IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 864 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and MR.JUSTICE A.K.TRIVEDI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- DILIPSINH N VAGHELA Versus STATE OFGUJ -------------------------------------------------------------- Appearance: MR SHALIN N MEHTA for Petitioners Mr. K.P. Raval, ld. A.P.P. for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE A.K.TRIVEDI Date of decision: 11/05/1999 ORAL JUDGEMENT( Per B.C. Patel,J.) The present appeal is preferred by the original accused nos.1 and 2 of Sessions Case no.56/90 who were convicted by the learned Addl. Sessions Judge, Ahmedabad Rural on 28-9-1990. Alongwith the appellant one Mangaldas Ganpatbhai Shukla (accused no.3) was also tried, however, the trial Court acquitted the accused no.3. 2. The maximum sentence awarded to the appellant no.1 is of 10 years. So far as the appellant no.2 is concerned, the maximum sentence awarded is one year. The accused no.2 was released on bail. We take a serious note of the fact that though the accused no.1 was tried and convicted by an order dated 28-9-1990 and the appeal was admitted on 12-11-1990, the matter could not be disposed of within a reasonable period. It is also required to be noted that when we called out the matter, soon after the bussiness was entrusted to us, the learned Advocates who filed their joint appearance did not bother to remain present before the Court. We waited for some time. Our order dated 21-4-1999 clearly points out that the matter was on the board since long. The names of the learned Advocates were called out but have not appeared in the matter, and therefore the Court was constrained to appoint Advocate Mr. S.N. Mehta as amicus curie to assist the Court. 3. After going through the record we inquired from the Public Prosecutor whether the accused no.1 is still in the prison or not and we were told that he has been already released on 1-7-1997. If the conviction is confirmed on appreciation of evidence, the matter may be different however if the conviction is set aside the accused will have an impression that he has been wrongly detained in jail. Registry must see that the appeals are heard as early as possible and for that purpose, matters must be placed before the Court. Office must look into the papers for finding out the date of conviction and whether accused-appellant is released on bail or not and if not since when he is in jail. In any case, if the accused appellant has completed half of the sentence except in the matters of life imprisonment, a separate Board should be listed before the Court. Office to strictly follow the procedure for listing the matters before the Court. 4. Tulsibhai Haribhai Chauhan, PW 5 on 8-9-1989 lodged a complaint which is on record at Exh.42 inter alia alleging that on 7-9-1989 at about 7.00 p.m. he sent his daughter, the prosecutrix, with a sum of Rs.3000/-for the purpose of making payment to one Bhavani Electronics towards outstanding amount in connection with purchase of a T.V.. She did not return till late and therefore Tulsibhai asked his son-Jitubhai to make inquiry at the shop and thereupon it was learnt that she had not made payment to the shopkeeper. While making inquiry one Nitin who had a panshop in the vicinity informed that prosecutrix has been taken away by one Dilipsing Darbar of Kolvada. Despite making inquiries in Sector no.24, Gandhinagar and near about areas there was no fruitful result. 5. In the information Exh.42 the father of the prosecutrix has futther stated that earlier the accused Dilipsinh had enticed the prosoecutrix and took her away with an intention to satisfy his sexual lust and/or for marriage. She was subsequently found from Gandhinagar and when action was sought to be taken on 8-7-1989, the accused in the presence of two Panchas executed a writing that he will not repeat the crime. It was learnt at that point of time that accused was married. The accused Dilipsinh was not doing any work and was a headstrong person. In the F.I.R. it was specifically stated that the accused took away the prosecutrix knowing fully well that she was minor and as such he removed the prosecutrix from the guardianship of the father for the purpose of sexual intercourse and/or for marriage. It is further pointed out that for the aforesaid purpose, prosecutrix was kidnapped with a sum of Rs.3000/. The police registered the complaint at about 21.45 hrs.on 8-9-1989. 6. In the evidence Tulsibhai, PW 5, has stated that information about kidnapping was derived from one Nitin Bhavsar by his son Jitu. He has positively stated that they learnt that she was kept in a double decker house of Housing Board situated in Sector no.24. 7. As per the prosecution version, on 9-9-1989, Police Sub Inspector of Gandhinagar Police Station was approached by the prosecutrix with an application Exh.46 inter alia stating that before about two months she got married with Vaghela Dilipsinh the accused no.1 and that it was a civil marriage. It is thereafter on 5-7-1989 she went to reside with her father. On 8-7-1989 her father and brothers called Dilipsinh and both were threatened and signatures were obtained on divorce papers. Thereafter, she was residing with her father but since about two months her parents, her brothers and sister-in-laws were torturing her and before about two days i.e. on Thursday at about 9.00 p.m. she was driven out by her parents and brother Jitu. Since two days she was searching the accused Dilipsinh with whom she was married but as he was not traced she has approached the police. She requested in the