H.H. Mehta, J.
1. The original accused of Sessions Case No. 400 of 1993 which was pending on the file of Learned Principal City Civil and Sessions Judge, Ahmedabad (who will be referred to as the Learned Judge of the trial Court hereinafter for the sake of convenience), has by preferring this appeal under Section 374 of Cr.P.C. challenged the legality and validity of the judgement Exh. 41 of conviction and sentence rendered by the Learned Judge of the trial Court, on 4.5.1994 in aforesaid Sessions Case No. 400 of 1993.
2. The brief facts leading to this appeal in a nutshell are as follows:-
2.1 The complainant Gangaben PW-1 who is the daughter of Kasniben Dahyabhai is residing with her husband in the hut of her mother Kasniben situated in Vadi Vas, Near Shahalam Tolnaka, Ahmedabad. One another daughter of Kasniben named Shantaben is of an unsound mind. According to he prosecution, this Shantaben who is a mentally retarded lady is the victim of rape committed by the present appellant. It is the case of the prosecution that the house of the complainant Gangaben and her mother and house of accused are situated in one locality behind a shop of Radhakrishna Kirana Stores.
2.2. With regard to the incident, it is the case of the prosecution that on the night in between 3.6.1993 and 4.6.1993, the complainant alongwith her mother Kasniben was sleeping in one handcart near the shop of Radhakrishna Kirana Stores and at that time Shantaben was sleeping in one another hand cart near the cart in which complainant and Kasniben were sleeping. At about 2:00 a.m. in the night, the complainant and her mother Kasniben woke up for a call of nature i.e. to urinate. At that time, both of them had not seen Shantaben in the nearby hand cart. It is the case of the prosecution that complainant Gangaben and her mother Kasniben both saw that accused was committing an offence of sexual intercourse with Shantaben on the otta of shop of Radhakrishna Kirana Stores. On seeing the complainant and her mother Kasniben, the accused tried to run away but at that time the accused was caught hold by the complainant and her mother and loongi worn by the accused was snatched away by the complainant. At that time, the complainant had beaten the accused with her fist blows, they raised shouts and later on persons who were sleeping nearby woke up and assembled there. It is also the case of the prosecution that when it was asked by Kasniben, the accused admitted before the complainant that he had committed a mistake and he might be pardoned. The accused while trying to run away, had snatched away bedsheet from one boy who was sleeping nearby the place of incident. It is the case of the prosecution that thereafter relatives of the accused including the wife of the accused had come to pick up the quarrel with the complainant. At that time, there was a scuffle between Kasniben and wife of accused and in that scuffle blouse of Kasniben was torn out. Thereafter Gangaben and Kasniben both had gone to Kagdapith Police Station to lodge a complaint against the accused. The Officers of Kagdapith Police Station directed Gangaben and Kasniben to lodge the complaint before the Danilimda Police Station as the place of incident was falling within the jurisdiction of Danilimda Police Station. Thereafter, the complaint of Kasniben was lodged in Police Station but the Officer in charge of the Danilimda Police Station did not register the complaint for the offence of rape. According to the say of the complainant, the officer who was present in the police station had told them that if they would lodge a complaint for the offence of rape then the reputation would be at stake and the other side may file a case in the Criminal Court. It is further the case of the complainant that the Police did not register the offence of rape. Thereafter, the complainant and Kasniben took advise of advocate and as per the advise of the advocate, Gangaben filed a private complaint in the Court of Learned Metropolitan Magistrate on the next day i.e. 4.6.1993. That complaint came to be registered as Inquiry Case No. 77 of 1993. That complaint was sent for police investigation under Section 156(3) of Cr.P.C. On receiving the complaint from the Court of Learned Metropolitan Magistrate, the Danilimda Police Station registered that complaint as M. Case No. 15 of 1993. The investigation of the offence was handed over to PSI Shri H.K. Patel. Practically he investigated the case and subsequently the investigation was kept pending for receiving the report from Forensic Science Laboratory. Thereafter, that investigation was entrusted to PSI Shri Jadeja and ultimately Shri Jadeja chargesheeted the case against the accused for offence punishable under Section 376 IPC in the Court of Learned Metropolitan Magistrate on 1.10.1993. That chargesheet came to be registered as Criminal Case No. 2844 of 1993. Thereafter, the Learned Magistrate committed the case under Section 209 Cr.P.C. to the Sessions Court.
