CR.A/6/2003 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 6 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAMESHBHAI KIKALABHAI BARIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS FARHANA Y MANSURI for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 24/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) By preferring this appeal, the appellant who was original accused in Sessions Case No. 128/2001, has challenged the legality and CR.A/6/2003 2/7 JUDGMENT validity of the impugned judgment and order dated 29/11/2002 passed by the Ld. Addl. Sessions Judge, Fast Track Court No. 3, Bharuch, [for short 'Ld. Trial Judge'] in the aforesaid Sessions Case. The Ld. Trial Judge was pleased to convict the appellant – accused for the offences punishable under sections 363, 366 and 376 of the Indian Penal Code [IPC] and sentenced to undergo rigorous imprisonment [RI] of 3 years, RI of 5 years and RI of 10 years respectively with fine. Being aggrieved and dissatisfied with the impugned judgment and order, the original accused preferred this appeal. 2. The facts, in short, leading to the prosecution case are as under :- 2.1. On 23/2/2001 at about 6.30 a.m., Hansaben, daughter of Javsing Vestabhai Parmar, was returning to her home after attending the natural call, at that time the appellant – accused along with one Kamleshbhai and Shardaben [both juvenile offenders] intercepted Hansaben and she was kidnapped in a car with intention to compel her to marry against her will and that she may be forced or seduced to illicit intercourse. That at that time Hansaben was aged about 15 years and thus she was kidnapped from her guardianship. As per the prosecution case, the appellant – accused caused sexual intercourse with Hansaben. Navsing Vestabhai lodged police complaint in connection with these offences before the police. The police registered the complaint and commenced investigation. The police recorded statements of material witnesses and collected medical evidence of Hansaben and the accused and after completion of the investigation, the police filed charge-sheet against the accused in the Court of the Ld. Judicial Magistrate First Class, CR.A/6/2003 3/7 JUDGMENT Bharuch. Since the offence was exclusive triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions. The Ld. Trial Judge framed charge against accused at exh. 9. Since the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After completion of the evidence adduced by the prosecution, the Ld. Trial Judge recorded the further statement of the accused under section 313 of the Code of Criminal Procedure [Cr. P.C.], wherein the accused pleaded denial and stated that because of some monetary dispute, he was falsely implicated in this case. The Ld. Trial Judge, after appreciating the evidence on record and after hearing arguments advanced on behalf of both the parties, delivered the impugned judgment and order and the Ld. Trial Judge came to the conclusion that the prosecution proved beyond reasonable doubt the offences charges against the accused and passed order of conviction and sentence as stated above. 3. On behalf of the appellant – accused, learned advocate Ms. Mansuri submitted that the impugned judgment and order delivered by the trial Court is contrary to law and evidence on record. That the basic defect in the prosecution case is the name of the prosecutrix. As per the prosecution case, the name of the prosecutrix is Hansaben. However, considering the copy of birth certificate produced at exh. 34 in this case, the name which is shown is 'Sanudiben' and the date of birth of Sanudiben is shown to be 24/10/1986. Prosecution did not produce any certificate wherein the name of Hansaben appears. That the panchas who are examined by the prosecution relating to panchnama of scene of occurrence and panchnama of recovery of cloth of the prosecutrix, have turned hostile. That the deposition of Hansaben is full of material CR.A/6/2003 4/7 JUDGMENT contradictions. That the prosecution miserably failed to prove that at the time of so called offence, the prosecutrix was aged about 15 years. That the so called motor car in which the prosecutrix was alleged to have been kidnapped, is not seized by the police. That no test identification parade of the accused was held by the police. That the evidence adduced by the prosecution is quite unnatural and without any credibility. