CR.A/1123/2003 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1123 of 2003 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 ? ========================================================= RAMSUHANI @ RAMSUBHAG BACHUSUHANI MALLA - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : THROUGH JAIL for Appellant.MR JM BUDDHBHATTI for Appellant. MR UR BHATT, APP, for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 06/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/1123/2003 2/14 JUDGMENT The appellant came to be tried by the Sessions Court, Ahmedabad Rural, in Sessions Case No.41/2003, for the offences punishable under Sections 363, 366 & 376 of the Indian Penal Code, on 5.8.2003. 2. The prosecution case against the appellant- accused was that he kidnapped/abducted minor Poonam from the lawful guardianship of her father on 20.3.2002 between 6.45 p.m. and 12.00 noon from Vejalpur area of Ahmedabad and thereafter, the appellant-accused is alleged to have taken the prosecutrix to various places and to have established physical relationship with the prosecutrix and thereby, he is alleged to have committed an offence punishable under Section 376 IPC. 3. The F.I.R.,in this context, was lodged by the father of the prosecutrix with Vejalpur Police Station (Exh.33), on the basis of which the offence was registered and investigated. The police having found sufficient material to connect the appellant with the crime, filed charge sheet in the Court of CR.A/1123/2003 3/14 JUDGMENT learned J.M.F.C., Ahmedabad Rural, who, in turn, committed the case to the Court of Sessions, as the offence is exclusively triable by the Court of Sessions. On the case being committed, Sessions Case No.41/2003 came to be registered and charge was framed against the appellant at Exh.5. The accused- appellant pleaded not guilty to the charge and claimed to be tried. 4. After considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in establishing the charges against the accused for the offences punishable under Sections 363, 366 & 376 I.P.C., and convicted the accused-appellant for the said offences and sentenced him to undergo R.I. for 5 years, 7 years and 10 years respectively for the said offences and also imposed fine of Rs.500/-, Rs.1000/- and Rs.1000/- respectively with default clause. All the sentences were ordered to run concurrently. 5. We have heard learned advocate Mr.J.M.Buddhbhatti appearing for the appellant and CR.A/1123/2003 4/14 JUDGMENT learned A.P.P. Mr.U.R.Bhatt for the State. We have also examined the record and proceedings. 6. Learned advocate Mr.Buddhbhatti submitted that as per the evidence, the incident occurred on 20.3.2002 and the date of birth of the prosecutrix is 15.3.1987. The prosecutrix was, therefore, 15 years & 5 days old at the time of the incident. 6.1 Mr.Buddhbhatti submitted that the evidence, as it stands, indicates that the prosecution has established the age aspect by bringing on record the General Register of students of the school as well as a copy of the school leaving certificate, and this aspect does not seem to have been seriously challenged by the defence during the trial. 6.2 Mr.Buddhbhatti submitted that the defence of the appellant is that it was a case of consent because the prosecutrix has moved with the appellant at different places for a long time and nowhere has she made any complaint to any one, either of having been kidnapped or abducted or having been subjected CR.A/1123/2003 5/14 JUDGMENT to physical relationship against her will. Mr.Buddhbhatti submitted that the medical evidence indicates that no history of any offence is given to the doctor by the prosecutrix and the medical evidence does not indicate any recent intercourse with the prosecutrix. Mr.Buddhbhatti submitted that there were no injuries or marks of injuries on the person of the prosecutrix or the accused and, therefore, the trial Court erred in recording conviction. Mr.Buddhbhatti submitted that the blood group of the accused and the prosecutrix is same, as per the FSL report and, therefore, it was not proved that the offence of rape was committed. The appeal, therefore, may be allowed and the conviction may be set aside and the appellant may be acquitted. 7. The learned A.P.P. has opposed this appeal. According to him, the age of the prosecutrix is not under challenge and the age of the prosecutrix was 15 years & 5 days on the date of the incident and in view of the provisions of Section 375 IPC, consent of the prosecutrix would be insignificant. CR.A/1123/2003 6/14 JUDGMENT 7.1 Mr.Bhatt submitted further that the medical evidence may not indicate the presence of injuries or marks of injuries, as there may not be resistance from the prosecutrix because of allurement that had been given to her. 7.2 Mr.Bhatt submitted that even if the prosecutrix was a consenting-party, her consent would be insignificant in light of the provisions of Section 375 IPC. 7.3 Mr.Bhatt further submitted that it has come in evidence that the accused-appellant was already married before the incident and that aspect has not been challenged just as the age of the prosecutrix is also not challenged by the defence. The only defence that is taken during the trial is that of consent by the prosecutrix and that, as can be seen from the evidence, would be insignificant because of her age. 7.4 Mr.Bhatt submitted that the absence of evidence of recent intercourse would not abrogate the effect of the act, which is committed during the CR.A/1123/2003 7/14 JUDGMENT earlier part of time-slot during which the offence is committed. It is submitted that similarity in blood group of the prosecutrix and the accused would not affect the case of the prosecution in any way. He submitted that the trial Court was, therefore, justified in recording the conviction and the appeal may, therefore, be dismissed. 