2.3. The Learned Additional Sessions Judge, Court No. 23, City Civil Sessions Court, Ahmedabad framed a charge against the accused for one offence i.e. under Section 376 of IPC on 14.9.94. On recording the plea, the accused pleaded not guilty to the charge and therefore the prosecution examined in all 6 witnesses. During the trial, the prosecution tendered certain documentary evidence also. On evidence being declared as closed, the Learned Judge of the trial Court recorded further statement of accused under Section 313 of Cr.P.C. Practically he has denied the incident in his further statement and in last question with regard to any additional reply is to be given or not, the accused filed his written statement Ex. 37. It is the defence of the accused that on the night in between 3.6.93 and 4.6.93, he was sleeping outside his hut with his family members and at about 2:00 a.m. he woke up for urination and therefore by passing through Vadi Vas he came on the road for urination and at that time he heard the shouts of Gangaben and Kasniben and both were giving abuses to the victim Shantaben. A defence is advanced that as soon as he stood up after urination, Kasniben inquired from accused as to why he came near to the place where ladies were sleeping and scolded the accused that he should go for urination away from the place where the ladies were sleeping. The accused replied to Kasniben that as all the persons were sleeping he did not go to a distant place and he had no idea that Shantaben would wake up from the hand cart. He also replied that he did not get woke up Shantaben and he did know nothing as to why Shantaben woke up. With regard to that incident, there was an exchange of abuses in between Kasniben and accused and at that time one Bachiben, wife of accused and about 60-70 persons who were sleeping on the otta of shop of Radhakrishna Kirana Stores, nearby gathered, there was a scuffle and in that scuffle blouse of Kasniben was torn out. Kasniben lodged a complaint Exh. 27 against present accused and his wife Bachiben. That complaint came to be registered as C.R. No. II. 117 of 1993 for offences punishable under Section 323, 294(b), 427, and 114 Cr.P.C. In connection wih that case, accused and his wife both were arrested at 3:30 a.m. and thereafter they were released on bail. Ultimately, on 30.11.1993 a chargesheet was filed against the accused and his wife in the Court of Metropolitan Magistrate, Court No. 4, Ahmedabad. Chargesheet filed against them came to be registered as Criminal Case No. 4267 of 1993. In that case both the accused pleaded guilty to the charge and each of them was convicted to undergo simple imprisonment for period till rising of the Court and to pay a fine of Rs. 150/- and in default of fine to undergo further Simple Imprisonment for 15 days. It is the defence of the accused that because of that incident with regard to tearing of blouse of Kasniben in the scuffle between Kasniben and Bachiben, the complainant had entertained enimical relations as a result of which she lodged a false private complaint in the Court.
3. The Learned Judge of the Trial Court after appreciating the evidence laid by the prosecution and after considering written statement Exh. 37 and on going through the documents produced by accused in his defence and after hearing the arguments of the Learned Advocates for both the parties came to a conclusion that prosecution has proved beyond reasonable doubt, the case of committing rape i.e. offence under Section 376 IPC against accused and therefore by rendering the judgment Exh. 41 dated 4.5.95, the Learned Judge of the Trial Court convicted the accused under Section 376 IPC and after hearing the accused on the point of quantum of sentence he sentenced the accused to undergo rigorous imprisonment of 7 years and to pay a fine of Rs. 500/- and in default of fine to undergo further rigorous imprisonment for 3 months. The accused was on bail, therefore on the date of rendering judgement, he was taken into custody.
4. Being aggrieved against and dissatisfied with the said judgement of conviction and sentence, the accused has preferred this present Criminal appeal.
5. At the outset of hearing, the Learned Advocate Shri P.M. Vyas submitted that most major part of the sentence has been undergone by the accused and now only about 2 or 3 months are left over for the accused to undergo and therefore looking to this urgency, this matter is taken up today for final hearing.
6. I have heard Mr.P.M. Vyas, Learned Advocate for the appellant and Mr. H.L. Jani, Ld. APP for the respondent - State in detail at length. Shri P.M. Vyas and Shri H.L. Jani both have taken me through the evidence of the witnesses examined by the prosecution and also the documentary evidence led by both the parties.
7. In this case, accused is charged with a serious offence of committing rape with a mentally retarded lady who is not able to understand as to what is good and what is wrong.