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order passed by the trial Court be set aside and the appellant – accused be acquitted from all the offences charged against him. 4. On behalf of the respondent – State, Ld. APP Mr. Bhatt fully supported the impugned judgment and order delivered by the Ld. Trial Judge. It is submitted that by documentary evidence, the prosecution successfully proved that the date of birth of the prosecutrix was 24/10/1986, the incident took place on 23/2/2001. Therefore, at the time of incident, the prosecutrix was below 15 years of age. That considering the deposition of prosecutrix herself together with depositions of her father Javsing Vestabhai and uncle [first informant] Navsing Parmar, it has come on record that Hansaben was known as Sanudiben. That thus the name of Hansaben was 'Sanudi'. That, therefore, there is no reason to doubt the birth registration certificate produced by the prosecution and said certificate relates to the prosecutrix. That prosecutrix Hansaben categorically described the incident, she deposed in clear terms that the accused caused sexual intercourse with her while she was abducted by him and was under his control. That the version given by the prosecutrix in her deposition on oath gets support by medical evidence. Therefore, it is submitted that the appeal be dismissed. CR.A/6/2003 5/7 JUDGMENT 5. The deposition of prosecutrix - Hansaben Parmar is recorded at exh. 20. First of all, considering her deposition, she clearly stated that her nickname is Sanudi. In her deposition she described the incident about her kidnapping by the accused and two juvenile offenders named Kamlesh and Shardaben. She stated that in a Tata Sumo car she was taken to various places. According to her say, accused kept her with him for the period of appropriately two months and during this period, on more than one occasion, the accused caused sexual intercourse with her without her consent. Considering the cross-examination made on behalf of the defence of the prosecutrix, it appears that the defence intended to take up a defence that this was a case of love affairs between the prosecutrix and the accused. However, she outrightly denied the suggestion that the accused was known to her. However, she stated that by name, she was knowing the accused, but denied the suggestion regarding her having any affairs with the accused. Considering her cross- examination, no dispute regarding her age appears to have been raised. Only argument advanced on behalf of the appellant accused is about the name mentioned in the birth certificate exh. 34 that the certificate bears the name of Sanudi; whereas prosecutrix is Hansaben. However, Hansaben herself deposed that her nickname is Sanudiben. Over and above this, considering the deposition of her father Javsing Parmar exh. 30 and deposition of her uncle Navsing Parmar exh. 19, who is the first informant before the police, it clearly transpires that both these witnesses deposed that nickname of Hansaben is Sanudi. 6. In view of above, considering the impugned judgment delivered by the Ld. Trial Judge, it clearly transpires that the Ld. Trial CR.A/6/2003 6/7 JUDGMENT Judge elaborately discussed the depositions of Hansaben – the prosecutrix, her father and her uncle and rightly came to the conclusion that nickname of prosecutrix Hansaben is Sanudiben and the birth certificate exh. 34 relates to her. As emerged from the evidence on record and as appreciated the said evidence in the impugned judgment, we are of the considered opinion that the Ld. Trial Judge rightly came to the conclusion that at the time of incident, the prosecutrix was aged about 15 years. When such is the situation, even if there be any consent from the side of the prosecutrix, the same cannot be considered. However, considering the entire deposition of Hansaben, there is nothing that there was any love affair between herself and the accused and that she ever consented for sexual intercourse. 7. Considering the medical evidence on record in the form of deposition of Dr. Makwana exh. 40 and the certificate exh. 42, it is revealed that there was tear of hymen and that she had undergone repeated intercourses. Thus, the Ld. Trial Judge rightly came to the conclusion that the version of the prosecutrix is supported by medical evidence on record. When such is the situation, the fact that Panchas of the panchnamas regarding the scene of offence and the recovery of cloth of the prosecutrix, turned hostile, or that the car which was used by the accused for kidnapping the prosecutrix was not seized by the police, can never be a ground to acquit the appellant – accused, discarding the cogent and credit worthy evidence adduced by the prosecution to connect the accused with the crime. 8. For the foregoing reasons, we are of the opinion that the appeal deserves to be dismissed. The appeal, therefore, stands dismissed. CR.A/6/2003 7/7 JUDGMENT ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.