Gujarat High Court
State Of Gujarat vs Hiralal Lallubhai Trivedi on 1 April, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/1316/1999 JUDGMENT DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1316 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
HIRALAL LALLUBHAI TRIVEDI
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Appearance:
MR RONAK RAVAL, APP for the Appellant(s) No. 1
MR R L RAVAL(7604) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 01/04/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Appeal is directed against the judgment and
order dated 30th October 1999 passed by the Trial Court,
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Sabarkantha at Himmatnagar, acquitting the respondent-
accused for the offences for which he was charged.
2. As per the case of the prosecution and as per the charge at
Exh.11, on 17th July 1998 at around 12:30 p.m. the respondent-
accused committed offences under Sections 363, 366 and 376 of
the Indian Penal Code on the prosecutrix who was aged about 8
years. The complaint at Exh.56 was given by the father of the
prosecutrix on 24th July 1998 making such allegations against
the respondent-accused. Thus, the incident which has occurred
on 17th July 1998, the complaint has been given by the father of
the victim on 24th July 1998 by tendering the explanation that
since his wife was not at home and was elsewhere and after due
deliberation with the family members and the in-laws, the
complaint has been registered. It is pertinent to note that the
mother of the victim has not been examined as a witness,
however, her statement under Section 161 of the Code of
Criminal Procedure has been recorded.
3. The trial court, after examining the ocular as well as the
medical evidence, has acquitted the respondent-accused for the
offences for which he was charged.
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4. Learned APP Mr.Ronak Raval, while assailing the judgment
and order of acquittal passed by the trial court, has submitted
that the trial court has not appreciated the evidence in its true
perspective. He has submitted that there is a direct evidence of
the prosecutrix who is examined as PW-7 at Exh.147. Learned
APP has submitted that she, in her deposition, has specifically
narrated the manner in which the incident had occurred and the
accused had tried to commit rape on her. However, the trial
court has disbelieved the version of the prosecutrix, which is
erroneous. Learned APP has submitted that as per the ocular
evidence of the prosecutrix, she was aged about 8 years. The
respondent, who is the teacher, had called her in his house and
when she had prepared the rice and also cleaned the house, the
respondent-accused had closed the doors and windows of the
house and had forcibly committed the rape on her by carrying
her on the bed forcefully. He has submitted that the prosecutrix
immediately contacted the first available person, i.e. PW-10
Pushpaben, who is the grandmother of the prosecutrix and
thereafter she was taken for medical treatment and was
examined by the Medical Officers. The first was the PW-1
Dr.Ganpatsinh Ambadanji Charan examined at Exh.14, who has
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recorded the history. He has submitted that the other medical
officers who have been examined by the prosecution being PW-4
Dr.Jinabhai Amthabhai Yadav examined at Exh.30, who is the
Medical Officer at Civil Hospital, Himmatnagar, who has also
confirmed the offence of rape being committed on the victim.
Learned APP has also referred to the evidence of the PW-5
Dr.Manubhai Hirabhai Solanki examined at Exh.32, who is the
third Medical Officer who has examined the victim on 24 th July
1998, has also confirmed that an attempt was made on the
victim for commission of rape, however, the accused was not
successful. Learned APP has also referred to the evidence of
PW-8 Dr.Ashwinbhai Joitabhai Patel at Exh.49 and submitted
that he has also confirmed that an attempt was made for
commission of the offence of rape on the victim. Learned APP has
referred that the doctor has also recorded the history of the
prosecutrix. Learned APP has submitted that even the panch
witnesses being PW-2 Hajiben Abdulbhai Mansuri and PW-3
Kamleshkumar Jayantilal Pandya have supported the case of the
prosecution so far as the recovery of the clothes of the
prosecutrix and the discovery of the clothes of the respondent-
accused is concerned. Learned APP has also referred to the
evidence of the PW-10 Pushpaben Ratilal Trivedi examined at
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Exh.53, who happens to be the grandmother of the prosecutrix
and the first person who has been informed by the prosecutrix
about the commission of rape by the respondent-accused on her.
Learned APP has also referred to the evidence of the PW-6, i.e.
the father of the prosecutrix Atulkumar Ratilal examined at
Exh.41, who has narrated the incident as described by the
prosecutrix. Learned APP has further referred to the history
recorded of the victim by the PW-5 Dr.Manubhai Hirabhai
Solanki examined at Exh.32 and PW-4 Dr.Jinabhai Amthabhai
Yadav examined at Exh.30. Thus, it is submitted that even if the
documentary evidence is discarded, the sole testimony of the
prosecutrix is enough to prove the offence.
5. In support of his submissions, learned APP has placed
reliance on the judgments in the cases of Vijay @ Chinee vs.
