200 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 21 of 1984 with CRIMINAL APPEAL No 51 of 1984 With CRIMINAL APPEAL nO.263 Of 1984 For Approval and Signature: Hon'ble MR.JUSTICE K.J.VAIDYAsd/- and Hon'ble MR.JUSTICE D.G.KARIA sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? yes 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 2 to 5 No. -------------------------------------------------------------- VALAND ARVIND RANCHHODBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 21 of 1984 MR MANOJ N POPAT for Petitioner PUBLIC PROSECUTOR for Respondent No. 1 2. Criminal AppealNo 51 of 1984 MR JD AJMERA for Petitioner PUBLIC PROSECUTOR for Respondent No. 1 3. Criminal Appeal No.263 of 1984 Mr.D.N.Patel, A.P.P. for Appellant State. Mr.M.N.Popat, Advocate for respondent No.1 Mr.J.D.Ajmera,Advocate for respondent No.2 Mr.U.A.Vyas, Advocate for respondent No.3 Mr.P.S.Champaneri,Advocate for respondent No.4 Mr.K.B.Anandjiwala,Advocate for respondent No.5. -------------------------------------------------------------- CORAM : MR.JUSTICE K.J.VAIDYA & MR.JUSTICE D.G.KARIA Date of decision: 30/01/97 ORAL JUDGEMENT(Per Karia,J.) All these three appeals arise out of judgment dated November 29,1983 rendered in Sessions Cases Nos.32 and 34 of 1983 in the file of the learned Additional Sessions Judge, Surendranagar. By the impugned common judgment, the learned Judge ordered to acquit all the accused Nos. 1 to 5 for the offence of rape under section 376 of the Indian Penal Code and for the offence of criminal conspiracy under section 120B of Indian Penal Code. The learned Judge also ordered to acquit accused Nos.3,4 and 5 for the offence under section 366 of the Indian Penal Code read with section 120B of the Code. Accused No.1 was also acquitted for the offence under section 5(1)(b),(c) and (d) of Suppression of Immoral Traffic in Women and Girls Act,1956 (now the Immoral Traffic (Prevention) Act,1956, as amended by substituting for the words "the supression of immoral traffic in women and girls" by Suppression of Immoral Traffic in Women and Girls (Amendment) Act (44 of 1986), as amended with effect from 26.1.1987. Accused No.2 was acquitted for the offence under section 5(1)(b),(c) and (d) of the said Act read with section 109 of the Indian Penal Code. The learned Judge, however, convicted the accused No.1 (Appellant of Criminal Appeal No.21/84) for the offence under section 366 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. The accused No.2 (appellant of Criminal Appeal No.51/84) was also convicted for the offence punishable under section 366 read with section 114 of the Indian Penal Code for abetment and was sentenced to undergo rigorous imprisonment for two years. The accused Nos.1 to 4 were tried for the offences punishable under sections 120B, 366,367,373 and 376 of the Indian Penal Code in Sessions Case No.32/83 whereas the accused No.5 was tried for the said offences in Sessions Case No.34/83 and both the said cases were consolidated. A charge at Exh.7 in respect of the aforesaid offences was framed against all the accused persons to which they pleaded not guilty. At the time of recording the evidence of the prosecution witnesses, the application at Exh.22 was submitted on August 19,1983 for the purpose of framing charge for the offence of procuring, inducing or taking person for the sake of prostitution punishable under section 5(1)(b),(c) and (d) of Immoral Traffic (Prevention) Act. The said application was granted and accordingly further charge for the offence punishable under section 5(1)(b),(c) and (d) of the said Act was framed against accused Nos.1 and 2 on August 20,1983. Both the accused Nos.1 and 2 pleaded not guilty to the said additional charge. The prosecution-case, briefly stated, is that P.W.7 Amritlal Maganlal, was residing and serving as Process Men in Dhrangadhra Chemical Works at Dhrangadhra, at the relevant time. He resided with his family members behind the S.T. Bus Stand in Dhrangadhra. He had four sons and two daughters of whom P.W.1 Prosecutrix, Manjula, was aged 19 years and was studying in 9th standard on the day of incident, i.e. on February 15,1983. The maternal uncle of P.W.1 Manjula resided at Sihori in Disa Taluka of Banaskantha District. At the relevant time, P.W.1 Manjula used to go to Surendranagar as she was apprentice in Nita Industries, situated in Surendranagar. She used to move from Dhrangadhra to Surendranagar for the purpose and when she got down either at railway station or S.T. Bus stand, the accused Nos. 1 and 2 used to follow her. She did not know either accused No.1 or accused No.2. It is the prosecution case that the accused No.1 Arvind had demanded her address and P.W.1 Manjula had given her residential address of Dhrangadhra to him. P.W.1 Manjula is said to have visited Nita Industries for two/three days for learning the work. Nita Industries was the factory for manufacturing frames of spectacles. Thereafter accused Nos.1,2 and 3 had visited the P.W.1 at Dhrangadhra at about 5 to 6 p.m. on the next day after P.W.1 had given her address to accused No.1. All these accused persons had promised that accused No.3 Kanubhai was a big boss who would certainly manage for employment of P.W.1. Meanwhile, P.W.7 Amritlal, father of P.W.1, had come at the home and told the accused persons to go away from the place as he did not know them.It is also the prosecution-case that P.W.7 told P.W.1 that it was not necessary for her to take employment. However, on next day, when P.W.1 Manjula got down from the bus at about 10.00 a.m., the accused No.1 and accused No.2 were present at the bus stand. Accused No.1 told her to accompany him for the purpose of settling for her employment as a big bos (Mot Saheb) had come at the place of accused No.2. P.W.1 refused to accompany him. However, accused Nos. 1 and 2 had taken P.W.1 at the residence of accused No.2 by compelling the P.W.1 to take a pillion-seat on the scooter of accused No.2. The residence of accused