CR.A/1216/2004 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1216 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ===================================================== 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 ? ===================================================== NATVARBHAI JAGJIVAN GOHIL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : THROUGH JAIL for Appellant(s) : 1,MR NN PRAJAPATI for Appellant(s) : 1, MR. BHATE APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/03/2008 ORAL JUDGMENT CR.A/1216/2004 2/9 JUDGMENT 1. Applicant-original accused No.1 was charged with offences punishable under Sections 363, 366 & 376 of the Indian Penal Code. By the impugned judgment and order dated 30th June, 2004 passed by learned Additional Sessions Judge, Vadodara in Sessions Case No.252 of 2003, he was convicted for the said offences and sentenced to RI of 3 years for offence punishable under Section 363, 5 years for offence punishable under Section 366 and 7 years for offence punishable under Section 376 of the IPC. All the sentences were, however, made concurrent. 2. As per the charge, Exh.1, allegations against the appellant were that on 15th June, 2003 at 15.00 hours, he had kidnapped minor daughter of Jayantibhai aged about 14 years and 5 months with the intention of forcing her to get married to him. He had also intercourse with her against her wish. He was thus alleged to have committed offences punishable under Sections 363, 366 and 376 of IPC. CR.A/1216/2004 3/9 JUDGMENT 3. The victim girl PW-11 was examined at Exh.21. She stated that she knew the appellant since he used to come to her village with the truck carrying manure. The appellant used to meet her frequently and used to bring presents for her such as bangles, flowers and dresses. He had also proposed to her. This had gone on for about six months before the incident. She had met the appellant behind her house. She, however, had told him that if her parents came to know about her affair, they would beat her. She, further, stated that in the nearby forest, the appellant had intercourse with her on two to three occasions though, she was not willing. On the date of the incident, the appellant had come on a bicycle and called her behind her house. He had come to take her away. She had gone near the bushes and met the appellant and told that she is not willing to accompany him. The appellant threatened her that he will commit suicide, upon which she sat on his bicycle and they went to different places such as Shuklatirth, Shahpur, Noda village and Dhanora. They spent the night at the Shuklatirth Bus-stand and the appellant took her behind the bus-stand and had CR.A/1216/2004 4/9 JUDGMENT intercourse with her. He spent the next day in the field where bananas were grown. There again they had intercourse. After few days, she came back to her house. Her mother informed the Sarpanch about the incident. They, thereafter, lodged the complaint with the police. 3.1 In the cross-examination, she stated that whenever her parents used to ask her about new dresses, she would tell that she had bought them from her own money. She had never told her parents that she had an affair with the appellant. She never complained to anyone about previous incidents. She had never shouted and had voluntarily gone and had left on the bicycle at night. 4. Dr.Anil Kumar Chaudhary- PW13 (Exh.27) was a Medical Officer of Amodh Primary Health Centre, who had examined the appellant. He had not found any marks of the injuries on his body or on his private parts. CR.A/1216/2004 5/9 JUDGMENT 5. One Babubhai Ninama-PW15 (Exh.32), Talati- cum-Mantri of Karjan village was examined to prove the date of birth of the victim girl. He had brought the record of birth and death register from which it could be seen that the date of birth of the victim girl was 17th January, 1989. 6. Dr.Vipul Trivedi- PW16 (Exh.36), who was the Medical Officer at Karjan Community Health Centre had examined the victim girl on 18th June, 2003. He had not found any marks of injuries on her body and on her private parts. Interestingly, he found that hymen of the victim girl was not ruptured. 7. The prosecution collected the clothes which were worn by the girl at the time of the incident and sent for examination. Presence of semen was found in the clothes of the victim girl as well as vaginal swab collected. 8. This is a gist of the evidence led by the prosecution to establish the charges against the CR.A/1216/2004 6/9 JUDGMENT appellant. 9. In so far as appellant having gone with the victim girl after taking her out from the care of her parents and of having sexual intercourse with her, there appears to be hardly any doubt. This has been stated in clear terms by the victim girl in her deposition at Exh.21. She suggested that appellant had intercourse with her previously also. On the date of the incident, he had come on a bicycle and requested her to accompany him on the bicycle. They went from place to place, spent the night at Shuklatirth. Next day they spent in a field of bananas. During this time also, the appellant had intercourse with the victim girl. 10. In this regard, the other evidence collected by the prosecution fully corroborates the version of the victim girl. As noted; from her own clothes as well as the vaginal swab, presence of semen was found. It was of the same group as that of the blood group of the appellant. CR.A/1216/2004 7/9 JUDGMENT 11. With respect to the age of the victim girl also, there appears to be no serious doubt. Talati- cum-Mantri had produced the Government record to show that the girl was born on 17th January, 1989. This was not even seriously challenged by the defence in the cross-examination. Thus on the date of the incident, the girl was only 14 years and 5 months of age. Even with her consent, the intercourse committed on her would thus render the person committing such an act, liable to be punished for offence under Section 376 of the IPC. Considering her tender age and considering that the appellant made her to leave her parental care, offences under Section 363 and 366 were also made out. The learned Judge, therefore, in my view committed no error in convicting the appellant for all the said three offences. 12. The question of quantum of sentence, however, remains to be dealt with. 13. From the evidence on record and particularly, that of the victim girl herself, I have reason to believe that girl herself had willingly CR.A/1216/2004 8/9 JUDGMENT left her parent's house to join the appellant. As noted in her deposition, she stated that the appellant used to get presents for her. In the cross- examination, she stated that upon being asked by her parents, she would tell them that the dresses were bought by her from her own money. She further stated that earlier also on couple of occasions, the appellant had intercourse with her behind her house at an isolated place. She admitted that she had not complained to anyone about these instances and she had left the house on her own. Thus, the fact that the victim girl herself joined the appellant though may be upon his pressurizing, cannot be ruled out. 14. Under the circumstances though as recorded, I find that the appellant was guilty of offences punishable under Sections 363, 366 and 376 of IPC, his case is to be considered in light of the peculiar circumstances arising in this case. The appellant himself was a young man aged about 22 years. Out of impertinence and out of over enthusiasm, he committed certain acts which were strictly not permissible under the law. He has, therefore, been found guilty CR.A/1216/2004 9/9 JUDGMENT of having committed these offences. However, in view of the peculiar facts as noted above, I find that this is a fit case were sentence below the minimum prescribed under Section 376 of IPC is required to be imposed. 15. The Jail record of the appellant suggests that he has already served out actual sentence of more than 4 years and 8 months including the set off period. He has also earned remission of nearly 5 months. 16. Considering all these aspects of the matter, sentence of appellant under Section 376 is reduced to 5 years of R.I. Rest of the sentences remain unaltered. All sentences are to run concurrently. The appellant shall be released upon completion of the modified term of sentence. Appeal disposed of accordingly. (AKIL KURESHI, J.) ashish//