application that she is not willing to go to her parents house. She further stated that on account of love she married Dilipsinh and she wanted to stay with him. 8. It is thereafter on 17-10-1989, prosecutrix submitted an application to the Inspector of Police inter alia stating that the accused no.1 Dilipsinh accompanied her on 7-9-1989. Even earlier from 29-6-1989 to 1-7-1989 she was kept in his custody. From 7-9-1989 to 9-9-1989 one Satish Valand-the accused no.2 and the accused no.1-Dilipsinh kept her in confinement in a double decker room no.241 situated in Sector no.24. Dilipsinh while going out of the house asked Satish-the accused no.2 to keep a watch on the prosecutrix and thereafter the accused no.2 by pointing out a knife threatened that if she runs away she would be killed by means of a knife. She further stated that on both the occasions-the accused no.1 Dilip had sexual intercourse with her. For a period of about one month he could not be arrested. She further stated that she could not state these facts before the police on 9-9-1989 as she was afraid of the accused no.1-Dilipsinh as he was free and he had administered threats, but since he was in jail she was not afraid of anyone and she stated that her statement should be recorded immediately. 9. It appears from the record that it is thereafter the Police Officer has recorded her statement for the first time. After the investigation, police filed chargesheet against the present accused nos.1 and 2 and one Mangaldas Shukla, after completion of the investigation. The Judicial Magistrate, First Class, committed the accused to the Court of Sessions. The learned Addl. Sessions Judge framed charge vide Exh.19 on 8th August, 1990. The accused no.1 was charged for offences punishable under Secs.363,365, 366, 376, and 506(2) of the Indian Penal Code. The accused no.2 was charged for offences punishable under Secs.363, 365, 506 and also the aforesaid offences read with Sec.114 of the Indian Penal Code. The accused nos.1 and 2 were also charged for offences punishable unders Secs.468 and 114 of the Indian Penal Code. The accused no.1 was also charged for offences punishable under Secs. 463, 465, 466, 467, 468, 469 and 471 of the Indian Penal Code. The accused no.3 was charged for offences punishable under Secs.465, 466, 467, 468, 469 and 471 read with Section 114 of the Indian Penal Code. The accused pleaded not guilty to the charge and contended that they are entirely innocent. 10. The trial Court on appreciation of evidence both oral as well as documentary, hearing the submission urged at the Bar and considering the statement of the accused recorded under Sec.313 of the Criminal Procedure Code acquitted the original accused no.3 and convicted the accused nos.1 and 2 for the following offences. The accused no.1 was convicted for offences punishable under Sec.376, 363, 365, 506(2) 465, 466, 467, 468, 469 and 471 of the Indian Penal Code and was sentenced to sufer R.I. for the term of 10 years and to pay a fine of Rs.500/-, in default of payment of fine, S.I. for six months. For other offences the accused no.1 was sentenced to undergo different periods of imprisonment and was also ordered to pay amount of fine. All the sentences were ordered to run concurrently. So far as the accused no.2 is concerned, the ld. Addl. Sessions Judge, held him guilty for offences punishable under Secs., 368, 506(2) of the Indian Penal Code and also Secs.363 and 366 read with Sec.114 of the Indian Penal Code and was sentenced to suffer R.I. for one year and fine of Rs.200/-, in default of payment of fine, S.I. for two months. He was also sentenced to undergo imprisonment for different periods and was also ordered to pay fine for other offences. All the substantive sentences were ordered to run concurrently. It is against this order the appeal is preferred and as indicated earlier, Mr. S. N. Mehta, learned Advocate was appointed to assist the Court as amicus curie. 11. Mr. Mehta learned Advocate submitted that, in the instant case, evidence of prosecutrix is unreliable and in view of several contradictions and omissions which are proved her evidence cannot be accepted. He further submitted that though she was before the police on 9th September, 1989 she did not convey anything to the Police Officer. She was in the custody of her father after 10th September and for the reasons best known to the Investigating Officer, her statement was recorded for the first time after 17-10-1989. If the prosecutrix was available and when she was under the protection of her parents there was no earthly reason for the Investigating Officer not to record her statement immediately after 9-9-1989. He further submitted that the incident is alleged to have taken place in a shopping centre at about 7.00 p.m. and that she had all the opportunities to raise a cry or shout but instead of raising shouts for protecting herself she went quietly with accused no.1. If Nitin Bhavsar witnessed the incident there was no earthly reason for not examining the said witness. He pointed out that PW 6 - one Vijay the landlord of the premises occupied by the accused was examined by the prosecution but for the reasons best known to the prosecution, the prosecutrix was not identified as a lady who was with the accused at that time. He further submitted that looking to the medical evidence, it is clear that there was no evidence showing recent sexual intercourse and that she was in the habbit of having sexual intercourse. He further submitted that even before the Doctor she has stated that somebody assaulted her sexually. He has pointed out number of infirmities which we will discuss hereinafter. 