CR.A/1223/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1223 of 2006 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 ? =============================================== AJAY VAGHJIBHAI KARENA. Versus STATE OF GUJARAT. =============================================== Appearance : Mr HARSHIT S TOLIA for the Appellant. Mr UR BHATT, APP, for the Respondent-State. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 17/12/2008 ORAL JUDGMENT :- (Per : A. L. DAVE, J.) 1. The appellant was accused before Sessions Court, Rajkot, in Sessions Case No.5 of 2005, facing charges for CR.A/1223/2006 2/10 JUDGMENT offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. He came to be convicted for those offences and was punished as under :- (1) For the offence punishable under Section 363:- Rigorous imprisonment for seven years and fine of Rs.5000/-, in default, to undergo simple imprisonment for three months. (2) For the offence punishable under Section 366:- Rigorous imprisonment for ten years and fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months. (3) For the offence punishable under Section 376 :- Rigorous imprisonment for ten years and fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months. Upon depositing the fine amount of Rs.25,000/, Rs.15,000/ to be paid to the victim as compensation. The judgment and order was delivered on 6th July, 2006 and, by this appeal, the appellant challenges his conviction. 2. The facts of the case, in brief, are that the appellant kidnapped minor daughter of the first informant, Valjibhai Bhagwanbhai Gohil, from his residence at Rohidaspara, Street No.11, Rajkot, around 14.30 hours on 13th August, 2004. He took her to various places and raped her on number of CR.A/1223/2006 3/10 JUDGMENT occasions. The first informant lodged his F. I. R. with Rajkot “B” Division Police Station, on the basis of which offence was registered and investigated. The police, having found sufficient evidence, filed charge sheet in the Court of Chief Judicial Magistrate, Rajkot, who, in turn, committed the case to the Court of Sessions, as the offences with which the appellant was charged were triable by the Court of Sessions. 2.1 Charge against the appellant was framed by the Sessions Court at Exhibit 13, to which he pleased not guilty and came to be tried. The Sessions Court, after appreciating the evidence led before it, came to a conclusion that the prosecution was successful in establishing the charges levelled against the appellant and recorded his conviction by the judgment impugned herein and awarded punishment, as stated hereinabove. 3. Learned Advocate, Mr. Tolia, for the appellant submitted that the Trial Court has failed to appreciate that the age of the prosecutrix is not proved by the prosecution beyond reasonable doubt and, if the age is not proved, there is no question of kidnapping or abduction. He submitted that, if the evidence of the prosecutrix is seen, it is clear that she was a consenting party to the appellant in the entire episode and, therefore, in absence of proof of age, offence of rape cannot be said to have been established by the prosecution. The Trial Court has overlooked this aspect and has recorded conviction and, therefore, the appeal may be allowed. 4. Learned Additional Public Prosecutor, Mr. Bhatt, has opposed this appeal. According to him, there is evidence in CR.A/1223/2006 4/10 JUDGMENT the form of certificate of birth of the prosecutrix which, in terms, indicates that the date of birth of the prosecutrix is 5th March, 1989 and the incident occurred on 13th August, 2004 and, therefore, she was below 16 years of age at the time of the incident. He submitted that there is ample evidence to show that the appellant did have intercourse with the prosecutrix and since she was below 16 years of age, her consent was not a relevant factor. According to him, the Trial Court was, therefore, justified in convicting the appellant. He submitted that the appeal may, therefore, be dismissed. 5. We have examined the record and proceedings in light of the submissions made before us. On examination of the record, we find that there are two documents purporting to be the certificates of birth of the prosecutrix, one is at Exhibit 29 and the other is at Exhibit 43. 5.1 Exhibit 29 is a certificate of birth issued by Rajkot Municipal Corporation on 17.4.2006, which is produced on record by a personnel from Rajkot Municipal Corporation, who is examined at Exhibit 28. He states that the birth was registered on 13th March, 1989. Name of the child born was not entered in the register. Mother's name is Hansaben and father's name is Valjibhai, resident of Rohidaspara, Rajkot. It is, thus, clear from the evidence of this witness and the birth certificate (Exhibit 29) that there is no evidence to show that this certificate relates to the prosecutrix. 