CR.A/1871/2004 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1871 of 2004 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 ? ========================================================= JITESH @ CID MULJI CHARATIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR SIKANDAR SAIYED FOR MR.AJ SHASTRI for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/04/2008 ORAL JUDGMENT Appellant is the original accused. He was charged for offence under sections 363, 366 and 376 of the Indian Penal Code in Sessions Case No.48 of CR.A/1871/2004 2/12 JUDGMENT 2002. By the impugned judgment and order dated 15.10.2004, the learned Additional Sessions Judge, Porbandar, convicted the appellant for the said offence and sentenced him to 3 years, 3 years and 7 years respectively. He also imposed fine of Rs.1000/- for each of the offences. 2. As per charge Ex.8, it was alleged against the accused that on 14.11.2001, between 22.00 hours and 6 hours, he had kidnapped daughter of the complainant aged about 17 years by giving false promise with an intention to have illicit relation outside marriage. He thereafter against her wish had sexual intercourse with her and thereby committed offence punishable under section 363, 366 and 376 of the Indian Penal Code. 3. It may be noted that at the time of the incident, the accused was aged about 19 to 20 years. The victim girl was stated to be about 17 years of age. 4. Complainant, PW-1, Babubhai was examined at Ex.17. He stated that his youngest daughter 'D' who was aged 17 years on the date of the incident was sleeping in the house and he was sleeping on the terrace of the house. When he got up in the morning at 6 O' clock, he did not find 'D' in the house. They inquired about her whereabouts. They learnt that the accused who used to reside in the neighbourhood ran away with his daughter 'D'. Since CR.A/1871/2004 3/12 JUDGMENT they did not find her after inquiring at several places, they lodged a complaint with the police. In the cross-examination, he admitted that when he lodged the complaint, his daughter was already brought to the police station. He had stated the age of his daughter approximately. He did not remember the birth dates of any of his children. He denied the allegations that his daughter had willingly eloped with the accused. He denied that his daughter was aged more than 18 years on the date of the incident. 5. Victim girl 'D', PW-2 was examined at Ex.15. In her deposition, she stated that she had studied upto 7th standard. The incident took place on 14.11.01. A day prior to that, the accused had told her that they have got involved with each other, but their parents would not agree and that therefore,they should elope and get married. At night, he had come to her house and from the window told her to take her clothes with her. He had packed her clothes and at about 11 O' clock quietly left the house with the accused. From there, they came to the bus-stand and hired a rickshaw and reached Porbandar bus-stand and bought two tickets for Vanakbara and reached Vanakbara at 6.30 in the morning. From there, they took a rickshaw to reach Una. The money which they were carrying got over. They then returned to Veraval. From there they went to Porbandar and spent the night at a place called Chopati and slept in the same bed. There, CR.A/1871/2004 4/12 JUDGMENT accused insisted for physical relation which she resisted by saying that till marriage he should not touch her. Accused, however, ignored her and forcibly had sex with her. On the next day, they tried to sell gold coin. The goldsmith told them to come back later. They again went to Chopati where the accused raped her again. They agent went to the market to sell the gold coin. There they met two aunts of the accused. They persuaded them to go with them. At their house, they were kept in separate rooms. She was, thereafter, told to go to her house, but she stated that she should be looked after by the one who has brought her there. Soon thereafter the police arrived with her elder brother and took her to the police station. In the cross-examination, she stated that she had not informed her family members about the suggestion of the accused of eloping with him. From Vanakbara when they were going to Una, they were stopped by police. They told the police that they had run away from home. They clearly told the police that they had eloped. At no point of time, she had complained to anybody about the accused forcing her to have sexual relation. Till she was brought to the police station, she had never left the accused. She in fact, admitted that if they had money, they would have got married. She had agreed that she was willing to get married to the accused. 6. Mother of the victim girl, PW-3, Nathiben, was CR.A/1871/2004 5/12 JUDGMENT examined at Ex.20. She also gave somewhat similar account of what her husband had stated. She did not remember the birth date of her daughter 'D'. 7. Dr.Aminaben Umarbhai, PW-4, Ex.21 was the Medical Officer before whom the victim girl was brought with the police yadi for physical examination. Though she had stated the age of the victim girl was 17 years in the cross-examination, she admitted that no ossification test of the girl was carried out. 8. PW-16, Gopalbhai, Ex.41, brother of the victim girl also does not throw any further light on the actual incident. 9. Arvindsinh Jhala, PW-19, Ex.45 was the IO who had carried out the investigation. He described the manner in which the investigation was conducted. In the cross-examination, he admitted that during his investigation, it was revealed that the victim girl had moved at different places, but had not complained to anyone. During the investigation, it was not revealed that the victim girl had in any manner tried to escape or that the accused had detained her under force or coercion. 10. It is primarily on the above evidence that the prosecution relied for proving the charges. 11. At the outset, it may be noted that there is CR.A/1871/2004 6/12 JUDGMENT little scope for debate that the victim girl 'D' had voluntarily joined the accused and stayed with him for a few days before the two were brought back by the police. There is absolutely no doubt in my mind that the victim had voluntarily joined the accused on her own free will. In fact, in her examination-in- chief itself, she had narrated at some length the manner in which she joined the accused in the night of 14.11.2001. In fact, the accused had proposed to her on the previous day that they should elope since their parents would not agree to their relations. In the night of 14.11.2001, as per the testimony of the victim girl herself, the accused went to her house and asked her to collect her clothes and join him. She, thereupon, left with him. The couple went to different places and spent a few days together. These were all public places and they moved in rickshaw and bus from one place to another. 