12. He further submitted that the charge is defective. The accused nos.1 and 2 could not have been tried with the accused no.3. As far as the first incident is concerned there is no reference of the presence of the accused no.2. The accused no.3 has no connection with the later incident and therefore he could not have been tried with the accused nos.1 and 2. Mr. Mehta submitted that the trial Court has committed grave error by conducting a joint trial in violation of the provisions of law and the same has caused serious prejudice to the defence of appellants and therefore the appellants-accused be acquitted on that ground alone. 13. Mr. Raval, leanred Addl. P.P. submitted that considering the fact that the prosecutrix was minor it is not open for the accused to say that he has committed no offence. Before removing a minor from the custody of the guardian, it was the duty of the accused to obtain the consent of the guardian. The moment the minor is removed from the custody of the guardian, the offence is committed. He further submitted that in the instant case she was confined in a house where the accused no.1 as well as the accused no.2 threatened her by pointing a knife at her and looking to her age she was not able to resist or protect herself and the accused took disadvanage of the circumstances created by them. He further submitted that earlier the accused no.1 enticed the prosecutrix and later on executed a writing. He assured that he will not repeat such crime again in future and therefore he was allowed to go. He further submitted that the signature of the prosecutrix was obtained on a blank paper(marriage form). It was tendered before the Registrar of marriages for the purpose of showing to the world at large that the accused and the prosecutrix are husband and wife. The accused no.3 signed the said document knowing fully well that no marriage ceremony has been performed and according to the Public Prosecutor it was the design of the accused no.1 to anyhow secure the prosecutrix. The prosecution has led sufficient evidence and therefore the accused are rightly held guilty and it requires no interference. 14. The prosecutrix in her deposition in chief has stated that she was born on 15-2-1972. She took primary education in a primary school situated in Sector no.23 at Gandhinagar. She completed her studies upto 10th Std. thereafter she studied in middle school situated in Sector no.29. At the time of incident she was about 17 1/2 years old. To be precise, 17 years, 6 months and 22 days. On 7-9-1989 she went to a shop situated in Shopping Centre at the instance of her father for making payment of Rs.3000. According to her, in the shopping centre, accused no.1 met her and under threat and coercion asked her to accompany him. She further stated that the accused no.1 pointed out a knife while administering threats and therefore she was afraid. This aspect is not stated before the police. She further stated that she was taken to Sector no.24 in a rickshaw to room no.241 which is referred to as a double-decker room. The accused no.1 unlocked the room and took her inside. She started crying and stated to the accused no.1 that he has brought her against her will. She would like to go to her father's house but the accused no.1 threatened that she should not go to any other place from the place where she is kept. It appears that this part of the story is also not stated before the police. She further came out with the version that at about 10.00 to 10.30 p.m. the accused no.1 had sexual intercourse with her against her will. At the relevant time she had put on underwear, pyjama and kurta. She has narrated how the accused no.1 committed sexual intercourse. She stated that she opposed. At about three times, the accused was pushed. The entire story of the manner in which the accused committed sexual intercourse and the clothes put on by her or that the accused no.1 committed sexual intercourse against her will is not stated before the police. She stated that she was threatened therafter and was kept at the same place till after noon of 9-9-1989. 15. In paragrpah 4 of the evidence she stated that at about 9.00 a.m. on 8-9-1989, the accused no.2 who was the friend of the accused no.1 came. The accused no.2 was told by the accused no.1 that he has kidnapped this girl (prosecutrix). It may be noted that before the police she has not stated that; "he has kidnapped the girl. For some reason, the accused no.1 went outside for some time asking the accused no.2 to keep a watch on the prosecutrix. The accused no.2 was conveyed by the prosecutrix that she has been forcefully and against her will confined and she had a desire to go to her father and she should be allowed to go. He pointed out a knife and threatened that if any attempt is made to go out she will be killed. The accused no.2 left on arrival of the accused no.1. According to her say, the accused no.2 used to bring tiffin. She has not stated before the police that the accused no.2 used to bring tiffin or that he administered threats. She further stated that on 8-9-1989 at about 11.00 p.m., the accused no.1 raped her. She opposed at that time. She further stated that the accused used to administer threats to kill her and therefore she could not resist and for all the three days, the accused no.1 did not allow her to go out. She has not stated before the police that for all the three days the accused no.1 id not allow her to go out. On the third day i.e. 9-9-1989 at about 11.00 a.m., the accused no.1 obtained the signature of the prosecutrix on a writing which was not read by her. She signed because of the threats administered. The writing has been produced at Mark 23/6. She stated that thereafter the accused no.1 executed the writing in her presence and she has identified and stated that the handwritings are of the accused, and therefore, the document has been given mark (Exh.46). The accused no.1 asked to take said application to the police station but she refused. Thereafter, the accused no.1 threatended and took her upto the police station and thereafter application was given to the police. Before the police, she has not stated that the accused no.1 has asked her to go with the application to the police station and she refused. 