8. Mr. P.M. Vyas, Ld. Advocate for the appellant has submitted that victim Shantaben is presented by the prosecution as mentally retarded lady. The prosecution has not examined the persons residing in the locality in which Shantaben is residing with her mother, on the point that she is mentally retarded lady. The Investigating Officer could have recorded the statements of nearby neighbours on this point. He has further argued that the Learned Judge of the Trial Court ought to have accepted the defence advanced by accused in his written statement Exh. 37 which is at Page 169 of the paper book. His main thrust of arguments is that looking to the fact that complainant had to lodge a private complaint in the Court suggests that incident, as alleged by the prosecution has never happened because as per the case of the prosecution, the mother of victim i.e. Kasniben PW2 and Gangaben had gone to Danilimda Police Station at the earliest point of time but their complaint was not taken down. The prosecution has explained that Police informed them that it was not good for them to lodge a complaint with regard to offence of rape as it would tarnish the prestige of their family and therefore their complaint was not taken. Mr. Vyas has submitted that this is not possible and probable. The Police could have certainly taken down the complaint for this type of serious offence and they could have started investigation, immediately on lodging of the complaint. He has further argued that prosecution mainly relies on only 2 witnesses (1) Gangaben and (2) Kasniben. As per the evidence of Kasniben both had seen actual happening of criminal act of committing rape with victim Shantaben by accused. They are interested persons and their evidence should not be taken into consideration. He has further argued that on medical examination being conducted on victim, no external injury was found on private part of Shantaben and hence offence could not have been said to have taken place as alleged by the prosecution. He has further argued that immediately after lodging of the complaint, the Police did not take Shantaben to the hospital for medical examination. As per his arguments, this is an attempt of well planned attempt to file a private complaint against the accused. Another ground taken by Mr. Vyas is that in this behalf Mr. Jadeja, Investigating Officer is not examined and therefore the prosecution has not proved the case beyond reasonable doubt and therefore this appeal be allowed and accused be acquitted. While summing up the arguments he has also prayed for a mercy on the point of sentence because the accused has practically undergone the sentence of 6 years and now only sentence of 1 year is left out for him to undergo.
9. Mr. H.L. Jani, Ld. APP has taken me through evidence of Kasniben Dahyabhai PW2. He has argued that if we read the cross examination of these 2 ladies Gangaben and Kasniben, we find that these 2 ladies are eye witnesses to the incident. For them there is no reason to involve accused for this type of serious offence. From cross examination there does not appear to be any enemity in between accused and complainant and therefore the Learned Judge of the Trial Curt has rightly placed reliance on the evidence of these 2 eye witnesses. He has argued that there is no infirmity in the judgment and therefore appeal be dismissed confirming judgement of conviction and sentence.
10. On the point with regard to mental condition of Shantaben, the prosecution has examined 2 doctors, one is PW. 3 Dr. Suresh Popatlal Desai who is examined at Exh. 19. He had examined victim Shantaben on or about 17.6.93 and thereafter again on 11.2.95. He has deposed in detail as to what type of questions were put to Shantaben and what type of answers were given by Shantaben to him and the manner in which she replied the answers and ultimately he prepared a report at Exh. 20 which is not so seriously challenged by the accused. He has also proved certificate Exh. 21 issued by Dr. Sulochanaben Munim. The prosecution has examined another Psychiatrist PW. 4 Dr. Pallaviben U Kapadia who is examined at Exh. 24. She is having post graduate degree of M.A. with Psychology as well as a degree of D.M.S. and therefore she is an expert on the subject. She had carried out tests for victim Shantaben and proved back portion of a certificate Exh. 20. If we read cross examination of this witness Dr.Kapadia by defence lawyer for accused, we find that she has been cross examined for very few questions on which answers are given in about 4-5 lines. Therefore, evidence of PW. 4 Dr. Kapadia is not challenged on the point with regard to examination of victim Shantaben with regard to her mental condition. Dr. Kapadia has also proved back portion of certificate Exh. 20 issued by PW. 3 Dr. Desai. There is no reason to disbelieve these 2 doctors who examined the victim Shantaben. There is no reason for Dr. Desai to give a certificate Exh. 20 which is issued for victim Shantaben. Thus, there is an ample evidence on record to show that the victim Shantaben was mentally retarded lady.
