CR.A/1090/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1090 of 2005 with CRIMINAL APPEAL No. 2563 of 2005 with CRIMINAL APPEAL No. 2564 of 2005 with Criminal Misc. Application No.15597 of 2008 In CRIMINAL APPEAL No. 1090 of 2005 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 ? ========================================================= MOHAMMED HANIF ISMAIL GUJARATI - Appellant Versus THE STATE OF GUJARAT – Respondent. ========================================================= Appearance : MR VAIBHAV A VYAS for Appellant-convict-accused MR UR BHATT, ADDL.PUBLIC PROSECUTOR for State ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 10/12/2008 CR.A/1090/2005 2/10 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) These Criminal Appeals arise out of the judgment and order rendered by the Sessions Court, Junagadh, in Sessions Case No.64/1999, on 21.04.2005, convicting the appellant in Criminal Appeal No.1090/2005, for the offences punishable under Sections 363 & 376 of the Indian Penal Code. The appellant-original accused No.1 is ordered to undergo R.I for a period of two years and to pay a fine of Rs.200/-, in default, to undergo S.I for 15 days, for the offence punishable under Section 363 of I.P.C. He is further sentenced to undergo R.I for seven years and to pay a fine of Rs.500/, in default, to undergo S.I for one month, for the offence punishable under Section 376 IPC. 2. The six accused in Sessions Case No.64/1999 came to be tried by the Sessions Court, Junagadh, for the offences punishable under Sections 376, 363, 342, 506(2) & 114 of the Indian Penal Code. However, since original accused No.4 - Abdul Hasam Mantha had expired, case was abated against him. CR.A/1090/2005 3/10 JUDGMENT 3. According to the prosecution case, appellant Mohmed Hanif Ismail kidnapped Rasidaben Hashan Nurali, aged 14 years, on 23.1.1999, around 2.00 p.m., from Mangrol. It is further the case of the prosecution that the prosecutrix was subjected to intercourse prior thereto by the appellant Mohmed Hanif Ismail, but, as per the prosecution case, rest of the accused persons abetted the offence of kidnapping. 4. Considering the evidence led by the prosecution, the trial Court found that the offence against appellant-accused No.1 Mohmed Hanif Ismail was proved, as stated hereinabove, but, the prosecution could not establish the charges against rest of the accused and recorded their acquittal. 5. Against his conviction, Criminal Appeal No.1090/2005 is preferred by convict-original accused No.1-Mohmed Hanif Ismail Gujarati; whereas Criminal Appeal No.2563/2005 is preferred by the State of Gujarat for enhancement of sentence and Criminal CR.A/1090/2005 4/10 JUDGMENT Appeal No.2564/2005 is preferred against acquittal of accused Nos.2 to 6. 6. On going through the evidence, it is found that the age of the prosecutrix is proved to be less than 16 years. From the FIR as well as from the evidence, it appears that the act of kidnapping on the part of accused No.1 by way of inducement cannot be said to have been properly proved. All the same, the prosecutrix being minor, is taken away from the custody of her father and, therefore, the offence is accepted by the trial Court to have been proved and, therefore, the conviction is recorded. 7. Learned advocate Mr.Vaibhav Vyas, appearing for the convict-appellant, submitted that the conclusion of the trial Court recording conviction may not be possible for him to assail on merits. He, therefore, does not press the appeal, so far as conviction is concerned. He is, however, pressing the appeal on the aspect of quantum of punishment. According to Mr.Vaibhav Vyas, the evidence clearly indicates that there was an affair between the convict appellant and CR.A/1090/2005 5/10 JUDGMENT the prosecutrix. The offence is accepted to have been established only on technicalities viz. that the prosecutrix was below 16 years of age and her consent, therefore, was of no relevance. Mr.Vyas submitted that there is absence of mens rea in the entire episode, so far as the convict appellant is concerned. The appellant himself was an unmarried young boy. Both- the prosecutrix and the appellant belonged to same community and were working together. The appellant-convict has already undergone an imprisonment of nearly four years and, therefore, on the aspect of quantum of punishment, the Court may deal the case sympathetically, by resorting to the Proviso to Section 376 IPC. 7.1 In the appeal preferred by the State against acquittal, notice has been served, but, the acquitted accused persons have chosen not to appear before this Court. Learned advocate Mr.Vaibhav Vyas volunteered to assist the Court as amicus curiae in that matter. He submitted that the FIR given by the prosecutrix is totally silent about any involvement of any of the accused Nos.2 to 6. Her evidence, if seen, would CR.A/1090/2005 6/10 JUDGMENT indicate that they acted on some representation made by accused No.1 – convict appellant that he and the prosecutrix were going to get married. Therefore, there was no mens rea or there was no question of abetting any offence by those accused persons, and the trial Court was, therefore, justified in recording their acquittal. 