CR.A/1122/2006 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1122 of 2006 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 ? ========================================================= ANOPSINH JILUJI WAGHELA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YV BRAHMBHATT for Appellant(s) : 1 - 2.MR JR DAVE for Appellant(s) : 1 - 2.MR RJ GOSWAMI for Appellant(s) : 2, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 24/04/2008 ORAL JUDGMENT 1. Appellants are original accused Nos.1 and 2 CR.A/1122/2006 2/16 JUDGMENT respectively in Sessions Case No.12 of 2006. By impugned Judgment and order dated 8.6.2006, they were convicted for offences punishable under Sections 363, 366 read with Section 114 of IPC. They were sentenced to 7 years of R.I. for both the offences and also directed to pay fine of Rs.10,000/- each for each offence. Substantive sentences were to run concurrently. 2. As per charge Exh.3, it was alleged against them that they along with accused No.3, Shardaben Mafatgiri and other absconding accused had kidnapped minor girl, Sonal, aged about 13 years on 6.10.2005 with the intention of forcing her to get married against her wish. 3. Father of the girl, Tejabhai Lakhabhai Rabari, complainant was examined as PW-2 at Exh.14. He stated that his daughter, Sonal, was aged about 13 years on the date of the incident. In the afternoon he had gone out for grazing cattle. He returned home at about 6 to 7 O'Clock, at which time, he learnt that his daughter, Sonal, was not at home. He CR.A/1122/2006 3/16 JUDGMENT inquired about her with the relatives and other villagers. He met Rabari Mafabhai Ratnabhai, who informed him that in the afternoon, when he was going towards his house, he had seen the present appellants along with Shardaben Kalugiri and Shankarsinh going in a rickshaw. The witness had given the complaint before the Police about those people having kidnapped his daughter. He produced the birth certificate of Sonal at Exh.15 which showed her date of birth as 20th November, 1992. He identified appellant No.1 Anopsinh Jiluji Waghela as well as Shardaben before the Court. He, however, could not identify appellant No.2 i.e. Virendrasinh Ishwarsinh Chavda. 3.1 In the cross-examination, he stated that he was residing in Limbodara since birth. The village has population of about 2000 houses. He had, however, not tried to inquire as to in which rickshaw his daughter, Sonal, was taken away. No one other than Mafabhai had informed him about Sonal being taken in a rickshaw. 4. PW-3, Mafabhai Rabari was examined at CR.A/1122/2006 4/16 JUDGMENT Exh.17. He stated that on the date of the incident, he had gone out for cattle grazing. At about 2.30 in the afternoon, he was coming home for food when he saw the appellant No.1, Kalaji Mafaji, Vinuji Raghuji, Shankarsinh and Shardaben with Sonal in a rickshaw. The rickshaw was going towards Grambharti village. In the evening, since father of Sonal was looking for her, he had disclosed this information to him. He also identified accused No.1- Anopsinh Jiluji Waghela, present appellant No.1 and Shardaben before the Court. He did not identify Virendrasinh Ishwarsinh Chavda, present appellant No.2- original accused No.2. 4.1 In the cross-examination, he agreed that he had not taken down the number of rickshaw. The rickshaw was not from Limbodara village. He could not recognize the driver. 5. PW-4, Rukhiben Tejabhai Rabari, Exh.18 is the mother of the kidnapped girl-Sonal to whom Sonal had narrated the incident after she was brought home. However, this part of the version being hearsay, one CR.A/1122/2006 5/16 JUDGMENT may concentrate on deposition of the victim girl herself. 6. Victim girl- Sonal, PW-5, was examined at Exh.19. She stated that on the date of the incident, when she was going to the house of one Jadiben, original accused No.3, Shardaben called her home and offered her sweet. After consuming the sweet, she lost consciousness. When she regained consciousness, she was in a room. One Shankar came there and threatened her that she should get marry to Kalugiri, failing which, he would show a cassette to her relatives. Later on, Kalugiri came and told her to get marry with him. She was also threatened by Anopsinh Jiluji Waghela, present appellant No.1, Shardaben, Vinuji Raghuji and Virendrasinh Ishwarsinh, present appellant No.2. She identified both the appellants as well as Shardaben before the Court. 6.1 In the cross-examination, she could not state as to how she was carried from Shardaben's house to the room. She denied that Kalugiri had taken CR.A/1122/2006 6/16 JUDGMENT her on the Motorcycle. She admitted that before seeing appellant No.2, Virendrasinh, she did not know his name or the address. She denied the suggestion to the effect that she had voluntarily gone with Kalugiri or that she had an affair with him. 7. Dr.Aporva Nayak, PW-6, Exh.20 had examined Sonal on 15th October, 2005 at Municipal Hospital at Kalol. On the basis of the medical report, he assessed the age of the victim girl between 14.5 to 16 years. He found that her hymen was ruptured. 