CR.A/771/1987 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 771 of 1987 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 ? ========================================================= HEMENTKUMAR PRAKASHBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, MS PUNANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 06/05/2008 ORAL JUDGMENT 1. Appellant is the original accused. By impugned Judgment and order dated 24.8.1987 passed by CR.A/771/1987 2/15 JUDGMENT learned Additional Sessions Judge, Godhra in Sessions Case No.43 of 1987, he was convicted for offence punishable under Sections 363, 366 and 376 of IPC and sentenced to 2 years, 3 years and 4 years of R.I. respectively. He was also ordered to pay fine. 2. As per charge Exh.2, it was alleged that on 1.8.1986, the appellant kidnapped minor girl 'K' aged about 16 years, daughter of the complainant, Babubhai Valjibhai from his legal guardianship with the intention of forcibly getting married to her. He had also sometime before the said incident, had forcible intercourse with 'K'. He was, thus, charged with offences punishable under Sections 363, 366 and 376 of IPC. 3. Complainant, Babubhai Valjibhai, PW-4 was examined at Exh.16. He stated that his daughter 'K' was born on 29th May, 1970. He had produced before the Court the birth certificate of his daughter at Exh.17. His daughter had studied upto 10th standard. On 1.8.1986, he had gone on duty and returned at 5 CR.A/771/1987 3/15 JUDGMENT O'Clock in the evening. His wife informed him that 'K' had not returned home since afternoon. He inquired with his relatives but 'K' was not found anywhere. On 5.8.1986, he received a letter by post written by his daughter 'K'. From such letter, Exh.15, he learnt that the accused had eloped his daughter. He had thereupon filed the complaint with the Police. 4. Victim girl 'K' PW-3 was examined at Exh.13. She stated that she had passed new SSC examination in June, 1985. While she was studying in the 10th standard, type was one of her subjects. She was attending classes for typing in one Jain Type Classes at Dahod-Godhra Road. The accused was Type Instructor there. Since, she did not know English, she had to seek guidance from the accused. Once the accused had given a letter to her disclosing his affection for her. She had torn the letter at once. Thereafter, the accused told her to meet behind the garden. It was the day of Holi in the year 1986. She had gone there at about 8.30 in the night. She had sat with the accused for sometime. The accused wanted to have CR.A/771/1987 4/15 JUDGMENT intercourse with her which she refused. He, however, forcibly removed her clothes and raped her. After about 10 minutes, she got up and went to her house but did not inform anybody about the incident. From the next month, she stopped getting mensuration. She tried to take some medicine for abortion but it did not work. Once thereafter, when she had gone to buy vegetables, the accused met her and suggested that they should elope. She thought that if she did not go with the accused, her parents would kill her. She decided to go with him so that her parents' prestige was not spoilt. In the afternoon, when her father had gone to work and her mother was sleeping, she left her house along with the accused. She had gone to the Court and made the writing with the help of the advocate. She had signed the writing and some witnesses had also signed. 4.1 From the Court, both of them took a bus to Sivalaya and stayed at the house of the friend of the accused named Sunil. There also the accused had raped her. From there, they came to Godhra. From Godhra, she had written a letter to her parents which was CR.A/771/1987 5/15 JUDGMENT produced at Exh.18. Thereafter, they went to Mumbai and spent six days there. When they ran out of money, they surrendered before the Police. Police sent her to Women's Protection Home. She had refused to go to her father's house. Since she was afraid of him, she stayed there for about 10 to 11 months and delivered a child in Godhra Civil Hospital. Her parents, thereafter, had brought her home. 4.2 In the cross-examination, she admitted that during the type classes, she and the accused had fallen in love with each other. On the day of Holi of 1986, her parents had gone out of town. She admitted that she and the accused had intercourse at her house. She admitted that the garden where as per her deposition, the accused had raped her was situated on the junction, where seven roads meet and that there were large number of Hawkers present there. Till about 10 O'Clock, there was presence of people. She admitted that two had not gone inside the garden. She had met the accused and informed him about her pregnancy. The accused had given her medicine for abortion but it did not work. She, therefore, met the CR.A/771/1987 6/15 JUDGMENT accused again, since the medicine had not worked. She also admitted that she had read the writing before signing it. 5. Exh.14 is a writing dated 1.8.1986 in which it is stated that the accused and the victim girl have voluntarily got married to each other without any force or coercion. In her letter, Exh.15, she had informed her parents that she was sorry to leave the home without informing them but Hemant (i.e. the accused) was a good boy. She has already got married to him. She was also pregnant. Earlier, Hemant could have exploited her but had not done so. They got married willingly. 