CR.A/1103/2004 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1103 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 ? ========================================================= HASMUKHLAL JAYANTILAL SONI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HD CHUDASAMA for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/03/2008 ORAL JUDGMENT 1. The appellant is the original accused who was charged with offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. By CR.A/1103/2004 2/10 JUDGMENT the impugned judgement and order dated 7.5.2004 passed by learned Additional Sessions Judge, Mehsana in Sessions Case No. 188/2003, he was found guilty of all the offences. He was sentenced to rigorous imprisonment for five years and seven years respectively for the said offences. Fine was also imposed on him. 2. In the charge, exh.4 framed against the appellant, it was alleged that on 12.5.2003, when the victim girl was studying in 9th Standard and had visited Bileshwarpura at her maternal uncle's house, at that time in the afternoon, the appellant had met her and under coercion told her to meet him at Ahmedabad near Rupam cinema. When the victim girl went there, the appellant took her away and forced her to have extra marital intercourse. It is further alleged that the victim girl was aged 14 years when the incident took place. The appellant had repeatedly committed rape on her at different places. 3. Victim girl Princyben Prakashbhai Hiralal-PW1 was examined at exh.12. She stated that on the date of deposition i.e. on 16.2.2004, her age was 15 years. On 12.5.2003, when there was summer vacation in her school, she had gone to Bileshwarpura. The appellant had met her there and instructed her to meet him near Rupam cinema at Ahmedabad. She identified the appellant who CR.A/1103/2004 3/10 JUDGMENT was present before the Court. The appellant was a teacher in the same school in which she was studying. The appellant had threatened her that if she did not meet him at Rupam cinema, he would defame her in the society. She went to Rupam cinema next day between 12 and 12 :30. The appellant had waited there for her. Both of them went to Kapadia guest house, near civil hospital where they stayed for three days. Every day, the appellant would have intercourse with her. From there she was taken to Vadodara where they stayed in the guest house. They stayed there for one day. There also, the appellant had intercourse with her. They thereafter, came back to Ahmedabad, stayed there for a day. Thereafter, they went to Udaipur and stayed there for five days in the guest house where also the appellant would have physical contact with her. They then came back to Ahmedabad and stayed in Avas guest house. When the appellant had gone to bathroom, she got opportunity to call up her father and ask him to pick her up from V.S. Hospital Gate. Her father and uncle had come to pick her up. They had thereafter, lodged the complaint before the Kalol police station. 3.1 In the cross examination, she stated that she did not think it appropriate to discuss with her cousins sisters or friends about her meeting the accused at Ahmedabad. Though her CR.A/1103/2004 4/10 JUDGMENT mother and other relatives were in Ahmedabad, she also did not think it appropriate to go to them because the appellant had threatened her. She stated that she would have regular bath and changed her clothes during her stay. She agreed that she had not called up her father earlier. She stated that in the guest houses, the appellant would make entry in the name of Sanjay N. Patel for himself and Anita S. Patel for the witness. She denied that she was more than 18 years of age when the incident took place or that she had consented to accompanying the appellant. 4. Father of the victim, Prakashbhai Hiralal-PW2 was examined at exh. 14. He stated that he received a phone call from the victim girl on 23rd May. He along with his brother had therefore, gone to V.S. Hospital to bring her back. At that time victim girl had complained that the appellant had kidnapped her. He further stated that he had informed the police on 16th May about his missing daughter. He stated that his daughter was aged 14 years when the incident took place and was studying in 9th Standard. 4.1 In the cross examination, he admitted that though his daughter was missing on 12th May, he did not file any complaint before the police before 16th May. CR.A/1103/2004 5/10 JUDGMENT 5. Dr.Jagdishbhai Nanjibhai Tank-PW3(exh.15), had carried out the physical examination of the victim girl on 24.5.2003, when he was discharging his duties as Medical Officer, Kalol Municipal Hospital. In his deposition, he stated that victim girl had given history of the incident of having been forced by the appellant to accompany him on 13th May and of having taken from place to place and of having intercourse with her. From the test reports, he could say that the age of the girl could be between 15 to 16 years. 5.1 In the cross examination, he denied the suggestion that if an adult person has intercourse with a girl, the same would invariably leave injury marks in the vagina. 6. Dr. Pravinbhai Gandabhai Patel-PW5(exh.24) was the Medical Officer of Sheth Municipal Hospital, Kalol who had examined the appellant. In his deposition, he stated that the appellant had given history of having stayed with the victim girl on different places in Ahmedabad, Vadodara and Udaipur between 13.5.2003 to 23.5.2003. He had however, denied having sexual intercourse with the victim girl. He had not found any injury marks on the body of the appellant or on his private parts. Significantly, in the cross examination, defence did not question the Doctor about the history being given by the appellant CR.A/1103/2004 6/10 JUDGMENT to this Doctor. 