CR.A/149/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 149 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 ? ========================================================= SHAMJIBHAI SUNIYABHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR DP KINARIWALA for Appellant(s) : 1, MR. BHATE APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 02/05/2008 ORAL JUDGMENT 1. Appellant is original accused. By impugned CR.A/149/2005 2/9 JUDGMENT Judgment and order dated 30th November, 2004, he was convicted for offences punishable under Sections 363, 366, 343, 506(2) of IPC. He was sentenced to R.I. for 5 years, 7 years, 6 months and 2 years respectively for the said offences. Fine was also imposed. Substantive sentence was, however, made concurrent. 2. As per charge Exh.5, it was alleged that the accused on 6.1.2001 at 5 O'Clock in the evening forcibly took away minor daughter 'M' aged about 15 to 16 years of the complainant, kept her under confinement for 5 days, during which time, he also committed rape on her. One Kondiyabhai Laljibhai tried to intervene to whom the accused gave a blow with a weapon (paliyu). He thereby committed offences punishable under Sections 363, 366, 376, 343, 324 and 506(2) of IPC. 3. It may be noted that the complainant- Duljibhai Vasava, PW-5, Exh.19 turned hostile and did not support the prosecution case. His wife, Chaudiben Duljibhai, PW-8, Exh.23 also turned hostile. CR.A/149/2005 3/9 JUDGMENT 4. Kondiyabhai Laljibhai, PW-7, Exh.22 though was not declared as hostile, gave completely contradictory versions. In his deposition, he stated that on the date of the incident, he had fallen down at his house which had resulted into injury on his chin. He also stated that the accused had not done anything. Later on, however, he agreed that at the house of the complainant when he was present, the accused had come and dragged the daughter of the complainant. When he tried to intervene, the accused hit with the paliyu on his chin. 4.1 In the cross-examination, he once again took a somersault and stated that nothing had happened on the date of the incident and that he received injury on his chin because he had fallen down. 5. Victim girl- 'M', PW-6, Exh.21, however, stated that the accused had come to her house in the evening and caught her hand and dragged her, Kondiyabhai had intervened to whom the accused had given a blow of paliyu on the chin. His father and CR.A/149/2005 4/9 JUDGMENT mother tried to stop the accused. They were afraid because he was carrying the weapon. The girl was thereafter taken by the accused. She was, thereafter, taken to village Gadikumtha at night where she was confined in a house. At night the accused had forcibly raped her. On the second night also he had raped her. Next day, she was taken to village- Amta on foot where maternal uncle of the accused was living. She was kept there for a couple of days and on the fifth day when she got a chance, she ran away and reached Mankand Khada village on foot. 5.1 In the cross-examination, she denied that she was not kidnapped. 6. Dr.Manojkumar Mishra, PW-12, Exh.33 had examined the victim girl. He found that her breasts were fully developed. He found no injuries on the body of the girl. He had also examined the accused and found no injuries on his body. 6.1 In the cross-examination, he stated that he had found the girl healthy and was therefore, of the CR.A/149/2005 5/9 JUDGMENT opinion that she must be mature. Dr.Manojkumar Mishra had also collected different samples such as saliva, vaginal swab, from the victim girl as well as semen samples etc. of the accused and sent them for analysis. 7. It appears that the prosecution requested for medical check up of the girl to assess her age. No such evidence, if at all collected, was produced on record. The FSL report suggests that the on clothes of the victim girl showed the presence of semen of the group of that of the accused. 8. Investigating Officer had produced the birth certificate of the victim girl at Exh.27 showing her date of birth as 1.9.1984. No witness, however, was examined to show as to on what basis such date of birth was disclosed. 9. Primarily on the above evidence, the prosecution sought to establish the charges. 10. Learned Judge did not find sufficient CR.A/149/2005 6/9 JUDGMENT evidence to convict the accused for offence under Section 376 or under Section 323 of IPC. With respect to the allegations of rape, learned Judge though believed that there was intercourse between the accused and the victim girl, he held that the evidence suggested that such intercourse was not forcible. The learned Judge described at some length absence of any injuries on the body of the victim girl as well as the accused, as also, the fact that though, the victim girl had sufficient opportunities, she made no complaint about the same. 11. I find that the logic adopted by the learned Judge is somewhat confusing. If there was consent on part of the victim girl in the sexual intercourse by the accused with her, the charge of kidnapping become extremely difficult to believe. On the other hand, if the charge of forcible kidnapping was believed, it was thereafter, difficult to discard the statement of the victim girl that the accused had intercourse with her against her wish. Be that as it may, the State is not in appeal against acquittal of the accused for offence punishable under Section 376 of IPC. It is my CR.A/149/2005 7/9 JUDGMENT duty only to find out whether the conviction and sentence recorded by the learned Judge under Sections 363, 366, 343, 506(2) of IPC are valid. 12. At the outset, it may be noted that barring the birth certificate of the victim girl Exh.27, there was no other evidence to establish her age. Though, the witness had stated that she was about 13 years of age on the date of the incident, there is no supporting evidence. The medical evidence is contrary to this assessment of age. The Doctor had found her to be physically fully matured and was prima-facie of the opinion that she would be major. Opinion of a doctor on the basis of ossification tests was not produced by the prosecution. 13. Even the birth certificate was produced by the Investigating Officer and no witness from the Department of Birth and Death Register was examined. Even as per this certificate, the victim girl was born on 1.9.1984. The incident took place allegedly on 6.1.2001. The victim girl was thus about 16 years and 3 months of age when the incident took place. CR.A/149/2005 8/9 JUDGMENT 14. Even otherwise from the available evidence on record, it cannot be denied that the victim girl was less than 18 years of age and the act of taking her out of the care of her guardian would prove the offence punishable under Section 363 of IPC. However, the factum of the victim girl having been forcibly taken away by the accused remains somewhat uncleared. Important witnesses such as the complainant, his wife Chaudiben and injured eye-witness Kondiyabhai have either completely turned hostile or given contradictory versions in their deposition. Even the version of the victim girl that she was taken by force from her house and kept on different places at the house of the relatives of the accused forcibly thus appeared somewhat difficult to believe. 15. Under the circumstances, though, offence of kidnapping under Sections 363 and 366 can be made out, considering the young age of the victim girl and the fact that she has not attained enough maturity to understand the repercussion of going away with the accused, considering the young age of the accused CR.A/149/2005 9/9 JUDGMENT himself, which was stated to be around 20 years from the date of the incident and also considering that there was heavy possibility that the victim girl herself having voluntarily gone with the accused, sentence of 7 years for offence punishable under Section 366 and 5 years for offence punishable under Section 363 of IPC imposed by the learned Judge appears to be very harsh. 16. The jail record suggests that the accused has served out the actual sentence of more than 3 ½ years. In addition thereto, he is also entitled to remission. He has thus effectively served out the sentence of approximately 4 years. 17. Under the circumstances, the conviction of the appellant is upheld, sentence is reduced to one already undergone. Appellant to be released forthwith if not required in any other criminal case. Appeal is disposed of accordingly. (AKIL KURESHI, J.) ashish//