8. At this stage, one may take note of deposition of PW-1, Baldevbhai Chudabhai Desai, Exh.10 who was a panch-witness, for panchnama of seizure of Esteem Car allegedly intercepted by police on 10th October, 2005. Deposition of this witness, needs to be seen in light of the deposition of Shankarbhai Rabari, PW-7, Exh.25. 8.1 PW-1, Baldev Chudabhai Desai, stated that on 10th October, 2005, he was called by the Police to be a panch along with Shankarbhai Prabhatbhai Rabari. CR.A/1122/2006 7/16 JUDGMENT They sat in a private vehicle for going from Kalol to Kathlal. While they were so traveling, they saw one esteem car which they chased and intercepted and Shankar was inside the car who ran away. Virendrasinh, i.e. present appellant No.2, was present who was arrested by the Police. Esteem car number was 7142. Panchnama of the seizure of the car was drawn. One Surpalsinh who was in the car, however, ran away. 8.2 At this stage, it may be noted that in the panchnama Exh.11, there is no mention of Virendrasinh being arrested by the Police. In-fact panchnama suggests that all the persons traveling in the esteem car managed to run away. 9. PW-7, Shankarbhai Rabari at Exh.25, was also panch for the same panchnama. He stated that his sister, Rubiben, complained to him that Sonal was missing. He along with Karansinh went to Limbodara to inquire about Sonal. They had gone to Kapadvanj where they went to one Bhumi Appartment along with Kalugiri. However, he escaped from the rear door. CR.A/1122/2006 8/16 JUDGMENT Virendrasinh, appellant No.2, herein met the witness saying that the house belongs to him. He thereafter came back to Limbodara next day. He along with police were going in a private car. He saw one green esteem and recognized as the car of Surpalsinh. They chased the car, intercepted and caught Virendrasinh. He stated that esteem car had Reg. No.GJTT 7142. Virendrasinh informed them that besides him in the car, there were Shankarsinh and Surpalsinh but they managed to escape. 9.1 In the cross-examination, he stated that he had gone to look for Sonal with Kalugiri to Kapadvanj on his own and it was a day or two before 10th October, 2005. 10. Investigating Officer, Mr.Vashantlal Sharma, PW-9 was examined at Exh.27. He stated that on 14th October, 2005 on prior information, Anopsinh Jiluji- Appellant No.1 and Virendrasinh appellant No.2 were arrested from the sim of the village – Limbodara. 11. Essentially on the above evidence, the CR.A/1122/2006 9/16 JUDGMENT prosecution sought to establish the charges against the accused persons. 12. In so far as the age of the victim girl is concerned, there is hardly any doubt that she was of tender age. The prosecution had produced at Exh.16, Birth Certificate of Sonal which recorded the date of birth as 20th November, 1992. The incident took place on 6th October, 2005. The girl was thus less than 13 years of age as per her birth certificate. No serious challenge to this has been made by the defence. In corroboration, we also have the medical report in which according to Dr. Aporva Nayak, PW-6, Exh.20, assessed the age of the girl between 14.5 to 16 years of age. There is no reason to discard the date of birth recorded in the Government record, which was a preexisting document particularly, when there was other reliable medical evidence to corroborate the government record. It would thus stand proved that girl was bearly 13 years of age on the date of the incident. Her very young age is extremely significant since even if she was not physically or through other means forcibly taken out of the custody of the CR.A/1122/2006 10/16 JUDGMENT parents, the offence of kidnapping still stands sustained in view of her extremely young and tender age. 13. The fact that Sonal was taken out of the custody of the parents is not in doubt. The fact that she was nearly 13 years of age also stands proved. The question is whether the present appellants or any of them were responsible for committing the offence of kidnapping. 14. Insofar as involvement of Virendrasinh, present appellant No.2, is concerned, I find that his involvement remains a matter of suspicion. There are number of contradictions as to his presence or his involvement in the entire incident. 15. Firstly, father of the victim girl PW-2, Tajabhai Lakhabhai Rabari, in his deposition did not mention Virendrasinh, appellant No.2, as one of the persons whom Mafabhai PW-3 had seen going with Sonal in the auto rickshaw in the afternoon of 6th October, 2005. PW-3, Mafabhai Rabari also did not name CR.A/1122/2006 11/16 JUDGMENT appellant No.2, Virendrasinh, as one of the persons whom he saw in the auto rickshaw with Sonal in the afternoon of 6th October, 2006. 15.1 Additionally, neither PW-2 Tajabhai Lakhabhai Rabari nor PW-4 Rukhiben Tejabhai Rabari identified appellant No.2 before the Court though both of them successfully identified appellant No.1 Anopsinh as well as original accused No.3 Shardaben (not an appellant in the present appeal). 