CR.A/681/2005 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 681 of 2005 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 ? ========================================================= SURESHBHAI RAIJIBHAI MAKWANA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR PK SHUKLA for Appellant(s) : 1, MR BHATE APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/04/2008 ORAL JUDGMENT 1. The appellant is original accused. He was CR.A/681/2005 2/12 JUDGMENT convicted for offences punishable under Sections 363 and 376 of Indian Penal Code by the learned Sessions Judge, Nadiad by Judgment dated 23.3.2005 rendered in Sessions Case No.235 of 2002. He was sentenced to 3 years of R.I. for offence punishable under Section 363 and for 7 years of R.I. for offence punishable under Section 376 of IPC. 2. As per charge Exh.4, it was alleged against the accused that on 21.4.1998 at about 6 O'Clock in the evening, he had taken minor prosecutrix 'R' from the lawful guardianship of her parents and thereafter, committed the act of sexual intercourse against her wish. 3. Arvindbhai Chunibhai, PW-1, the father of 'R- victim girl, was examined at Exh.12. He stated that his daughter 'R' was studying in 7th Standard in the year 1998. He knew the accused who belonged to the same village. Accused-Suresh had eloped with his daughter 'R'. His daughter had gone out in the evening to answer nature's call. She had, however, not returned. He had, therefore, inquired in the village and he could gather information that his daughter had run away with accused- Suresh. He stated that his daughter was aged about 14 years at that time. About 3 months after the incident, his daughter was traced by the Police. CR.A/681/2005 3/12 JUDGMENT 3.1 In the cross-examination, he stated that he had learnt that his daughter 'R' had married to Suresh. He denied that he had pressurized and beaten up his daughter 'R' to give statement against the accused. He admitted that upon return, his daughter had informed him that she had already got married to the accused. He, however, stated that 'R' further informed him that accused had threatened her with serious consequences, if she did not marry him. He admitted that in the statement before the Police on 3rd August, 1998, it was so stated by him that his daughter had admitted her mistake and requested for being pardoned. Her daughter had also informed him that she and the accused had gone to Ahmedabad, Ambaji and thereafter, had performed marriage ceremony in a temple at Padra. 4. 'R' PW-2, the victim girl was examined at Exh.14. She stated that her date of birth was 21.10.1983. On the date of the incident when, she had gone to answer nature's call, accused had forced her to accompany him. She was taken to a Court for getting married. He had intercourse with her against her wish. The two had gone to Ambaji and accused used to go out for labour work. They had stayed at Ambaji for about 15 days in a field. CR.A/681/2005 4/12 JUDGMENT During which time, accused had intercourse with her on 3 to 4 occasions. Before Ambaji, they had stayed at accused's sister's house for about 15 days. They had stayed together for about 2 and ½ months. 4.1 In the cross-examination, she admitted that in the police statement, she had not stated that the accused had pressurized her or threatened her to get married. She admitted that in a police statement, she had stated that for about 2 months, they were roaming together in the area near Ambaji. 4.2 She was confronted with some of the statements before the police in which she had made several statements indicating that she had willingly and on her volition gone with the accused and got married. She, however, denied having made such statements. 4.3 She stated that during her stay with the accused over 3 months, she did not complain to anybody about being kidnapped and being raped by the accused. 5. Mother of 'R' – Kailashben Arvindhbhai Chunilal PW-3 was examined at Exh.16, she stated that her daughter was born on 21.10.1983. CR.A/681/2005 5/12 JUDGMENT 5.1 In the cross-examination she admitted that when her daughter was being examined by the Doctor, she was present and the history recorded by the Doctor was given by her. 6. Dr.Naishad Bhatt, PW-6, Exh.23, had examined the victim girl as well as the accused. He stated that history of having sexual intercourse with the accused was given by 'R'. He had not noticed any internal injuries on the private parts of the girl. On her clothes, however, he spotted spots of semen. Her hymen was ruptured. From the clothes of the accused also he spotted spots of semen. 7. Modi Babulal Chandulal, PW-9 at Exh.37 was the employee of Ahmedabad Municipal Corporation who had produced before the Court Birth Certificate of the victim girl at Exh.38. The date of the birth of the victim girl recorded therein was 21.10.1983. 8. Chandrakant Raval, Police Inspector, Naranpura Police Station, Ahmedabad, PW-8, was examined at Exh.31. He had carried out investigation. CR.A/681/2005 6/12 JUDGMENT 8.1 In the cross-examination, he agreed that 'R' had in a police statement stated that the accused used to come on holidays and talk to her. She would sometimes respond and smile also. She had also stated that uncle of Suresh had scolded her and told him to drop her back to her parent's house. However, as instructed by Suresh, she had told the uncle that they were to get married and she was not willing to go home. He also agreed that during the investigation, it was revealed that the marriage of the 'R' and the accused was registered and in the marriage form, age of the girl was declared as 19 years. 9. From the above evidence on record, the prosecution sought to prove the charge against the accused. 10. From the evidence brought on record, it can be clearly seen that the allegations of the victim girl being taken forcibly under coercion is completely unbelievable. Equally, the allegations that the accused had intercourse with the victim girl against her wish, simply cannot be believed. 