12. In light of the above background, the question is whether the accused can be held guilty for having kidnapped the victim girl and whether he can be punished for offence of rape. 13. Insofar as the age of the victim girl is concerned, to my mind, there is no conclusive reliable proof. Neither the father nor the mother of the victim girl could give her date of birth. In fact, the complainant, father of the victim girl did not know the birth date of any of his children. There was no medical evidence even approximately CR.A/1871/2004 7/12 JUDGMENT assessing the age of the girl. Though Dr.Aminaben, PW-4, stated that the girl was 17 years of age, her statement was not based on any medical evidence. She had not assessed the age of the girl. She had not taken ossification test. Thus there was no medical evidence to throw any light on the approximate age of the victim girl. 14. It is true that the prosecution produced at Ex.54 a certificate of the Principal of Shri Kharva Primary School, Porbandar dated 19.11.01 stating that the birth date of 'D' was 4.6.84. The Principal of the School was not examined as a witness. On what basis this certificate was issued is not clear. Even if the said certificate was issued on the basis of the school record, in what manner said date of birth was recorded in the school record also remains totally unclear. It would, therefore, be totally unsafe to rely on such a certificate particularly when the parents of the victim girl before the Court could not even give her date of birth. 15. Even if one were to accept the date of birth of 'D' as 4.6.84, it would mean that she was aged nearly 17 years and 6 months when the incident took place. The question of her consent in the sexual intercourse, therefore, becomes relevant. From her evidence, it clearly emerges that she had willingly joined the accused since both desired to get married, but felt that their parents would not agree. This CR.A/1871/2004 8/12 JUDGMENT has been clearly stated by the victim girl in her deposition. She in fact stated that if they had money, they would have got married. When they were brought back by the aunts of the accused and when she was told to go home, she preferred to stay with the accused. All these would clearly demonstrate that she was as much interested in the relation with the accused as the accused himself was. 16. Viewed in this background, can her statement that the accused had sex with her on two occasions against her desire be believed. In addition to her whole-hearted participation in eloping from home, one cannot lose sight of several other circumstances. The accused and the victim girl had after leaving their houses traveled at different places by rickshaw and by public transport. They had in fact tried to sell the gold coin which they had, but failed in the attempt. Twice during the stay, the accused is said to have had sexual intercourse with the victim girl. Before and after such incidents also, the victim girl remained with the accused in full public view. In between they were also intercepted by the police and they informed the police that they left their home and ran away. Even after the accused allegedly raped her, the victim girl did not complain to anyone nor did she try to leave him. Lastly when they were brought to the house of the aunts of the accused, there also, the girl refused to be separated from the accused. The background under which the victim girl admittedly left her house and other attending CR.A/1871/2004 9/12 JUDGMENT circumstances noted herein-above and her conduct of remaining with the accused and insisting on not being separated from him till the last are factors which are clearly opposed to the theory of the accused having been forcibly had intercourse with the victim girl. The charge of rape, therefore, must fail. 17. This brings me to the question whether the appellant had committed offence under sections 363 and 366 of the Indian Penal Code. 18. As already noted, the exact age of the girl is not established on record. Even if one were to believe that she was born on 4.6.94, as suggested by the prosecution itself, she was nearly 17 years and 6 months when the incident took place. As noted, she had willingly and voluntarily left her parents' house without any inducement, force, threat or coercion. 19. Section 361 of the Indian Penal Code which defines kidnapping from lawful guardianship reads as follows:- “361. Kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation – The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such CR.A/1871/2004 10/12 JUDGMENT minor or other person. Exception – This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.” Thus, even if the victim girl is believed to be less than 18 years when the incident took place, the question is did the accused take her or entice her away from the lawful guardianship of her parents. 20. I find that the victim girl was not a totally uneducated girl. She admittedly studied upto 7th standard. She was a person of fair maturity and able to understand the repercussions of her actions. She had left her parents house on her own and she was not taken away or enticed by the accused. Under the circumstances, even if it is believed that she was less than 18 years of age when the incident took place, the accused cannot be stated to have kidnapped her as defined under section 361 of the Indian Penal Code so as to be liable for punishment under section 363 or 366 of the Indian Penal Code. 21. 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. CR.A/1871/2004 11/12 JUDGMENT 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).” 22. Under the circumstances, I find that the conviction and sentence of the accused of the said offence is wholly unjustified. His conviction and sentence is therefore required to be set aside. 23. In the result, the appeal succeeds. The conviction and sentence of the appellant is set aside. The appellant is acquitted. He shall be released forthwith if not required in any other criminal case. Fine if paid shall be refunded. The appeal is disposed of accordingly. (Akil Kureshi, J.) CR.A/1871/2004 12/12 JUDGMENT (vjn)