CR.A/1417/2003 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1417 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 ? ========================================================= AMINKHAN @ MUNNO S/O HUSENKHAN JUMAKHAN YUSUFJAY - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : THROUGH JAIL for Appellant : MS SADHANA SAGAR for Appellant : MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 15/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/1417/2003 2/12 JUDGMENT The appellant came to be convicted by the Sessions Court, Rajkot by judgment and order dated 24th October, 2003, in Special Sessions Case (Atrocity) No.1/2003, for the offences punishable under Sections 363, 366 & 376 of the Indian Penal Code and was ordered to undergo R.I. for a period of ten years and to pay a fine of Rs. 5000/- for each of the offences punishable under Sections 366 & 376 IPC with a default clause for further punishment for one year, in the event of default in payment of fine. No separate sentence was awarded for the offence punishable under Section 363 IPC. The appellant was also charged for an offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, but, came to be acquitted by the trial Court. It is against the conviction that the appellant has preferred this appeal. 2. The brief facts of the case are that minor Reeta, a daughter of Mohanbhai Pithabhai, the first informant, was allegedly kidnapped/abducted on 1.6.2002 at about 6.00 p.m. from village Khamata of CR.A/1417/2003 3/12 JUDGMENT Padadhari Taluka when she had gone out in the ditch near the road to attend the nature's call along with her sister Ranjanben. According to the prosecution, the appellant came with Dumper at the place and took away Reeta in the said vehicle. At that time, one Ashwinbhai was also sitting in the Dumper. After taking away the prosecutrix, the appellant took her to various places and also had coitus. As per the prosecution case, the date of birth of the prosecutrix is 7.1.1988. The incident occurred on 1.6.2002 and, therefore, at the relevant time, the prosecutrix was below 16 years of age. The first informant-father of the prosecutrix lodged F.I.R.with the police. The offence came to be registered and investigated and ultimately, charge sheet was filed for the offences punishable under Sections 363, 366 & 376 of the Indian Penal Code and under Section 3(2) (v) & (1)(x)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and Special Sessions Case (Atrocity) No.1/2003 was registered. The charge was framed at Exh.5, to which the accused pleaded not guilty and came to be tried and convicted as stated hereinabove. Hence, this CR.A/1417/2003 4/12 JUDGMENT appeal. 3. We have heard learned advocate Ms.Sadhana Sagar for the appellant and learned A.P.P. Mr.Bhatt for the respondent-State. We have also examined the record and proceedings. 4. The bone of contention of the arguments advanced by the learned advocate for the appellant is that there was an affair between the appellant- accused and the prosecutrix and she has moved with the accused willingly, but, because she was below 16 years of age, technically, the offence is held to be constituted. The trial Court has overlooked this aspect and has awarded severe punishment of ten years R.I. with fine of Rs.5000/- for each of the offences punishable under Sections 366 & 376 IPC. She submitted that the appellant is in jail since 25.10.2002 and has almost undergone sentence of more than six years. 4.1 She has drawn our attention to the medical evidence, which shows that the prosecutrix was used to intercourse. She has also drawn our attention to CR.A/1417/2003 5/12 JUDGMENT medical case papers, which reveal that in the history given to the doctor, the prosecutrix has indicated that she went with the accused willingly and had physical relationship willingly. The learned advocate indicated that the prosecutrix and her sister, both have improved upon their version and have then come out with a case that it was against her will that the prosecutrix was taken away and physical relationship was entered into. She, therefore, submitted that the appeal may be appropriately allowed. 5. Learned A.P.P. Mr.Bhatt has opposed this appeal. According to him, the prosecutrix was minor and below 16 years of age and, therefore, her willingness or consent is of no consequence and the trial Court was, therefore, justified in recording conviction and the order may not be interfered with. 6. We have considered the submissions made by the rival sides and have examined the record from that perspective. The first informant Mohanbhai is examined as PW-1 at Exh.13, but, he is said to have no personal knowledge. According to him, the prosecutrix is his eldest daughter and was under- CR.A/1417/2003 6/12 JUDGMENT aged. He, however, during his cross-examination, admits that his marriage was solemnized about 18 years back and his first child was the prosecutrix, which was within one year of his marriage. He admits that he does not have the certificate showing the date of birth issued by Mamlatdar. 7. The prosecutrix is examined as PW.2 at Exh.16. She says that her date of birth is 7.1.1988 and she has studied upto 4th Std. Then she speaks about the incident. She says that she had gone to attend the nature's call along with her sister in the ditch by the road side when the appellant came and took her away in the Dumper. In that Dumper, one Ashwinbhai was also sitting, who came along with them upto Rajkot, where he got down. From there, she was taken to the house of Iqbalbhai at village Vartej. There they went to Kabrastan and offered flowers to the grave of the mother of the appellant. They then went out for dinner and then ultimately went to the field of Iqbalbhai and stayed overnight there in a pacca house. There, according to her, the accused-appellant had intercourse against her will. She admits that she CR.A/1417/2003 7/12 JUDGMENT was taken to a Doctor and was examined by the Doctor. She denies the suggestion that she had gone with the accused of her own will and had physical relationship of her own will. She also denies that there was a love affair between the appellant and herself. 7.1 Dr.Kamalbhai Goswami is examined at Exh.19. He says that he had examined the prosecutrix on 3.6.2002 and found that her hymen was torn and that she was used to intercourse. She had given a history that she had intercourse twice with Aminkhan willingly. The doctor also says that the body of the prosecutrix was fully developed. The doctor's version is supported by contemporaneous record in the form of medical case papers (Exh.22), where the case history, in terms, has been recorded. 7.2 Ranjanben, sister of the prosecutrix, is examined at Exh.23. She says the same story about the accused taking away the prosecutrix while they had gone to attend the nature's call. She says that she had raised shouts when her sister was taken away. She has been cross-examined to show the possibility that she had not seen the occupant of the Dumper. CR.A/1417/2003 8/12 JUDGMENT 8. We have also examined other pieces of evidence, including the F.S.L.Report. 9. On an overall reading of the evidence, we find that the prosecution has rightly been held to have proved the age of the prosecutrix, as the certificate of date of birth issued by the Local Authority has been brought on record at Exh.33 to show that her date of birth is 7.1.1988. The incident occurred on 1.6.2002 and, therefore, she was below 16 years of age when the incident occurred. 10. The learned advocate for the appellant was also not in a position to assail the judgment on conviction aspect, but, her focus was mainly on the quantum of punishment. 11. Once it is established by the prosecution that the prosecutrix was below 16 years of age, her willingness or consent, either in going with the accused or having intercourse with the accused, would CR.A/1417/2003 9/12 JUDGMENT be of no consequence. The fact would remain that a minor was taken away from the custody of her father without his consent and that physical relationship was established with a girl below 16 years of age, whose consent is not relevant. We are, therefore, of the view that the conviction recorded by the trial Court has to be upheld. 12. Now, we come to the conclusion on the quantum of punishment. We notice that the appellant was 15 years of age when the incident occurred. It also transpires from the evidence that the sister of the prosecutrix has changed her version from what was stated by her before the police, where she had stated that the prosecutrix stopped the Dumper and embarked on it voluntarily and went away with the appellant. The prosecutrix has also stated that she had gone with the accused willingly and had established physical relationship twice with the accused willingly. This would support the case of the defence that there was a love affair between the prosecutrix and the appellant. The conduct of the appellant is also required to be noted. He takes the prosecutrix CR.A/1417/2003 10/12 JUDGMENT to his brother's house, he takes her to the grave of his mother,offers flowers and stays over there. All these factors would indicate that it is not a case of forced kidnapping or forced rape. Considering the age of the prosecutrix, an offence can technically be said to have been constituted and proved. But, considering the above factors along with the age of the appellant, we are of the opinion that a sympathetic or lenient view deserves to be taken and, therefore, while confirming the conviction, we are of the view that sentences imposed by the trial Court deserve to be appropriately reduced. 13. Considering the provisions contained in Section 376 IPC, it is clear that law prescribes minimum sentence of seven years. We do not have any special reason for awarding sentence lesser than the minimum prescribed. Therefore, in our view, ends of justice would be served if the sentence awarded to the appellant for the offence of rape is reduced to seven years. So far as sentence for the offence punishable under Section 366 IPC is concerned, for the aforesaid reasons, we feel that the sentence has to be reduced CR.A/1417/2003 11/12 JUDGMENT to seven years of R.I. 14. We notice that the appellant has not been able to engage an advocate of his own and obtained legal aid for conducting his case. This would reflect his financial condition. He seems to have been working as a driver probably. Under the circumstances, we are inclined to reduce the amount of fine to Rs.500/- for each of the offences punishable under Sections 366 & 376 of I.P.C. 15. Resultantly, the appeal stands partly allowed. The convictions of the appellant for the offences punishable under Sections 363, 366 & 376 IPC are confirmed. The punishment part of the order of the trial Court is altered and the appellant is ordered to undergo R.I. for a period of seven years for the offence punishable under Section 376 IPC and to pay a fine of Rs. 500/-, in default, to undergo S.I. for a period of one week. The appellant is sentenced to undergo R.I. for a period of seven years for the offence punishable under Section 366 IPC and to pay a CR.A/1417/2003 12/12 JUDGMENT fine of Rs. 500/-, in default, to undergo S.I. for a period of one week. The conviction of the appellant under Section 363 IPC is also confirmed, but, we do not award any separate sentence therefor, as has been done by the trial Court. The sentences awarded to the appellant are ordered to run concurrently. The appellant would also be entitled to the benefit of set off, if any. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)