8. Learned A.P.P. Mr.Bhatt has opposed the appeal preferred by the convict. He submitted that the convict is a fully grown person, whereas the prosecutrix is a young girl and he has taken undue advantage and has thereby committed the offence. The consent of the prosecutrix is of no significance in such a case. He submitted that the appeal by the convict may, therefore, be dismissed. 8.1 Learned A.P.P. Mr.Bhatt submitted that the sentence awarded to the convict is just minimum. The involvement of the convict-appellant is in a serious offence, which is against the society and, therefore, he may be appropriately punished. CR.A/1090/2005 7/10 JUDGMENT 8.2 So far as the appeal against acquittal is concerned, learned A.P.P submitted that original accused Nos.2 to 6 have played a vital role in the offence committed by original accused No.1- the convict appellant and, therefore, they ought to have been convicted with the aid of Section 114 IPC. He, therefore, submitted that the State appeal may be accepted. 9. Having taken into consideration the rival side submissions, since learned advocate Mr.Vyas has not assailed the conviction aspect, the only question that this Court is required to attend is, whether, the quantum of punishment awarded to the appellant is adequate, inadequate or merits reduction. 10. Undisputedly, the prosecutrix and the convict appellant were working together and they had developed affection. Physical relationship was established on a number of occasions prior to the incident. This aspect gets reflected from the medical evidence as well as from her own deposition. It has, therefore, to be accepted that the physical CR.A/1090/2005 8/10 JUDGMENT relationship was established between the prosecutrix and the convict accused, and technically speaking, offence is constituted, as the prosecutrix was below 16 years of age. But, it is nobody's case that the convict appellant wanted to take disadvantage of the situation and used the prosecutrix and thereafter he discontinued the relationship. The convict appellant himself was a young boy and bachelor when the incident occurred. In our view, the element of mens rea is not present. The act has been committed under emotions and not with an intention of committing rape. The case, therefore, deserves to be dealt with sympathetically. The convict appellant has already undergone the sentence of about four years. He, in our view, has been sufficiently punished. Under the circumstances, while confirming the conviction of the appellant convict Mohmed Hanif Ismail Gujarati, his sentence deserves to be altered to the sentence already undergone by him, without altering the quantum of fine. 11. So far as the State appeal for enhancement is concerned, it cannot be entertained only for the CR.A/1090/2005 9/10 JUDGMENT reason that the convict's appeal has been partly accepted by this Court, as discussed hereinabove. Therefore, the State appeal must fail. 12. So far as the State appeal against acquittal of rest of the accused is concerned, we may note that the FIR is totally silent about the involvement of any of these accused persons. It may also be noted that their involvement is shown by the prosecutrix for the first time in her deposition and what is emerging from her deposition is that on certain statement made by the convict accused indicating that he was going to marry the prosecutrix, help was extended. Under the circumstances, so far as accused Nos.2 to 6 are concerned, they may have acted bona fide. The trial Court was, therefore, justified in recording their acquittal. We do not find any merits in the State appeal, so far as acquittal is concerned. 13. For the foregoing reasons, Criminal Appeal Nos. 2563/2005 & 2564/2005 stand dismissed. CR.A/1090/2005 10/10 JUDGMENT Criminal Appeal No. 1090/2005 would stand partly allowed. The conviction recorded by the learned Additional Sessions Judge, Fast Track Court, Junagadh, in Sessions Case No. 64/1999 by judgment and order dated 21.4.2005 is hereby confirmed. So far as sentence imposed for the offence punishable under Section 363 IPC is concerned, it stands confirmed. So far as sentence for offence punishable under Section 376 IPC is concerned, it is altered and reduced to the sentence already undergone by the convict-appellant. The order of fine stands confirmed. Criminal Misc. Application No.15597/2008 stands dismissed in view of the fact that the main appeal has been disposed of today. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)