16. In paragraph 7 of her evidence she has referred to the earlier incident which took place on 29-6-1989. According to her say at about 7.00 p.m. her mother asked her to bring vegetables from the shopping centre just behind the house. When she went to the shopping centre for vegetables it was raining and she was waiting near one shop which was closed. The accused no.1 came and stated that she should accompany him, otherwise she would be killed. Thereafter, she was taken in a rickshaw to a place just behind the factory known as Devi Electronics situated in GIDC Estate. She started crying and stated that why she was brought to that place and she should be taken to her house. It is thereafter she has explained how the accused no.1 committed sexual intercourse and as there was bleeding, the accused no.1 with his handkerchief cleaned the private part of the prosecutrix. Before the police she has not stated about giving push to her or taking out her clothes and with regard to sexual intercourse. She has also not stated before the police that the accused no.1 with the handkerchief which was with him cleaned the private part as there was bleeding. She came out with a version that it was a lonely place and there was no movement of person. She was kept there during the night and in the morning she was taken to village Kolavada. The accused no.1 brought clothes for her. She was threatened not to move from that place. She further stated that from there the accused no.1 took her to the GIDC from where a rickshaw was hired and for the purpose of marriage she was taken to the Court at Gheekanta in Ahmedabad. Near the canteen in the Court the accused no.1 asked her to marry him, but she refused. She has stated that again the accused no.1 brought her to the place just behind Devi Electronics and during night hours he had sexual intercourse twice. She has further stated that the accused used to bring snacks from handcarts. Sometimes, the accused no.2 used to bring tiffin. According to her say, from 29-6-89 to 2-7-89 she was kept just beind Devi Electronics. On 1-7-1989 the accused obtained her signature in one form under compulsion. She was shown the original register from the office of the Registrar of Marriages. She pointed out a form which was signed by her which was given Mark (Exh.32). She specifically stated that she had signed the form but the date is not in her handwriting. According to her version when the accused no.1 gave the form to sign it was blank and under compulsion her signature was taken. She stated that the accused no.1 stated that the prosecutrix was required to marry and with compulsion she signed. She came out with the version that the accused no.1 married her without performing any ceremony. She stated that she knew about "Saptapadi" and the ceremony to be followed under the Hindu Shastras. She stated that no such ceremony was performed and no priest for performing the marriage was called. In cross-examination she stated that she was with the accused no.1 for the first time on 29-6-1989 and subsequently i.e. after 9-9-1989 she came to know that the accused no.1 was a married person. She denied the suggestion that she knew the accused no.1 since about six to seven years. She also denied the suggestion that she had love and affection towards the accused no.1 and she used to move with the accused no.1. She has denied the suggestion that the accused no.1 used to write love letters to her. It may be noted that if such letters were written to the accused by her, it was for the accused to place before the Court and should have been shown to the witness. 17. Certain ommissions are brought out in the cross-examination which we have pointed out. She has referred to the presence of one Vijaybhai who was the owner of the house where she was kept. She stated that when the accused no.1 was questioned by said Vijaybhai who was the owner of the house where she was kept. She stated that when the accused no.1 was questioned by said Vijaybhai, the accused no.1 stated that the lady (prosecutrix) is his wife. She was threatened by the accused no.1 that if said Vijaybhai puts any question she should not say anything. There was no chance to meet Vijaybhai and therefore there was no question of talking to him. She was questioned as to why despite movement of the people in the place where she was kept she had not raised any cry to which she answered that she did not raise any cry because the accused no.1 did not open the doors or the windows. Even while going to the bathroom the accused no.1 used to accompany her. Even on the next day when she went to answer the call of nature the accused no.1 was standing outside and hence she did not raise any shout. She has denied the suggestion that application Exh.46 was submitted by her to the police as her parents were torturing her. The accused no.1 was just standing outside the police station. She stated that she did not disclose