11. From the deposition of the victim girl herself, it clearly emerges that in the evening time on CR.A/681/2005 7/12 JUDGMENT 21.04.1998, she had gone out of the house. The accused had thereupon met her and taken her with him. Though, before the Court, 'R' stated that, she was forced by the accused to accompany him under coercion and threat, clearly no such version was given before the police by the girl in her statement. This was clearly admitted by the I.O. in the cross-examination. Even otherwise, the victim girl admitted that she stayed with the accused for more than 3 months. During this period, the two together stayed for about 15 days at the house of the sister of the accused. She also stated that for a long period of time near Ambaji they used to spend nights in open fields. Accused used to go out for labour work. There are no allegations that all this while 'R' was under confinement. She had made no attempt to escape, she complained to no one. As per her explanation the accused used to be with her all through out also is not in conflict with her deposition that accused used to go out for labour work during the day. Thus, she had ample opportunity either to escape or to complain to some one during the period of her stay with the accused which was admittedly more than 3 months. 12. Additionally, I also find that the accused and 'R' had got married and their marriage was also CR.A/681/2005 8/12 JUDGMENT registered. Under the circumstances, the entire version of the accused having forced 'R' to accompany him and thereafter, having kept her with him for over 3 months cannot be under any circumstances believed. Equally, for the same reasons, it is not possible to accept the version of 'R' that the accused used to commit act of sexual intercourse against her desire. 13. It can however be seen that 'R' stated that her date of birth was 21.10.1983. Her mother Kailashben PW-3 also stated that 'R' was born at Gordhandas Hospital at Maninagar on 21.10.1983. The prosecution had also examined an employee of Ahmedabad Municipal Corporation Modi Babulal Chandulal PW-9 at Exh.37. He had produced and proved before the Court, birth certificate of 'R' which noted her date of birth as 21.10.1983. The date of birth of 'R' was thus proved beyond doubt. Defence has not raised any doubt about genuineness of the said birth certificate. This was corroborated by the oral testimony of the mother of the victim girl who gave her birth date and birth place. One may recall that the incident took place on 21.04.1998. Thus on the date of the incident, 'R' was aged about less than 15 years. In that context, consent of 'R' for sexual intercourse becomes inconsequential. CR.A/681/2005 9/12 JUDGMENT 14. In so far as the charges of Section 363 and 376 against the appellant, the same stand established. To recapitulate, though I find that 'R' had voluntarily joined the appellant and in the act of intercourse also she was consenting party, in view of her tender age, her consent was of no consequence. Therefore, in my view, appellant was rightly convicted for offence under Section 363 and 376 of IPC. His conviction is, therefore, required to be upheld. 15. The question of quantum of punishment, however, remains to be dealt with. 16. The appellant was himself a young boy at the time when the incident took place. Unfortunately, we do not have on record the exact age of the accused at the time of the commission of the offence. Nevertheless, in his statement before the Court under Section 313, which was recorded on 5.4.2004, he stated that he was aged about 23 years of age. On the date of the incident, therefore, he was about 17 years of age. If the appellant was juvenile at the time of commission of offence, different consideration would apply. However, as noted, his exact age is not available on record. However, it CR.A/681/2005 10/12 JUDGMENT cannot be denied that he himself was a young boy when he committed the said offence. 17. Therefore, considering very young age of the accused himself at the time of the commission of offence, also considering the fact that victim girl herself was consenting party and taking into account all other facts and circumstances of the case, I find that this is a fit case wherein punishment below minimum prescribed under Section 376 of IPC is required to be awarded. The overall impression that one builds from the evidence on record is that very young boy and girl got involved emotionally with each other and out of impertinence and without fully understanding the consequences and repercussion of their actions, the girl eloped from home and spent time with the accused for nearly 3 months. The case of the appellant, therefore, is required to be dealt with differently from a person committing an act of sexual intercourse on a woman against her wish. Sentence below the minimum prescribed under Section 376 is required to be imposed. 18. In the case of State of Chhasttisgarh V/s. Lekhram reported in AIR 2006 SC 1746, the Apex Court under somewhat similar circumstances found that the CR.A/681/2005 11/12 JUDGMENT accused who remained in custody for 1 ½ years would be sufficient punishment for the offence. Learned advocate Mr.Shukla rightly points out a decision of learned single judge of this Court dated 5.10.2007 in Criminal Appeal No.287 of 2004 wherein also the High Court had reduced the punishment and awarded sentence of 4 years for offences under Section 376 of IPC under similar circumstances. 19. Considering the above facts and circumstances of the case, I find that the punishment under Section 376 is required to be reduced. 20. Jail record of the appellant suggests that he has already been in jail for a period of more than 3 years and 2 months. He would be entitled to remission according to rules. Considering all these aspects of the matter, his punishment for offence under Section 376 is reduced to one already undergone. 21.The appeal is, therefore, disposed of in following terms: (1)Conviction and sentence of the appellant under Section 363 is upheld. (2) Conviction under Section 376 is upheld. CR.A/681/2005 12/12 JUDGMENT (3) The sentence under Section 376 is, however, reduced to one already under gone. (4) He shall be released forthwith, if not required in any other criminal case. (AKIL KURESHI, J.) ashish//