6. PW-1, Dr.Pramod Kumar, Exh.6 had examined the accused on 10.8.1986 at Dahod Hospital. He found no external injuries on his body including his private parts. 7. Dr.Amita Shah, PW-2, Exh.9 had examined the CR.A/771/1987 7/15 JUDGMENT victim girl. The victim girl had informed that she had married on 1st August, 1986, she found no marks of injuries on her body. She found that the girl was six months pregnant. 8. It is primarily on the above evidence that the prosecution sought to establish the charges. 9. With respect to the victim girl having eloped with the accused on 1.8.1986 and the fact that the two had sexual intercourse earlier, there is virtually no dispute. In-fact, the accused also in his statement under Section 313 of Cr.P.C. admitted that he had intercourse with the victim girl. The questions that call for consideration are whether the intercourse was forcible and even if, there was consent of the victim girl whether she was legally competent to give such consent. Further question that needs to be answered is whether the appellant had kidnapped the victim girl. 10. With respect to the fact that the victim CR.A/771/1987 8/15 JUDGMENT girl voluntarily left her parents house and willingly stayed with the accused for several days in August, 1986, there is no doubt in my mind. Further, it is clear that the victim girl was a consenting partner in the act of sexual intercourse between the two not only in August, 1986 but on the previous occasion on the day of Holi in the year 1986. The evidence on record permits no doubt. 11. Though, the victim girl in her deposition stated that in the garden, the accused had forcible intercourse with her on the day of Holi in the year 1986, her statement on this count does not inspire confidence. There is overwhelming evidence on record to suggest that the victim girl and the accused were in love. In fact, she herself admitted in the cross- examination that during the type classes, she came in contact with the accused and the two fall in love. 11.1 Further, she admitted that the garden was situated where seven roads meet. There were large number of hawkers and several other people till quite CR.A/771/1987 9/15 JUDGMENT late at night. She did not ask for help, she had informed no one after the incident. In fact, after the alleged forcible intercourse, she continued to meet the accused by her on account. 11.2 She also admitted that she had intercourse with the accused in her own house. She admitted that her parents were away on the day of Holi in the year 1986. The accused in his statement under Section 313 of Cr.P.C. stated that he had visited the house of the victim and the two had intercourse on that night. 12. It can thus be clearly seen that the victim girl had willingly permitted the accused to have intercourse with her. Theory of accused having forced himself on the girl is simply not possible to accept. 13. Subsequent conduct of the victim girl also fit with the theory of her consent. She agreed to elope with the accused and joined him on 1st August, 1986 after everyone went to sleep in her house. Her father was away on work and mother was sleeping. The CR.A/771/1987 10/15 JUDGMENT two went to a lawyer and signed writing of having got married. They moved from place to place and returned to the Police Station, when they ran out of money. She had also in the meantime written a letter to her parents clearly stating that she had left the house of her own and willingly got married to the accused since, he is a good person and did not exploit her even after coming to know that she was pregnant. Even after she was brought back, she for a long time refused to go to her parents' house and preferred to stay at Women's Home. 14. The evidence on record, therefore, permits no ambiguity. The accused and the victim girl were in love. Out of impertinence the young couple had physical relations through which victim girl became pregnant. She left her home and eloped with the accused and even tried to get married. 