15.2 Additionally and more importantly, I find that there is great deal of controversy as to the exact point of time and the manner in which, this accused was arrested by the police. 15.3 As already noted, panch- witness PW-1 Baldevbhai in his deposition, Exh.10 stated that when he was traveling in a private car along with the police party, an esteem car was intercepted from which though other passengers escaped, Virendrasinh, appellant No.2, was apprehended on the spot by the Police. This incident took place on 10th October, CR.A/1122/2006 12/16 JUDGMENT 2005. 15.4 PW-7, Shankarbhai, who was also part of the same party also stated in his deposition Exh.25 that while traveling with the police in a private car, he saw a green esteem and recognized as the car of Surpalsingh. Surpalsingh ran away. They could catch hold of Virendrasinh, appellant No.2. The incident had taken place on 10th October, 2005. 15.5 The Investigating Officer, however, had shown the arrest of Virendrasinh, accused No.2, on 14th October, 2005. This is clear from his deposition at Exh.27. From the case diary, arrest memo and the application made to the Court for remand of Virendrasinh, accused No2, also it clearly emerges that the Virendrasinh, accused No.2, was stated to have been arrested on 14th October, 2005. In fact as per the deposition of I.O. Virendrasinh, accused No.2, was apprehended from the sim of Village Limbodara. 16. Thus, there is very serious conflict between the contradictory versions emerging from the record CR.A/1122/2006 13/16 JUDGMENT regarding time, place and the manner in which appellant No.2 Virendrasinh was arrested. Neither the version of PW-1, Baldevbhai, nor the version of PW-7, Shankarbhai in this regard has been challenged by the prosecution, nor explanation is forthcoming about his seemingly irreconcilable evidence on record. 17. The scanty evidence that one has against appellant No.2, Virendrasinh, about his involvement and the clear attempt on part of the investigation to twist his arrest would make his conviction on the basis of such circumstances extremely unsafe. 18. To recapitulate, name of Virendrasinh has not been mentioned by PW-3, Mafabhai as one of the persons traveling in the rickshaw with Sonal. He was not identified before the Court either by complainant PW-2, Tejabhai or Mafabhai PW-3. The time, place and the manner of arrest of this accused remains surrounded in mystery. His false involvement therefore cannot be discarded. CR.A/1122/2006 14/16 JUDGMENT 19. Therefore, despite Sonal PW-5, stating before the Court that one of the persons who threatened her was Virendrasinh, appellant No.2 herein, solely on this statement, considering other controversial versions, I do not find that conviction against him can be safely recorded. Conviction and sentence of appellant No.2 is therefore, required to be set aside. 20. Case if appellant No.1, Anopsinh, however, stands on a vitally different footing. PW-2, Tejabhai stated that he was one of the persons who accompanied Sonalben in the rickshaw in the afternoon on 6th October, 2005, the date on which Sonal went missing. This was stated to the complainant by Tejabhai on the same evening as is emerging from deposition of the complainant PW-2 Tejabhai. Additionally, I also find that victim girl, Sonal, also clearly stated that Anopsinh was one of the persons who had threatened her during her confinement Anopsinh was identified by Sonal before the Court. Thus considering the above evidence, I find that involvement of Anopsinh was CR.A/1122/2006 15/16 JUDGMENT rightly believed. 21. It was, however, vehemently contended on behalf of the appellants that deposition of Mafatlal PW-3 cannot be believed since there are number of improbabilities in his account of having seen Sonal with 5 other persons in auto rickshaw when no other witnesses have stated so. It was also contended that from the evidence on record, it clearly emerges that Sonal voluntarily left her house and it is not a case of force or coercion. Both these arguments would not succeed in getting acquittal for appellant No.1. For a second, even if one were to discard version of Mafabhai, PW-3, there was direct evidence of victim girl Sonal herself who had clearly involved Anopsinh. Additionally, I find that age of Sonal was proved to be about 13 years. Considering her tender age, the question of her willingness would be wholly redundant. 22. It was, further, submitted that in any case sentence should be reduced. However, considering the extremely tender age of the girl, the fact that several persons were stated to have been involved in CR.A/1122/2006 16/16 JUDGMENT the incident and considering all relevant facts and circumstances, I do not find any case for reduction of sentence. 23. In the result, appeal succeeds in part and is disposed of in following terms: (i)Conviction and sentence of appellant No.1 is sustained. (ii) Conviction and sentence of appellant No.2 is set aside. He shall be released forthwith, if not required in any other criminal case. Fine, if any paid, shall be refunded. The appeal stands disposed of in above terms. (AKIL KURESHI, J.) ashish//