8. We have examined the record and proceedings. The doctor, who examined the prosecutrix and the accused, is Dr.Vinodchandra Keshavlal Acharya (PW.1), examined at Exh.7. He says that on physical examination of the prosecutrix, he did not find any external injury, but, her genital was not well developed, pubic hairs were not fully developed and there were no stains of blood or semen. The doctor states that the prosecutrix may not have been subjected to intercourse in recent past of her medical examination, but, may have been subjected to it at the earlier point of time because her hymen had an old tear. During his cross-examination, the Doctor denies the suggestion that the prosecutrix was used to frequent intercourse and that he has not stated so CR.A/1123/2003 8/14 JUDGMENT in the certificate Exh.8 issued by him. 9. The prosecutrix is examined at Exh.35. She says that her birth-date is 15.3.1988 (however, it appears to be a mistake, as the certificate indicates that her date of birth is 15.3.1987). She further says that on the date of the incident, she was going to her school when the appellant intercepted her and forced her to join him and took her to a multi- storeyed Apartment House under the pretext of the father of the prosecutrix having fallen sick. The prosecutrix then goes on to say that an aged person asked them as to what they were doing and took her school-bag away and asked her to bring her father. According to her, the accused was manhandled and thrown out of the Apartment-House. Again, the accused took her with him to his friend's house and then the accused went home and brought Rs.2000/-. Thenafter they went to the Railway Station in an auto-rickshaw. From there, she states that she was taken to various places like Delhi and other places like Barva. She says that she then learnt that the accused was married. She says that she was taken to Ludhiana also CR.A/1123/2003 9/14 JUDGMENT and they were staying there in a room as husband- wife. As she was asked to disclose that they are the lawfully wedded couple and she should not say that she had eloped with him. She says that they went to village Gonda to attend a marriage in the family of the accused. The prosecutrix says that she was kept in a room at Ludhiana, where the accused-appellant established physical relationship with her off and on. The prosecutrix is subjected to cross- examination. The tenor of her cross-examination would only go to show that, according to the appellant- accused, there was a love affair between the two and that the prosecutrix was a consenting party to the coitus. 10. There are other pieces of evidence, which we do not propose to discuss, as the case can be decided on the basis of the above two material pieces of evidence. 11. It is clear from the evidence on record that the age of the prosecutrix, so also her date of birth are not challenged by the defence at any point of time. CR.A/1123/2003 10/14 JUDGMENT Undisputedly, therefore, the date of birth of the prosecutrix is 15.3.1987 and the incident occurred on 20.3.2002. On the date of the incident, therefore, the prosecutrix was 15 years & 5 days old. 11.1 It is also required to be noted that the case of the prosecutrix that she was taken away by the accused, is not seriously challenged. What is sought to be brought on record is that she was in love with the accused and that she went with him on her own volition and had intercourse with her on her own volition. 11.2 In our view, this defence is of no help to the accused-appellant for the reason that if the provisions contained in Section 375 IPC, particularly Sixthly of the said section, are taken note of, consent of the prosecutrix becomes insignificant, if she is below the age of 16 years. It has come on record that she was 15 years & 5 days old as per the date of birth registered in the school record. The medical evidence also indicates that her genitals were not well developed, which would go to show her CR.A/1123/2003 11/14 JUDGMENT age aspect. We are, therefore, of the view that the trial Court was justified in accepting the age of the prosecutrix as below 16 years and holding that her consent was irrelevant. 11.3 It is also to be noted that so far as kidnapping/abduction is concerned, it is not seriously challenged by the defence. The version given by the prosecutrix is sought to be watered down by cross-examining her on the aspect that though she had opportunity to escape or to shout for help, she had not done so, but, the only act of taking her away from the lawful guardianship of her father, as described by the prosecutrix, is not seriously challenged. 12. We may also record that the accused was a married person even before the date of the incident and as per the evidence of the prosecutrix, she learnt about this only after she went to the home- town of the accused-appellant. These aspects of the case, viz. appellant being married and the prosecutrix coming to know about it on going to his CR.A/1123/2003 12/14 JUDGMENT home-town only, are not challenged by the defence during the trial. 13. In view of the foregoing discussion, it is clear that the charges against the appellant have rightly been held to have been proved by the prosecution. 14. It was indicated that there is no medical evidence as to rape and that the report of the Serologist would indicate that the group of blood found on the clothes was of `B' group and the blood group of both – the prosecutrix and the accused, is the same. In this regard, we may observe that the medical examination of the prosecutrix had taken place after a lapse of about five months and it is not the case of the prosecutrix that she was subjected to forced intercourse in the recent past of her medical examination. On the contrary, when she says that off and on, the accused indulged in physical relationship, her consent is not significant. It cannot be overlooked that when a young girl of 15 years of age was taken away from her known environment and was taken to a place which was CR.A/1123/2003 13/14 JUDGMENT not known to her, her capacity or ability to resist or complain, would automatically be diminished. Under the circumstances, when the prosecution has specifically alleged that there was physical relationship by the accused and the medical evidence shows that there was old tear of hymen, indicating intercourse, absence of any injury or marks of injuries would not be of any significance. The blood group, as indicated in the Serologist report (Exh.41), would only show that the clothes of the prosecutrix were stained with human blood of `B' group. That saliva swab was of `B' group of both – the accused and the prosecutrix. This situation would only corroborate, if at all, the case of the prosecutrix, but, it would not disprove the case of the prosecutrix or falsify the case of the prosecutrix. The contention raised by learned advocate Mr.Buddhbhatti, therefore, cannot be of any help to the accused-appellant. 15. For the foregoing reasons,in our view, the trial Court was justified in recording conviction for the offences punishable under Sections 363, 366 & 376 of CR.A/1123/2003 14/14 JUDGMENT the Indian Penal Code and we do not find any reason to interfere with the conviction or even with the sentence part of it. The appeal, therefore, must fail and stands dismissed. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)