7. One Kanjibhai Ambalal Patel-PW10(exh.33) who was the in-charge principal of Shri C.B. Gandhi Nutan High School, Palanpur was examined to prove the age of the girl. From the school record, he stated that birth date of the victim girl was recorded as 11.10.1988. He had brought along with him birth certificate which was produced at exh.34. 8. Prosecution also examined the managers of different guest houses where the appellant had stayed with the victim girl. 9. The mother of the victim girl, Varshaben-PW6 was examined at exh.27. She stated that her daughter was studying in 9th Standard in Nutan High School, Palanpur and she was aged 14 years. 10.Grand mother of the victim girl Bachiben Himmatlal-PW7 was examined at exh. 28. 11.This in the nutshell is the evidence led by the prosecution before the trial Court. 12.From the evidence on record, it can be clearly seen that the appellant had sexual intercourse with the victim girl on several occasions is not in doubt. The facts that the appellant stayed with the victim girl at different places in CR.A/1103/2004 7/10 JUDGMENT different guest houses at Ahmedabad, Vadodara and Udaipur and that he had sexual intercourse with her on several occasions during their stay together are not in doubt. This has been so stated by the victim girl in her deposition at exh.12. She had given complete narration of the movement of the two together. On 12.5.2003, when she was at Bileshwarpura, she was instructed by the appellant to meet him at Ahmedabad. On 13.5.2003, she was taken to a guest house near Paldi at Ahmedabad. After a few days, she was taken to Vadodara where they stayed in a guest house. They came back to Ahmedabad, stayed for a night and again went to Udaipur and stayed for five days before returning to Ahmedabad. She clearly stated that several times during this period, the appellant had physical relations with her. There is nothing for me to disbelieve this clear version of the victim girl herself. She had no enmity with the appellant, no reason to falsely implicate him in the case. 13.Girl had also given history similarly before Dr.Jagdishbhai Nanjibhai Tank-PW3(exh.15) who had examined her on 24.5.2003. This history was noted down by the Doctor in the case papers. Even the appellant himself had given history to Dr. Pravinbhai Gandabhai Patel-PW5(exh.24) who had examined him on 24th May. According to the Doctor, the appellant had given history of staying together with the victim girl at CR.A/1103/2004 8/10 JUDGMENT different places between 13.5.2003 to 23.5.2003. This aspect was not even seriously challenged by the defence in the cross examination of this witness. 14.Additionally, the version of victim girl Princyben Prakashbhai Hiralal-PW1 was corroborated by the evidence of Dr.Jagdishbhai Nanjibhai Tank-PW3(exh.15). He found that the hymen of the victim girl was ruptured. He opined that it is possible that girl had intercourse in the recent past. 15.The fact that the FSL report did not indicate presence of semen on the clothes of the girl or near her private parts would not change the complexion since admittedly the girl had the occasion to have bath and change her clothes. 16.With respect to the age of the victim girl also, there was sufficient evidence to establish that she was fairly 14½ years of age when the incident took place. Prosecution has already examined in-charge principal of her school Shri Kanjibhai Ambalal Patel-PW10(exh.33). He had brought school records to show that victim girl was borne on 11.10.1988. Her age on the date of incident was thus 14½ years. This was corroborated by evidence of Dr.Jagdishbhai Nanjibhai Tank-PW3(exh.15) where he assessed age of the victim girl between 15 to 16 years on the CR.A/1103/2004 9/10 JUDGMENT basis of her medical reports. Thus the girl was not only minor, she was also below 16 years of age when the appellant repeatedly had sexual intercourse with her. 17.It may be noted that victim girl herself may have been a willing partner and may not have been forced against her wish as is sought to be suggested. Nevertheless, insofar as offence of rape under Section 376 of the Indian Penal Code is concerned, considering the tender age of the girl and the fact that the appellant enticed her out of her house and out of the guardianship and custody of her guardians, offences of kidnapping punishable under Sections 363 and 366 of the Indian Penal Code were also established. 18.It may be recalled that the appellant himself was a teacher in the same school in which the victim girl was studying. He was about 32 years of age when the incident took place. This is not a case where young couple out of naivety and over-enthusiasm were entering into a relationship, repercussions of which were not known to them. This is a case wherein a person of matured age who was in-fact entrusted with task of guiding his own student properly, enticed her out of custody of her guardian, moved around with her at several places for several days till he was caught. All these while, he had sexual intercourse with the victim CR.A/1103/2004 10/10 JUDGMENT girl on numerous occasions. 19.Under the circumstances, I find that the learned Judge committed no error in holding that the appellant was guilty of the offences. Considering the nature of involvement of the appellant, considering rather tender age of the victim girl and considering that the appellant himself was a person of a matured age and in- fact a teacher employed in the same school in which the victim girl was studying, I do not find this is a case where sentence below the minimum prescribed under Section 376 of the Indian Penal Code can be awarded. 20.In the result, I find that the learned Judge committed no error in awarding sentence also. The appeal is therefore, devoid of merits. Same is hereby dismissed. Appeal is disposed of accordingly. (Akil Kureshi,J.) (raghu)