6. So far as Exhibit 43 is concerned, it a xerox copy of the certificate of birth purported to be of the prosecutrix. The date of issuance is 13th March, 1989, i.e. the date on which the CR.A/1223/2006 5/10 JUDGMENT birth was registered. It carries name of the prosecutrix in column No.1. The name of mother is indicated to be Hansaben and name of father is indicated to be Valjibhai of Rohidaspara, Rajkot. 6.1 Prima facie, therefore, it would appear that this is a certificate of birth of the prosecutrix, but if we see the evidence led by the prosecution as a whole, it is clear that Exhibit 43 was issued prior to Exhibit 29 and Exhibit 29 as well as deposition Exhibit 28 makes it clear that name of the child born, whose birth is registered, has not been entered in the Register of Birth. It is only shown as a female child. Obviously, the Court can reasonably expect some explanation from the prosecution as to how Exhibit 43 contains name of the prosecutrix. We may also observe that, it is apparent from a look at Exhibit 43 with naked eyes and examining the writing even as a layman, that name in column No.1 is entered in different handwritings than rest of the contents of the said document. 6.2 Apart from this aspect, it is worth a note that Exhibit 43, though it was part of the record when deposition of the first informant was recorded at Exhibit 25, is not even referred to in his deposition. No other witness has referred to Exhibit 43 as certificate of birth of the prosecutrix. The only reference that we find is in deposition of the Investigating Officer, Hardevsinh Ranjitsinh Jadeja (Exhibit 40), where, in paragraph 10, he says that Mark 15/19 is the Serologist's Report, which is Exhibit 43, whereas, in fact, Exhibit 43 is the xerox copy of the certificate of birth. Therefore, Exhibit 43 cannot be said to have been properly proved by the CR.A/1223/2006 6/10 JUDGMENT prosecution and cannot be considered as a valid or acceptable evidence. Even if it is accepted as a piece of evidence, then also, as discussed earlier, it suffers from the defect of interpolation of name of the prosecutrix, which has remained unexplained by the prosecution. 6.3 It may also be noted that according to the first informant, in his deposition, he has stated that he had produced the evidence of certificate of birth at the time of lodging the F.I.R., which probably seems to be Exhibit 43, but, in his deposition, it is not referred to at all and the Investigating Officer also does not refer to Exhibit 43 as the birth certificate, but refers to it as Serological Report. 7. The upshot of foregoing discussion is that two documentary evidence produced by the prosecution at Exhibits 29 and 43 cannot be considered as proof of age of the prosecutrix. Exhibit 29 does not refer to the name of the prosecutrix and there is no other evidence on record to show that Exhibit 29 is the certificate of birth of the prosecutrix. So far as Exhibit 43 is concerned, it is a xerox copy of certificate of birth, which has not been referred to by the first informant, the father of the prosecutrix, in his deposition and has been referred to as the Serological Report by the Investigating Officer, the contents of which are not proved and, as such, it cannot be looked into. Apart from that, even if it is looked into, it remains unexplained as to how it carries name of the prosecutrix when even as per the evidence of the personnel from Rajkot Municipal Corporation (Exhibit 28), name of the child was not entered into the Register of Birth maintained by the Corporation. And most significantly, both the pieces of CR.A/1223/2006 7/10 JUDGMENT evidence are adduced by the prosecution. 8. Now, therefore, the Court will have to examine if the prosecution has led any other evidence to indicate the age of the prosecutrix. That evidence is in the form of deposition of the first informant, father of the prosecutrix, Valjibhai Bhagwanjibhai Gohil. Despite a close scrutiny of his evidence, we could not find any reference to certificate of birth. All that he states that Hetal was born in 1989 and she had completed 15 years of age and was running the 16th year at the time of the incident. He is subjected to cross-examination to test his veracity. During cross-examination, he states that he married about 20 to 22 years back. He has a son and a daughter, the prosecutrix. According to him, the son is elder. He further states that after his marriage, one daughter expired, thereafter, about five to six years from the date of marriage, a son was born. Thereafter, there were two daughters, who expired and, then, the prosecutrix was born. He says that he is unable to state as to what was the time gap between birth of his son and his daughter, the prosecutrix. He says that the birth of the prosecutrix was got registered by him. 8.1 The evidence on the age of the prosecutrix, as emerging from examination-in-chief of the first informant, is only to the effect that she was born in 1989. He does not give any details