State of Madhya Pradesh, reported in (2010) 8 SCC 191;
State of Maharashtra vs. Chandraprakas Kewalchand
Jain, reported in (1990) 1 SCC 550; and Karnel Singh vs.
State of Madhya Pradesh, reported in (1995) 5 SCC 518.
6. Learned APP has thus submitted that the trial court has
acquitted the respondent-accused by making perverse
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observations to the effect that the past life and the career of the
accused was not tainted and he was having excellent career. On
this pretext, it is submitted that the trial court has acquitted the
respondent-accused. Learned APP has also submitted that one of
the factors which weighed upon the trial court was the delay in
recording the FIR, which cannot be given preference in a serious
offence like murder. Thus, it is urged that the acquittal recorded
by the trial court acquitting the respondent-accused may be
reversed by setting aside the judgment and order.
7. In response to the submissions advanced by the learned
APP, learned advocate Mr.R.L.Raval appearing for the
respondent-accused has submitted that the judgment and order
passed by the trial court does not require any interference by
this Court since the same is precisely passed after examining the
ocular as well as the documentary evidence. Learned advocate
Mr.Raval has submitted that, in fact, the version of the victim
does not inspire confidence as she has falsely stated that she
was studying in Standard-IV on the date of the incident in Ravol
Primary School, whereas, the evidence of the Principal PW-9
Lakhabhai Amichandbhai Patel examined at Exh.50 refers that
the victim had already left the school one year prior to the
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incident and that she was studying at Kamalpur Primary School
at Idar. He has produced the birth certificate of the victim,
specifying the date of birth as 28.7.1990, as well as the school
leaving certificate of the Ravol Primary School, where the victim
stated that she was studying and she was on leave on that day
as there was holiday in the school due to the meeting. Thus, it is
urged that this version of the prosecutrix that she was at home
since there was holiday in Ravol Primary School is false. He has
further referred that the victim has stated that after the alleged
commission of the offence by the accused, he had kept the inner-
wear with him, however, the same does not reconcile with the
evidence of the grandmother of the victim (PW-10), who has
stated that the inner-wear as well as the frock worn by the victim
was with her and she had taken the same when the victim was
taken to the medical evidence. Learned advocate has further
stated that the medical evidence also does not reconcile with the
deposition of the Medical Officer who has examined the victim.
Learned advocate has submitted that though the PW-1
Dr.Ganpatsinh Ambadanji Charan had immediately informed the
police about the incident on the very same day, i.e. on 17 th July
1998 and the police had also visited the house of the victim on
18th July 1998, however, the FIR came to be registered on 24 th
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July 1998, i.e. after a period of 7 days, by the father of the
victim. Learned advocate has further submitted that, in fact,
when the victim was examined by the PW-4 Dr.Jinabhai
Amthabhai Yadav on 17th July 1998 at 11:05 hours in the night,
no injury was found by him. He has submitted that even the
doctor has not referred to any bleeding suffered by the victim on
her private parts. However, it is submitted that on the very same
day when the victim was examined by the PW-1 Dr.Ganpatsinh
Ambadanji Charan, he found some bruises and also bleeding on
the private parts of the victim. Thus, it is submitted that there is
contrary medical evidence of the doctors and hence the trial
court has not precisely placed reliance on such evidence.
Learned advocate has also referred to the depositions of two
other doctors, being PW-5 Dr.Manubhai Hirabhai Solanki
examined at Exh.32, who examined the victim on 24 th July 1998
at the Himmatnagar Civil Hospital, wherein the said doctor
though has stated about the injuries on the private parts of the
victim, however, it is surprising that such injuries are found
after a period of one week. He has submitted that the certificate
issued by the PW-5 Dr.Manubhai Hirabhai Solanki on 24 th July
1998 at Exh.34 is identical and verbatim to the note or the
observations made by the PW-8 Dr.Ashwinbhai Joitabhai Patel,
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who is the expert gynecologist who had examined the victim on
25th July 1998 at 00:20 a.m. Learned advocate has also
submitted that the recovery of pieces of bloodstained clothes
from the house of the accused, more particularly, 'dhoti' itself is
doubtful since when the recovery panchnama was carried out,
the house was closed and the accused was not present at the
house. Learned advocate Mr.Raval appearing for the respondent-
accused has further submitted that the serological report also
does not, in any manner, connect the accused with the offence.
Hence, it is submitted that the judgment and order recording
acquittal of the accused may not be disturbed.
