[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1450 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 MS [ENTITY] for the Opponent(s)/Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 24/04/2015 [ENTITY]
[CASE NUMBER] 1. The present appellant has preferred this
appeal under [SECTION] of the [ACT], against the judgment and order of conviction and sentence dated 8.7.2010 passed by the learned Addl. Sessions Judge & Presiding Officer, 3rd Fast Track Court, Camp at [ENTITY], in [CASE NUMBER], whereby, the learned trial Judge has convicted the appellant under [SECTION] of [ACT] and sentenced to undergo R/I for three years and to pay a fine of Rs. 3000/-, in default, to undergo further S/I for one month, which is impugned in this appeal.
2. The brief facts of the prosecution case is as under:
2.1 That the on 12.10.2008, between 9.00am to 10.00am, when all the family members have gone for labour work, and the prosecutrix was all alone at the house, at that time, appellant-
accused had kidnapped her by giving false promise to marry with her. When they came to know about missing of their girl, they enquired at the village of appellant but they could not find her. Due to their relation, the appellant off and on coming to their house and they found his photograph from the purse of prosecutrix. He was also making telephone calls from the nearby area. On getting his telephone number, a phone call has been made, to which, the appellant-accused had [CASE NUMBER] threatened the complainant and switched off his telephone number. The accused had developed intimacy with the prosecutrix, which resulted into taking away of the minor girl on the aforementioned day with an intention to have illicit intercourse with her.
2.2 On inquiring about the prosecutrix, her whereabouts were not found, therefore, a complaint was lodged with [ENTITY] Police Station being [CASE NUMBER]. The Investigating Officer, on completion of the investigation, submitted charge-sheet before the learned Judicial Magistrate first Class, [ENTITY]. As the case was exclusively triable by the Court of Sessions, the learned Magistrate, committed the case to the Court of Sessions, which was numbered as [CASE NUMBER].
3. The accused was charged vide Ex. 2. The appellant - accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses:
1. Dr.[ENTITY] Ex. 7
2. [ENTITY] Ex. 18 [CASE NUMBER]
3. [ENTITY] Ex. 19
4. [ENTITY] Ex. 27
5. [ENTITY] Ex. 30
6. [ENTITY] Ex. 31
7. Prosecutrix Ex. 32
8. [ENTITY] Ex. 34
9. [ENTITY] Ex. 48
10. [ENTITY] Ex.50
5. The prosecution has also produced the following documentary evidence before the trial Court.
1. Complaint Ex. 20
2. Panchnama of scene of offence place Ex. 49
3. Panchnama of persons of prosecutrix Ex. 41
4. Panchnama of clothes of prosecutrix Ex. 39
5. Panchnama of clothes of accused 42
6. Medical certificate of victim Ex. 9
7. Medical certificate of accused Ex. 11
8. Birth certificate of victim Ex. 21
9. [ENTITY] Ex. Ex. 51
10. Receipt of FSL Ex. 52
11. Letter by FSL to PI [ENTITY] Ex. 53
12. FSL Report Ex. 54
13. Serological report Ex. 55
14. Report of PSI to Police Station Ex. 56
6. Thereafter, after examining the witnesses, [CASE NUMBER] further statement of the appellant-accused under [SECTION] of [ACT] was recorded in which the appellant-accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. Sessions Judge & Presiding Officer, 3rd Fast Track Court, camp at [ENTITY], vide impugned judgment and order dated 8.7.2010 held the appellant - accused guilty to the charge levelled against him under [SECTION] of [ACT] and convicted and sentenced the appellant accused, as stated above.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge & Presiding Officer, 3rd Fast Track Court, Camp at [ENTITY], the present appellant has preferred this appeal.
9. Heard Mr. [ENTITY] learned advocate for the appellant and Ms. [ENTITY] learned APP for the respondent-State.
10. Mr. [ENTITY] learned advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the [CASE NUMBER] offence under [SECTION] of [ACT] is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. [ENTITY] learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside. Mr. [ENTITY] submitted that the impugned judgment and order passed by the learned trial Judge convicting the appellant, is even otherwise illegal, unjust, improper and deserves to be quashed and set aside so far as it relates to the conviction of the appellant accused for the offence under [SECTION] of [ACT].
11. Per contra, learned APP Ms. [ENTITY] has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. [ENTITY] learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal does not deserve to be allowed.
[CASE NUMBER] 12. I have gone through the oral as well as
documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Mr. [ENTITY] further submitted that the parties have settled the dispute. She was 16 years of age at the time of incident. If the consent was there and the girl was 16 years of age, it would not amount to an offence under [SECTION] of [ACT]. This is a settled position as far as Pre-amended Act is concerned. In this case, the incident occurred on 14.10.2008. Mr. [ENTITY] learned advocate further submitted that the parties have got married with each other and the affidavit to this effect is also filed by appellant as well as victim which is produced on record and both are at present living together. I am not delving into further details. It is evident from the fact that the girl eloped with the accused who was fatally in love with her. They moved from place to place which means that there was consent, and therefore, the learned trial Judge has fallen in error in convicting the accused. Further development would suffice for the benefit of the appellant as the parties are now staying together as husband-wife. It is the say of the appellant in his statement under [SECTION] of [ACT] that they [CASE NUMBER] were in love and they were knowing each other since long would ennure for the benefit of the appellant. The decision of the Apex Court in the case of [PRECEDENT] and the decision in the case of [PRECEDENT] would ennure for the benefit of the appellant. The factum of her going with the accused is admitted. and when she has rightly gone with the accused from one place to other and they were in love, and therefore, no offence under [SECTION] of [ACT] is made out against the accused, and therefore, the impugned judgment and order of conviction and sentence requires to be quashed and set aside as the appellant-accused and prosecutrix have married with each other and they are staying as husband and wife. The affidavit filed by them is taken on record.
13. In view of the aforesaid discussion, this Court is of the view that the Court below has committed a serious error in law as well as on facts in convicting the accused for the alleged offence under [SECTION] of [ACT]. The findings recorded by the Trial Court are not only unjust but also improper and hence, the judgment and order dated 8.7.2010 passed by the learned Additional Sessions Judge & Presiding Officer, 3rd [CASE NUMBER] Fast Track Court, camp at [ENTITY] in [CASE NUMBER] requires to be quashed and set aside.
14. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 8.7.2010 passed by the learned Addl. Sessions Judge & Presiding Officer, 3rd fast Track Court, camp at [ENTITY] in [CASE NUMBER] is hereby quashed and set aside. Bail and bail bond stands cancelled. As he is on bail, he need not to surrender before the Jail Authority as the punishment is quashed. Fine if paid, be refunded to the appellant-accused. R & P to be sent back to the trial court.
([ENTITY], J) mandora