15. Under the circumstances, it cannot be stated that the accused had taken the victim girl out of the care of the guardians. She was aged about 16 years of CR.A/771/1987 11/15 JUDGMENT age and had left her parents home out of her own choice. She had studied upto 10th Standard was a fairly cleaver and matured person. 16. In an order dated 22.11.2007 passed by this Court in Criminal Appeal No.493 of 1990, this Court has made the following observations : “17.5 Reliance was placed on a decision of the Apex Court in the case of Varadarajan v. State of Madras, AIR 1965 SC 942, wherein the Apex Court observed that there is a distinction between “taking” and “allowing a minor to accompany a person”. The expressions are not synonymous. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. It was further observed that : “27. I agree with the contention of the counsel for the appellant that when the girl was about to cross 18 years of age, if not already crossed the age of 18, was mature enough to understand the implications of her steps and had also studied upto 12th standard, her act of leaving her parents custody out of her own free choice would not amount to the appellant taking her away from the care of her parents as is observed by the Apex Court in the case of Varadarajan (supra).” 17. Under the circumstances, I do not find that CR.A/771/1987 12/15 JUDGMENT charge under Sections 363 and 366 of IPC can be stated to have been established. 18. Coming to the question of offence of rape, the victim girl was from the government record shown to have been born on 29th May, 1970. As per her deposition, first act of sexual intercourse between the two had taken place on the day of Holi in the year 1986. Judicial notice can be taken of the fact that festival of Holi falls in the month of March. On the date of the incident, thus, victim girl was three months short of 16 years. In terms of the provisions of Section 376 of IPC, therefore, her consent was not relevant. In that sense, therefore, the accused can be stated to have committed offence punishable under Section 376 of IPC. There are several factors which would suggest that accused, however, cannot be treated in the same manner as a hardened criminal or a sex maniac or a molester. 19. The accused himself was running 22 years on the date when his statement under Section 313 of CR.A/771/1987 13/15 JUDGMENT Cr.P.C. was recorded. Considering the gap of about year and half years between the incident and the date of recording of statement, he was less than 21 years of age when the offence took place. There was an affair between the accused and the victim girl. The victim girl had admitted that they had intercourse at her own house. She was thus a willing participant and consenting party. She in-fact agreed to elope with him once she found out that she was pregnant. Most significantly, even when the accused and the victim girl reported before the Police after they ran out of money, she refused to go to her parents house and she was sent to Womens Protection Home where she stayed for nearly 11 months. This clearly indicates that the girl was not willing to go to her parents' house and was perhaps hoping against hope that she may rejoin the accused. Presumably, on account of her status of minority, she could not do that. The fact of the matter, however, remains that the act committed by the accused was one of youthful impertinence and not of a sex maniac. 20. The incident took place in the year 1986, 22 CR.A/771/1987 14/15 JUDGMENT years have passed since then. It would be wholly inappropriate to send the accused back to the police custody to serve further sentence. During the trial and during the pendency of the appeal, he has suffered imprisonment in the vicinity of 4 & ½ months. In cumulative peculiar facts and by series of mitigating circumstances, I find that ends of justice would serve, if the sentence is reduced to already one undergone. 21. Learned advocate for the appellant placed reliance on the decision of learned Single Judge of this Court in the case of Himat Popatlal Raval V/s. State of Gujarat reported in 1983 GLH 264; wherein, the learned Judge had taken a lenient view considering somewhat similar facts. 22. Reliance was also placed on Division Bench decision in the case of State of Gujarat V/s. Mohanbhai Ravjibhai reported in 1993 (2) GLR 1621; wherein, also the Court had considerably reduced the sentence. CR.A/771/1987 15/15 JUDGMENT 23. However, I have decided the present appeal on the basis of special and peculiar set of facts noted herein above. 24. In the result, appeal is disposed of in following terms: 1. Conviction and sentence of the appellant under Sections 363 and 366 are set aside. 2. Conviction under Section 376 is upheld. Sentence, however, is reduced to one already undergone. 3. Bail bond stands cancelled. 4. Appeal is disposed of accordingly. (AKIL KURESHI, J.) ashish//