ASHWIN CHATURBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) LEARNED Additional Public Prosecutor Ms. Manisha L. Shah waives service of Rule on behalf of the respondent - State and learned Advocate Ms. Shilpa R. Shah waives service of Rule for the respondent complainant. In the facts and circumstances of the case, the matter is taken up for hearing today.

(2.) AS common question of law is involved in all the three Revision Applications, they are heard together and disposed of by this common judgment.

(3.) THE main contention in all the Revision Applications preferred by the petitioners is that as the learned Judge has committed gross error in not appreciating the fact that the charge framed against the petitioners is against the provisions of law inasmuch as S.218 of the Code mandates that the separate charge is required to be framed for distinct offences. The learned judge has also erred in not correctly applying S.223 to the facts of the present case. On perusal of S.223 of the Code, it becomes clear that S.223 provides for categories of the persons who may be charged jointly. The facts of the present case do not attract any of the said categories as enumerated in subS.(a) to (g) of S.223 so as to enable the learned Judge to charge the petitioners and accused jointly. It is submitted that the learned judge has not considered the proviso to S.223 of the Code. The proviso enables the Court to try all the persons charged with separate offences. However, it is the liberty of such accused persons to make the application for joint trial. The learned Judge ought to have considered the factual aspect of the case because as per the prosecution case, 5 different incidents of rape are alleged to have taken place against 6 accused persons. The first incident took place on 11-9-2007 at the PTC College wherein accused No. 1 to 3 were involved. The second incident took place on 28-09-2007 at the PTC College wherein accused No. 2, 3 and 4 are also alleged to have been involved. The third incident at PTC College took place on 01-01-2008 wherein accused Nos. 2, 4 and 5 are alleged to have been involved. The fourth incident took place on 11-01-2008 at Village : Kimbuva wherein accused Nos. 2, 4 and 5 are alleged to have been involved and the fifth incident took place on 25-01-2008 at PTC College wherein accused No. 6 is alleged to have been involved. On perusal of the aforesaid dates, it becomes clear that all the accused were not involved in all the incidents. This fact was overlooked by the learned Judge while framing the charge vide Exts. 29 on 13-06-2008. It is submitted that even the learned Special Judge has not taken into consideration the case of the prosecution in the charge sheet. Even though the prosecution did not think it fit to invoke S.1208 of the Indian Penal Code ("IPC", for short) in the charge sheet as there was no element of conspiracy or meeting of minds so as to attract S.107 of IPC. However, the learned Judge proceeded to add S.120-B of IPC in the charge framed vide, Exts. 29 to the present case. The learned Judge has also erred in interpreting the phrase "in the course of the same transaction". While considering the aforesaid aspect, the learned Judge has considered all the five independent incidents to be part of one common transaction. Even though there was no evidence to that effect, it was held that there was commonality of purpose and design and, therefore, there was a continuous effect. The learned Judge has overlooked the fact that even the complainant had not stated in the complaint or in the further statement and not alleged that the accused had the common intention, and in support of each other to achieve the common goal in collusion/conspiracy with each other, they jointly committed the offences. Thus, the learned Judge has committed error in coming to the conclusion that all the incidents can be said to have arisen from the same transaction. It is submitted that the expression "same transaction" means different incidents which are interwoven in such a manner that one transaction is dependent upon the other and thereby make one transaction, and in the present case, for each of the alleged instances separate and independent complaints could have been filed and there was no reason for the complainant to wait till the incident dated 25-01-2008 because there was no connection between the first incident and last incident and likewise the incidents in between which were alleged to have happened between the first incident and the last incident and, therefore, the framing of the joint charge and joint trial itself is defective.