty of the offence and that the Court had occasion to peruse the version of the prosecutrix to test reliability."

[11] Similarly, in case of Ram Murti (Supra), the Apex Court

has held as under:

"The prosecutrix has made several divergent statements. Keeping in view the medical evidence which shows that the prosecutrix had been used to sexual intercourse, in order to accept her statement that she was compelled, threatened, or otherwise induced to go with the appellant, there should, in our opinion, be corroboration of some material particular from some independent source and her bare statement cannot be considered sufficient to sustain the appellant's conviction.....There is thus no evidence on the record on which the offence under Section 366 can be sustained against the appellant. The appeal is, therefore, allowed and the appellant acquitted."

The aforesaid judgment was also at the stage of

considering the conviction recorded, where the possibility of

falsely implicating the accused persons by herself or at the

instance of Investigation Officer was being examined.

[12] In case of Santosh Prasad (Supra), the Apex Court has

held as under:-

"when the conviction is based on the sole testimony of the prosecutrix and the medical evidence does not support the case of the prosecution/prosecutrix and the deposition of the prosecutrix is full of material contradictions and that there was already a dispute between the accused and the family members of the prosecutrix and no independent witnesses have been examined, it is not safe to convict the accused solely on such testimony of the prosecutrix-PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no

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scope to sustain the conviction and sentenced imposed on the appellant and accused is to be given the benefit of doubt." It further stated that:

"From the impugned judgments and orders passed by both courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition PW1, it has come on record that there was a land dispute going on between both parties. Even in the cross-examination even the PW5-prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh- Medical Officer and PW7-Dr. Renu Singh submitted injury report. In the injury report, no sperm, as well as RCB and WBC, were found. Dr. Renu Singh, PW7-Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examinationin-chief.) However, in the cross-examination, she has that there was no physical or pathological evidence of rape.

As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties,."

In the aforesaid judgment, the Court was examining the

appeal against the conviction confirmed by the High Court of

Patna.

[13] The Court having considered the evidence which is on

record, prima-facie, the allegations which are serious in nature

are required to be believed as the contradiction pointed out

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even if believed, is of such a nature that does not disturb the

version of the prosecutrix insofar as the commission of the

offence is concerned. The version of the prosecutrix clearly

attributes the serious role to the applicant for participating in

the sexual intercourse with the other accused and a specific