11. On the point with regard to actual commission of offence of rape, prosecution has placed reliance on evidence of complainant PW. 1 Gangaben and her mother PW. 2 Kasniben who both had seen actual commission of offence. Though it was a night time, there is no dispute with regard to identity of accused. Accused is residing in the same locality in which complainant is residing. There is also no challenge with regard to identity of accused. On the contrary from written statement Exh. 37, it reveals that presence of accused on the spot is admitted. The presence of Shantaben is also admitted. Even presence of eye witnesses Gangaben and Kasniben is also not challenged. As these 2 lady witnesses, Gangaben and Kasniben had seen accused committing a crime of rape, the accused tried to run away. And thereafter wife of accused and accused came there and there was an exchange of abuses between them and later on there was a scuffle in which blouse of Kasniben was torn out for which a criminal complaint was lodged. It is interesting to note that in this criminal complaint, both the accused pleaded guilty to the charge and they underwent sentence of simple imprisonment till rising of the Court and paid the fine and therefore now there is no question with regard to presence of accused at the spot. The accused has tried to explain as to why this type of serious charge is levelled against him. According to the accused he was sleeping outside his hut and at about 2:00 a.m. when he woke up for urination purpose, he passed through Vadi Vas and came on the road and at that time Gangaben and Kasniben scolded him as to why he had come near the ladies. Because of this incident, as argued by Shri Vyas, the complainant has lodged a private complaint. No lady would lodge such a serious complaint against accused for a trivial incident and that too involving the chastity of Shantaben, affecting her virginity and therefore the Learned Judge of the Trial Court has rightly considered the defence and refused to accept the same in his judgement.
12. Merely because Gangaben and Kasniben are near relatives of victim Shantaben, their evidence should not be discarded. It is a well settled principle of law that a near relative will try to see that the real culprit may not go unpunished and therefore when both had seen the incident and when there is no serious cross-examination about the presence of these witnesses on the sport, their evidence is rightly accepted by the Learned Judge of the Trial Court.
13. One of the contentions of Mr. Vyas is that why a private complaint has been lodged by Gangaben. It can be noted that in the cross examination of Kasniben, it has been revealed that Police told Kasniben that if she would lodge a compliant with regard to rape then she would be required to go to jail and therefore she was required to give a complaint with regard to scuffle and therefore looking to the strata and social status of the poor complainant and her mother who have place for sleeping in hand-carts, Police might not have taken a compliant as desired by the complaint and therefore immediately on the next day Gangaben filed her private complaint in the Court. It is not compulsory to lodge a complaint in police station only. There is no bar for a citizen to lodge a complaint in the Court. Merely because Police did not take any action against the complaint as stated by Kasniben, it cannot be inferred that incident is doubtful.
14. Shri Vyas has argued that the Investigating Officer Mr. Jadeja is not examined and thereby the defence of the accused is prejudiced. The prosecution has examined the Investigating Officer Mr. Hareshkumar Khodabhai Patel at Exh. 30. He was in charge of the case from the beginning of the investigation. As per his evidence, he practically completed the investigation and the case remained at the stage of receipt of report from Forensic Science Laboratory. Immediately on receipt of that reports, Mr. Jadeja filed a chargesheet, finding that sufficient evidence has been collected against the accused. In view of this, Mr. Jadeja was a formal witness on the point with regard to filing of chargesheet in the Court. Major part of the investigation was conducted by PW. 5 Mr. Patel and therefore non-examination of Mr. Jadeja will not affect the case from root. The Court has to examine and appreciate the evidence in its totality. It should not be appreciated in isolation by taking few words from here and there. The Learned Judge of the Trial Court has appreciated the evidence keeping in mind the well settled principles of law with regard to appreciation of evidence. Mr. Vyas is unable to point out as to how the appreciation can be said to be perverse or illegal. There is no infirmity in the judgement.
15. I have perused the judgement rendered by the Learned Judge of the Trial Court. He has assigned possible and plausible reasons. To arrive at a different conclusion, there is no other material on material to defer from the view taken by the Learned Judge of the Trial Court.
16. In view of the discussions made hereinabove, the judgement of the Trial Court which is assailed in this appeal is found to be legal and proper. The reasons assigned by the Learned Judge of the Trial Court are accepted by this Court. When this Court is in agreement with the reasons assigned by the Learned Judge of the Trial Court, it is not necessary to reiterate the same reasons in this judgement. Still however, this Court has appreciated the evidence afresh and come to a conclusion that the case is proved against the accused beyond reasonable doubt and therefore this appeal is devoid of merits and accordingly this appeal is dismissed.
17. Before passing the final order the prayer for mercy is also considered by this Court. The nature of offence is so serious that no lenient view should be taken. In this case, the accused has committed a rape with a mentally retarded lady who was helpless because she was unable to understand as to what is wrong and what is right. Under the circumstances, this is a fit case in which no leniency should be shown by this Court and accordingly the prayer for mercy is negatived by this Court. In view of this, this appeal deserves to be dismissed and accordingly it is dismissed.