8. We have heard learned advocates for the respective parties
at length and also scaled the evidence threadbare. The
respondent-accused was charged with the offences punishable
under Sections 363, 366 and 367 of the Indian Penal Code. It is
alleged by the complainant in his complaint dated 24 th July 1998
that on 17th July 1998, by calling and enticing his daughter to
his house, the accused committed rape on his daughter, i.e. the
victim. Thus, it is not in dispute that for the offence which was
alleged to have been committed by the accused on 17 th July
1998, the complaint came to be registered on 24 th July 1998, i.e.
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after a period of 7 days.
9. Before we discuss the evidence of the victim, it would be
apposite to refer to the medical evidence. The victim was
examined by the PW-1 Dr.Ganpatsinh Ambadanji Charan on the
first occasion on 17th July 1998 at around 12 O'clock in the
afternoon. He has referred to some bruises on vulva of the
prosecutrix and also stated that there was minor bleeding found
by him. He had immediately informed the Idar Police Station
about the said incident. It is interesting to note that this witness
has not issued any certificate on 17 th July 1998 but has issued
the same on 25th July 1998 after he was contacted by the Idar
Police Station. The victim was also examined by the PW-4
Dr.Jinabhai Amthabhai Yadav, examined at Exh.30, on 17 th July
at 11:05 in the night. Accordingly, he issued certificate at Exh.31
dated 17/18th July 1998. This witness is a Medical Officer at the
Himmatnagar Civil Hospital. In the certificate, he has specifically
stated that there was no external marks of injuries found over
face, neck, both arms, chest, abdomen, thigh and external
genital. He does not refer to any bleeding on the private parts of
the victim. It is interesting to note that in his certificate, he has
referred that the patient's relatives refuse for examination and
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has gone away with the patient and said, "we will come with the
police yadi".
10. We may also referred to the deposition of PW-5
Dr.Manubhai Hirabhai Solanki (Exh.32). He has issued the
certificate Exh.34. As per the certificate and as per the
deposition of this witness, the victim was examined by him on
24th July, 1998 at 11:15 p.m. and as per his observation he had
found redness, tenderness and bleeding on touching over the
hymeneal part. It appears that the certificate has been issued on
the basis of the note made by PW-8 Dr.Ashwinbhai Joitabhai
Patel, a full time Gynecologist, who has been examined at
Exh.49, and as per his deposition, he had examined the
prosecutrix on 24th July 1998 at 2:00 hours and he found that
there was some redness on the private parts of the prosecutrix
and on touching the same, bleeding was noticed by him.
According to his opinion, an attempt for rape was being made,
however, the same had remained unsuccessful. Similar is the
evidence of PW-5 Dr.Manubhai Hirabhai Solanki and he has, in
verbatim, issued the certificate Exh.34. From the medical
evidence, it is noticed that the prosecutrix was examined by
three Medical Officers and one expert Gynecologist. The Medical
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Officer PW-4 Jinabhai Amthabhai Yadav (Exh.30), in his report,
did not observe any injuries. Neither he has referred to any
injury nor he has referred any bleeding. He has examined the
prosecutrix on the very same day, i.e. on 17 July 1998 at 11:00
O'clock in the night, whereas, in contradiction, the PW-1
Dr.Ganpatsinh Ambadanji Charan who is examined at Exh.14
and is also a Medical Officer at the Community Health Center,
Idar, has deposed in his evidence that he saw some lacerations
present on the vulva of the prosecutrix, but it is surprising to
note that within a period of 2 hours the report revealed
contradictory findings on the victim. Both the officers are
Medical Officers (Class-II). Further, it is surprising to note that
when the victim was examined after a period of one week, the
other doctors, PW-5 Dr.Manubhai Hirabhai Solanki and PW-8
Dr.Ashwinbhai Joitabhai Patel have found bleeding on the
fourchette region and on touching the fourchette region, it was
observed by both the doctors that the bleeding was present. The
PW-5 Dr.Manubhai Hirabhai Solanki has admitted that the
injuries which are referred by him in the certificate at Exh.34 are
artificially possible and there are instances in minor children of
such injuries. The opinion of Dr.Ashwinbhai Joitabhai Patel,
which is noted by him in his medical evidence, is verbatim same
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to the certificate issued by Dr.Manubhai Hirabhai Solanki at
Exh.34. Thus, the medical evidence appears to be doubtful so far
as the narration of injuries is concerned. It is surprising to note
that the father of the victim, i.e. the complainant, was present on
17th July 1998 when the victim was taken first at the Idar
Hospital and thereafter at the Himmatnagar Civil Hospital.
However, he refused to take the victim to the Gynecologist and
against the advice of the doctor, he went away and informed that
he would be referring the victim after the police yadi. This
behavior and conduct of the complainant is not palatable and
appears to be unnatural. In the complaint dated 24 th July 1998,
which has been registered after a period of one week, the reasons
assigned by him for delay is that he was waiting for his wife, who
had gone away and was not at home, and after consulting with
the family members and the in-laws, and after due deliberation,
the complaint was registered.
11. We have noticed from the case-papers that the wife of the
complainant, i.e. the mother of the victim, is not examined as a
witness, however, in her statement under Section 161 of the
Cr.P.C. which was recorded on the very next date she was
present on 18th July 1998 at her home. From the case-papers
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also, it is noticed that though there were neighbours who could
have thrown light on the evidence, however, they have not been
examined as the witnesses, though their statements were
recorded. At this stage, it would be apposite to notice that the
first Medical Officer PW-1 Dr.Ganpatsinh Ambadanji Charan has
immediately informed the police station about the incident after
he examined the victim. From the deposition of PW-10
Pushpaben Ratilal Trivedi, i.e. the grandmother of the victim,
who is examined at Exh.53, it is revealed that the police had
visited their home on 18 th July 1998 and also inquired from her
as well as the prosecutrix, their relatives and neighbors,
however, surprisingly, no FIR was registered and the same came
to be registered thereafter after a period of one week. This
behavior of the complainant as well as the grandmother, who
had accompanied the victim to the hospital, appears to be
unnatural and the conduct in such a serious offence of both
these witnesses appears to be doubtful and their version is not
palatable. There is another aspect which we have noticed from
the evidence of the PW-7, i.e. the victim. She has stated that she
was studying in Standard-IV in Ravol Primary School and on the
date of the incident, i.e. on 17 th July 1998, since there was a
meeting of the teachers it was a holiday in her school. Thus, the
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narration of the incident on the specific date, i.e. 17 th July 1998,
by the victim itself appears to be false in view of the evidence of
the Principal (i.e. Headmaster of Kamalpur Primary School), who
is examined as PW-9 at Exh.15, wherein he has produced the
school register and the Entry No.1409 of the victim, which
records her date of birth as 28th July 1990 and it has been
specifically stated that the victim had left the earlier school, i.e.
Ravol Primary School one year back and she was studying at
Kamalpur Primary School at Idar. Thus, the version of the victim
that the offence was committed on 17 th July 1998 since there
was holiday in her Ravol Primary School does not inspire
confidence. As per the school leaving certificate Exh.51, the
victim had left the Ravol Primary School on 24 th July 1997, i.e.
exactly one year prior to the date of the incident. It is elicited
from her cross-examination that when the accused had called
her at his house, at that time some repair work was going on in
the house and one labourer was also present and she remained
present at the house of the accused for half an hour, however,
no investigation has been done to verify the actual presence of
the labourer who was present at the time of the incident in the
house of the accused. It is not coming on record, whether the
labourer was present inside or outside the house. In case if any
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investigation was done in this regard, the true picture of the
incident could have come forth. It is also not palatable that the
accused had committed the offence in his house in which the
labourer was already working and doing repairing work of the
house. Similarly, the victim has referred that the accused had
kept the inner-wear with him after committing the offence.
However, the same runs contrary to the version of the PW-10,
i.e. the grandmother of the victim, who had taken the inner-wear
and the clothes of the victim to the hospital and also kept the
same with her for a period of one week and thereafter the same
were handed over to the police at the time of preparing the
panchnama. The victim has also deposed that for 2 hours she
was bleeding profusely when the accused had committed rape on
her. However, as per the panchnama, no blood stains were found
on the cot or in the room of the accused. The serological report
also does not involve the accused. It is also admitted by her, in
her cross-examination that she and her parents had no
communication with the accused and neither she went to the
house prior to the incident nor she had talked to him. It is
surprising to note that it is alleged by her that the accused
asked her to clean the room and after cleaning the room and
also after preparing the rice for him, has thereafter closed the
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doors of the house and had committed rape on her. All the
aforesaid facts, if closely read and appreciated, the evidence of
the prosecution appears to be tainted with doubt and the
prosecution has failed to prove, beyond reasonable doubt, the
offence as alleged against the accused as per the charge.
Though, we do not appreciate the observations made by the trial
court while acquitting the accused to the effect that since the
accused was a teacher and was having a blot-less career, he
could not have committed the offence. At the same time, on the
overall appreciation of the evidence, we are of the opinion that
the prosecution has failed to bring home the charge against the
accused. It is no more res integra that if two views are possible,
the view which has been found favourable with the accused by
the trial court, the appellate court has to be very cautious and
slow in interfering with the acquittal unless the acquittal is
premised on absolutely perverse appreciation of the evidence.
Hence, the present appeal Appeal fails and the same is hereby
dismissed.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
/MOINUDDIN
