CR.A/1735/2006 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1735 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 ? ========================================================= ISHWARJI VELAJI THAKOR - Appellant Versus THE STATE OF GUJARAT - Respondent ========================================================= Appearance : MR SR DIVETIA for Appellant. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for respondent-State. MR HN BRAHMBHATT for respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 18/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/1735/2006 2/9 JUDGMENT In an F.I.R lodged by Kokilaben with Kalol Police Station on 9.6.2006, it was alleged that the present appellant raped the first informant's daughter Panna at about 9.00 p.m. on the previous day i.e. 8.6.2006. This FIR was lodged on the basis of the knowledge derived by the first informant through the victim in the morning of 9.6.2006. The offence was registered and the prosecutrix was sent to the Doctor for medical examination. The accused was also sent for medical examination. Both of them were examined and necessary samples were taken and sent to FSL by the investigating agency. 2. According to the prosecution case, the prosecutrix used to work with the accused-appellant and that is how, they were known to each other. On the day the incident, when the first informant and her husband were away on work and the prosecutrix was at home, the accused went to her and asked her to join him on motorcycle to go to Nardipur for having `dabeli'. She joined him and they went to Nardipur, had snack and while they were returning around 9.00 p.m., when in a narrow land there was no one around, CR.A/1735/2006 3/9 JUDGMENT the accused allegedly had coitus with the prosecutrix. Then they went to home. That evening, the prosecutrix did not inform any one, but, in the next day morning, she informed her mother and the FIR came to be lodged. 3. The investigating agency having found sufficient evidence against the accused, filed charge-sheet in the Court of learned J.M.F.C.Kalol and the learned J.M.F.C., in turn, committed the case to the Court of Sessions, Gandhinagar and Sessions Case No.67/2006 came to be registered. 3.1 The Sessions Court framed charge against the accused at Exh.3, for the offences punishable under Sections 363 & 376 of the Indian Penal Code and considering the evidence led by the prosecution, convicted the accused appellant for both the offences and sentenced him to undergo R.I for three years and to pay a fine of Rs.10,000/-, in default, to undergo S.I for six months, for the offence punishable under Section 363 IPC. The Sessions Court further awarded sentence of R.I for ten years with fine of Rs.10,000/-, in default, S.I for two years, for the CR.A/1735/2006 4/9 JUDGMENT offence punishable under section 376 IPC. The Sessions Court also directed the accused to pay compensation of Rs.50,000/- to the prosecutrix within 45 days, as provided under Section 357(3) of Cri.P.C. This judgment was passed by the Sessions Court on 31.08.2006. Aggrieved by the said judgment and order of conviction and sentence, the present appeal is preferred. 4. We have heard learned advocate Mr.Divetia for the appellant, and learned A.P.P. Mr.Bhatt for the State. 5. The learned advocate for the appellant, after taking us through the record and proceedings, submitted that the conduct of the prosecutrix is not natural, she does not inform any one about the incident till next day morning. Even at the time of the incident, she had not offered any resistance, nor has she raised an alarm or shouts for help. He also submitted that the medical evidence indicates that she was used to intercourse. The learned advocate also indicated that there was a compromise between the parties, which is also not considered by the CR.A/1735/2006 5/9 JUDGMENT trial Court. He, therefore, submitted that the appeal may be allowed. 6. The appeal is opposed by learned A.P.P. Mr.Bhatt. 7. On perusal of the evidence, it is found that the age of the prosecutrix on the day of the incident was 11 years & 7 days, which is proved beyond doubt with the help of the certificate issued by the Gram Panchayat produced at Exh.16 and the School-Leaving- Certificate at Exh.15, according to which, the date of birth of the prosecutrix is 1.6.1995. The necessary implication is that the element of consent on the part of the prosecutrix would be of no relevance. 8. So far as the incident is concerned, there is deposition of the prosecutrix at Exh.10, where the prosecutrix, in term, states that the appellant had intercourse with her on 8.6.2006 while they were coming back from Nardipur around 9.00 p.m. To this version, there is support of evidence of her mother Kokilaben, who is examined at Exh.11, who says that in the morning of 9.6.2006, the prosecutrix told her about the incident. CR.A/1735/2006 6/9 JUDGMENT 8.1 Immediately, on disclosure to the mother, the mother takes her to the police station, FIR is lodged and the prosecutrix is sent to the Doctor for medical examination. Her clothes are collected. Medical Officer Dr.Jagdishbhai Tank, who is examined at Exh.23, has recorded the history given to him by the prosecutrix, where, again, the prosecutrix implicates the appellant for the same offence at the relevant time. The samples are drawn by the Doctor and sent to FSL. The Doctor has also recorded the history in the case papers and incorporated in the medical certificate produced on the record at Exh.25. 8.2 The FSL report indicates that the vaginal swab carried semen of Group `A', which is the group of the accused. The undergarment of the prosecutrix, which was produced before the police, has also been examined, and it is found to contain Antigen 'A & Antigen 'B'. 9. The above pieces of evidence, in the form of deposition of the Doctor, history recorded by the Doctor as reflected in the medical certificate and CR.A/1735/2006 7/9 JUDGMENT the FSL Report, lend support and credence to the version of the prosecutrix. 10. The age of the accused at the time of the incident was 30 years and was married having children, as has been recorded in the judgment by the trial Court as submissions made by the learned advocate for the accused-appellant. 11. In the above fact-situation, considering the age of the prosecutrix and the evidence indicating intercourse between the accused and her having been proved, we are of the view that the trial Court cannot be said to have committed any error in recording the conviction for the offence of rape. 12. So far as the aspect of taking away of the prosecutrix by alluring her for a ride on motorcycle and snack is concerned, it has almost gone unchallenged and the conviction recorded therefor is justified. 13. So far as the settlement between the parties is concerned, it is only in the form of a compromise- CR.A/1735/2006 8/9 JUDGMENT purshis produced on record at Exh.9, where it is indicated that because of intervention of the leaders of the society/community, the parties have settled the dispute. This settlement/compromise can hardly be said to be of any virtue to the accused in this case for the first reason that the offence is not compoundable and during the deposition of the first informant on 23.8.2006, the day on which the compromise-purshis is placed on record of the trial Court, not a single question is put, either by the prosecution or by the defence with regard to the settlement of dispute between the parties. The trial Court was, therefore, justified in not accepting the compromise. 14. Last but not the least, the learned advocate for the appellant prayed for reduction of sentence. Considering the provisions of Section 376(2)(f) of I.P.C., the sentence awarded by the trial Court is minimum and there are no mitigating circumstances, which would persuade us to invoke the powers by resorting to Proviso to that Section. CR.A/1735/2006 9/9 JUDGMENT 15. For the foregoing reasons, the appeal must fail in totality. The appeal stands dismissed. The judgment and order of conviction and sentence dated 31.08.2006 passed by the learned Sessions Judge, Gandhinagar, in Sessions Case No.67/2006 is hereby confirmed. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)