of date of birth. This aspect is tested on the touch stone of cross-examination and the above aspects are indicated. It is stated by him that he married about 22 years prior to the incident, his first daughter expired and then his son was born after about five to six years from the date of his marriage. If his marriage is considered to have taken place twenty two CR.A/1223/2006 8/10 JUDGMENT years prior to the incident and if his son was born five years thereafter, the age of the son would be 17 years. Thereafter, he became father of two daughters, who expired. Taking a time gap of a year and a half, the two daughters, if alive, would have been aged fifteen and a half and fourteen years and, if thereafter the prosecutrix was born within the span of a year and a half, the prosecutrix would have been aged twelve and a half years, which is nobody's case and is contrary to his version in the examination-in-chief that the prosecutrix was born in 1989. The resultant effect is that the ocular evidence coming from the father of the prosecutrix itself is self-contradictory and cannot be considered as reliable or conclusive to decide the age of the prosecutrix. He does not state the age of his son either. 8.2 Apart from the oral evidence of the first informant, there is deposition of the prosecutrix, but we can hardly give any authenticity to her version because she cannot be a witness on this aspect. 9. It has come in evidence that the prosecutrix was admitted to school and she studied upto 7th Standard, but the prosecution has not adduced any evidence in the form of any certificate from the school, which could have indicated her date of birth as entered in its record. 9.1 The prosecution has not led any evidence in the form of ossification report, which could have shown even the approximate age of the prosecutrix. 10. The result is that the two birth certificates are not CR.A/1223/2006 9/10 JUDGMENT sufficient to prove the age of the prosecutrix. The oral evidence of the first informant, the father of the prosecutrix, is also not sufficient to prove the age of the prosecutrix and there is no other evidence on record to prove the age of the prosecutrix. 11. If the age of the prosecutrix is not proved properly, it is difficult to uphold the conviction on the basis that the prosecutrix was below 16 years or for that matter below 18 years. The evidence of the prosecutrix, if seen, would clearly indicate that, though she alleges that the appellant forcibly took her away, she moved with him at various places for a long time without any complaint to anyone even though she had a large number of opportunities to do so. She had moved with the appellant to Chotila, Bagdana, Mahuva, Kotda, Pavagadh, Ambaji, Abu, Navsari and then came back to Amreli. This has happened over a period of about a month and a half. The medical certificate indicates that she was used to intercourse and her secondary sexual organs were well developed. As an icing on the cake, it comes in evidence of the Investigating Officer that the prosecutrix, in her statement, had stated before him that she had a love affair with the appellant for a period of three years. 11.1 We may also take notice of the fact that even after this prosecution, the appellant and the prosecutrix eloped in the month of July, 2006, as recorded in the judgment of the Trial Court. It also appears that the appellant is a young man aged about 21 years and is a bachelor. 12. As a result of the foregoing discussion, we are of the CR.A/1223/2006 10/10 JUDGMENT view that the prosecution failed to prove the age of the prosecutrix and, if the age of the prosecutrix is not proved, it is difficult to conclude either that she was below 18 years of age or that she was below 16 years of age. The evidence makes it clear that there was a love affair between the appellant and the prosecutrix three years prior to the incident, which seems to have been continued even after the prosecution. The prosecutrix, though alleges that she was subjected to forced intercourse, she has not offered any resistance or raised any cry for help at any point of time. She has not even tried to escape, though she had opportunities on number of occasions during her stay with the appellant at number of places. Therefore, the possibility of the prosecutrix being a consenting party cannot be ruled out and the defence taken by the appellant in his statement under Section 313 has to be given due weightage. 13. We are, therefore, of the view that the conviction recorded by the Trial Court cannot be upheld and deserves to be set aside. The appeal merits acceptance and the same is accepted. The judgment and order of conviction and sentence rendered by Trial Court on 6th July, 2006 in Sessions Case No. 5 of 2005 is hereby set aside. The appellant is acquitted of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to him. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt