CR.A/134/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 134 of 2005 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 ? ========================================================= ANU ALIAS ANUSING LALSING PARDHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MANOJ N POPAT for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/04/2008 ORAL JUDGMENT 1. The appellant is the original accused. By impugned judgement and order dated 30.11.2004 passed by learned Additional Sessions Judge, CR.A/134/2005 2/9 JUDGMENT Rajkot in Sessions Case No. 154/2003, he was convicted for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. He was sentenced to rigorous imprisonment for one year, five year and seven year respectively for the said offences. Fine was also imposed on him. 2. As per charge exh.1, it was alleged that the appellant had kidnapped minor girl 'S' from the custody of her mother and committed forcible intercourse on her thereby committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. 3. Mother of the victim girl 'S' Lalitaben-PW1 was examined at exh.7. In her deposition, she stated that she and her daughter 'S' had come to Rajkot for labour work. About a year back on the date of Uttrayan, her daughter 'S' had gone out at about 8 O' Clock at night. Since she did not return shortly, she tried to inquire about her whereabouts. Upon inquiry, it was found that the appellant and his sister-in-law Savitaben had left with her daughter 'S' and gone to the native place in Madhya Pradesh. 'S' was found after 14 days. She had complained to the witness about being induced into going with the accused and having been raped. Her husband was at the native place in Jalod. He was informed about the incident and had come to Rajkot thereafter. She stated that the age of her daughter was 13 CR.A/134/2005 3/9 JUDGMENT years. 4. Victim girl 'S' was examined as PW2(exh.10). She stated that on the date of deposition, she was aged about 15 years. The appellant and Savitaben had taken her to Kalakut village in Madhya Pradesh where she was kept by the appellant for 15 days at his house and he had committed rape on her. Whenever she resisted she used to beat her up. 4.1 In the cross examination, she denied having stated before the police that she had an affair with the appellant. 4.2 It may be noted that though such suggestion was made to the witness by the defence in the cross examination which was denied, no such corresponding question was put to Investigating Officer to establish that the witness had so stated before the police. 5. Dr. Kishorebhai Limbabhai Ramani-PW4 was examined at exh. 14. He had examined the victim girl who was brought to him on 31.1.2003 with the police yadi. He noted that the girl had not yet started mensurating. Her breasts were not fully developed. There was scanty presence of pubic hair and on her underarms. Her hymen was ruptured permitting entry of two fingers. He stated that normally a girl would start CR.A/134/2005 4/9 JUDGMENT mensurating between the age of 9 to 13 years. Considering the body development, scanty pubic hair and the development of breasts, he assessed the age of girl at 15 years. 6. Dr. Alpaben Jagdishbhai Jethva-PW5(exh.17) had examined the appellant and certified that he was capable of performing sexual intercourse. 7. Dr. Jitendra Jivrambhai Joshi-PW6(exh.20) had examined the victim girl to assess her age. He stated that he had taken out X-rays and also called for opinion from the Dental expert. The opinion on the basis of Radiology was that she was aged between 12 to 13 years. Dental department opined that she was less that 18 years of age. He was of the opinion that assessment based on ossification test would be more reliable. He opined that girl was aged between 12 to 13 years. 7.1 In the cross examination, he stated that ossification test may permit inaccuracy upto two years plus or minus. 8. Kishorsinh Dilipsinh Jhala-PW7(exh.23) was the Investigating Officer. 9. The prosecution on the basis of above evidence based its case against the appellant. CR.A/134/2005 5/9 JUDGMENT 10.Learned advocate Shri Manoj Popat appearing for the appellant original accused submitted that the victim girl had voluntarily gone with the appellant. The two had an affair which is apparent from the conduct of the victim girl. He submitted that the age of the victim girl was not proved on record. The Dental expert opined that she could be below 18 years of age. Though the girl was stated to have studied upto 2nd standard, the school record was not produced before the Court to establish her age. 10.1 Reliance was placed on the decision of Division Bench of this Court in case of Budhiyo Chhaganbhai Vaghri v. State of Gujarat reported in 1991(2) GLR 1243 wherein the Division Bench considering the young age of the accused and other attending circumstances, awarded punishment of two years instead of seven years imposed by the trial Court. 10.2 Reliance was also placed on the decision of Rajasthan High Court in case of Mohan v. State of Rajasthan reported in 2003 Cri. L. J. 1891 wherein the learned Judge found that upon failure on part of the prosecution to prove that the prosecutrix was nearly 18 years of age, offence under Section 363 of Indian Penal Code cannot be stated to have been made out. CR.A/134/2005 6/9 JUDGMENT 11.On the other hand, learned APP Ms. Punani supported the judgement under challenge and stated that the girl was of tender age. Even if she had consented to accompanying the appellant, he could not have had forcible intercourse with her. She therefore, submitted that the offences were rightly held to have been proved. 12.Having heard the learned advocates appearing for the parties, I find that there was ample evidence on record to establish that the victim girl was of extremely tender age. Complainant Lalitaben-PW1, mother of the victim girl stated that 'S' was aged 13 years. In the cross examination suggestion put was that 'S' was aged 16 years which was denied by the witness. Victim girl herself stated that she was on the date of deposition aged about 15 years. Dr. Kishorebhai Limbabhai Ramani-PW4 who had occasion to physically examine the victim girl noticed that her breasts were underdeveloped, pubic hair were scanty and girl had not entered yet mensuration. He opined that normally a girl would start mensurating between the age of 9 to 13 years. He was therefore, of the opinion that the girl was definitely less than 15 years of age. In corroboration, there is also evidence of Dr. Jitendra Jivrambhai Joshi-PW6 who had upon police request assessed the age of the victim girl on the basis of various tests including ossification and dental tests. It is true that CR.A/134/2005 7/9 JUDGMENT the dental expert opined that the girl was under 18 years of age, however, there was no precise assessment of age on the basis of dental tests. On the other hand, on the basis of X-rays and ossification, it was found that the girl was aged about 12 to 13 years. Even as per the Doctor in the ossification test, there is an error margin of two years plus or minus. It means that girl was of tender age. 13.Considering various factors and materials pointing to the age of the girl being barely 13 years or thereabouts, contention of the appellant that the girl was about 18 years of age simply cannot be accepted. 14.Accused himself was aged about 22 years on the date of incident. He had taken away the victim girl 'S' aged barely 13 years from the custody of her mother when the two had come to Rajkot for labour work. Accused thus committed serious offence of kidnapping a minor. 'S' in her deposition stated that after taking her to his village in Madhya Pradesh, accused repeatedly committed rape on her. Even if one were to discard the theory of forcible intercourse, considering the extremely tender age of the victim girl, her consent was not only totally irrelevant, the culpability of the appellant was also quite serious. This was not a case where a young boy and a girl out of affection and CR.A/134/2005 8/9 JUDGMENT impertinence had gone into physical relations. This is a case where the girl of extremely tender age was enticed by the accused who was relatively speaking of matured age. Seriousness of his action and his culpability therefore, cannot be underestimated. 15.It is true that the FIR was filed belatedly. We cannot however, forget that the victim girl and her mother had come a long distance from their native place in search for labour work to Rajkot. Her father was away when the incident took place. He was informed about it after which he joined his wife. Even thereafter, if the parents took some time to deliberate on all aspects including social fall-out of filing such a complaint, resulting in some delay in filing the same, it cannot destroy the prosecution version. 16.I therefore, find that the learned Judge committed no error in convicting the appellant for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. 17.In view of the above discussion, I see no special or adequate reasons for reducing the punishment below the minimum prescribed under the law. 18.In the result, conviction and sentence are CR.A/134/2005 9/9 JUDGMENT upheld. Appeal is devoid of merits. Same is dismissed. (Akil Kureshi,J.) (raghu)