No.2, Prabhubhai was located at Vishwakunj Society in Surendranagar. Accused No.2 had taken P.W.1 Manjula to the said house which was closed at that time. The accused No.2 opened the lock and then took her inside the house. She was made to lie down on a cot and thereafter accused No.2 came with a knife and threatened her. Accused No.2 is alleged to have committed rape on her thereafter. It is the prosecution-case that thereafter accused No.1, accused No.2, accused No.4 and accused No.5 had come there and had committed rape on P.W. prosecutrix Manjula, one after another. The accused No.3 thereafter again came and directed P.W.2 to bring P.W.1 Manjula at the factory for settling her employment.P.W.1 Manjula is said to have refused to accompany him, but P.W.2 took her on her scooter to the factory. It was at about 3.00 p.m. It was disclosed to the prosecutrix, P.W.1 Manjula that there was no vacancy at that time in the factory and she would be called again.P.W.1 had inquired about the name of the factory, but accused No.3 did not reply to it.P.W.1 had then returned to her home at Dhrangadhra at about 6.00 p.m. on that day. She changed her clothes and retired to bed. She did not disclose anything about the rape to her parents. Thereafter, after about 20 to 24 days, P.W.1 had gone to her school to inquire whether her name was struck off or continued in the attendance roll of the school. At that time, the accused Nos .1 and 2 had intercepted her saying that it was mistake that the illicit things were committed by them on her. Both the accused promised her for her employment again and invited her to come to Surendranagar. P.W.1 refused to go to Surendranagar. Thereupon the accused No.2 threatened her that if she did not come to Surendragar, they would disclose the fact of rape to her parents and would kill her. As she was threatened, P.W.1 told them that she would come to Surendranagar next day. After reaching home she did not disclose about the fact of inviting her to Surendranagar by accused Nos.1 and 2 or their threatening, to her parents. Next day, P.W.1 told her mother that she wanted to go to Surendranagar for appearing in an interview. She had to go to the place of her maternal uncle at Sihori. She told her mother also that on completion of the interview, she would directly come to Sihori from Surendranagar. In beginning her mother did not permit her to go to Surendranagar, but thenafter when she started for Surendranagar, her mother had given her Rs.100/- for expenses. As she was threatened by accused Nos. 1 and 2, P.W.1 had told lie to her mother and had started for Surendranagar. She had started at about 10 to 11 a.m. for Surendranagar. When she reached Surendranagar Bus Stand, accused No.1 Arvind was standing there. He told her that the big boss of Surendranagar had gone to Viramgam and further told her that she would have to come to Viramgam.Accused No.1 thereafter had compelled her to come to Viramgam by S.T.Bus. When they boarded at Viramgam, accused No.1 told her that he would inquire about the boss and after some time accused No.1 had returned and told the P.W.1 that the boss was not available at Viramgam and therefore they should return home. Thereafter, they had boarded one bus which according to accused No.1 was going to Dhrangadhra. However, accused No.1 and P.W.1 had reached Nadiad by that bus. P.W.1 had told accused No.1 that why she was brought to Nadiad and insisted to go to Dhrangadhra, accused No.1 had then taken her to railway station. They boarded the train for going to Dhrangadhra; instead, they reached Bombay at about 6.00 a.m. on the next day. P.W.1 inquired from accused No.1 as to why she was brought to Bombay to which accused No.1 had replied that they had boarded a wrong train and had come to Bombay. No other train was available to return to Dhrangadhra and therefore accused No.1 had taken her for stroll and thereafter took her to a room of some unknown persons. She was taken at about 6.00 p.m. in that room by the accused No.1. Prior to that accused Nol had taken her to the places of his relatives. It is the prosecution-case that the accused No.1 had then kept P.W.1 Prosecutrix Manjula with him for about two to three days. On one evening at about 6.00 p.m., she was taken to a room which was situated on first floor. Accused No.1 went away on some execuse, leaving her in the company of P.W.4,Asgarali, and P.W.5, Mahmad Aslam. P.W.4 had committed rape on P.W.1 and thereafter P.W.5 had also committed rape on her. P.W.1 however managed to escape from the place and reached Bombay Central Railway Station at about 8.00 p.m. and got the train for Ahmedabad. She reached Ahmedabad Railway Station next day and from there she reached at the place of her maternal uncle at Sihori. She did not tell anything of the Bombay-incident to his maternal uncle, Babulal, nor to her mother. Next day, after P.W.1 reached Sihori, her father P.W.7 Amritlal had come there and brought her to Surendranagar. During journey from Sihori to Surendranagar, she told her father as to what had happened with her. She was taken to Surendranagar Police Station and a complaint was lodged with regard to aforesaid incident on 16.3.1983. The said complaint is at Exh.60. On the aforesaid facts, offences under sections 120B, 366 and 376 of the Indian Penal Code was registered against the accused. It may be mentioned at this stage that the accused No.1 had lodged a complaint on 11.3.1983 against P.W.4 and P.W.5 with V.P. Police Station at Bombay for the offence under section 365 of Indian Penal Code alleging that the P.W.4 and P.W.5 had kidnapped or abducted P.W.1 Manjula and had wrongfully confined her.Accused No.1 alleged in his complaint at Exh.88 that on 8.3.1983 he had come to Bombay along with his daughter by name Manjula, aged 20 years, and halted at his relative Jaykantbhai's place at Kandivali, Bombay, for search of bridegroom for his daughter.On 8.3.1983, he had come to Grant Road along with his daughter to purchase Nuri Suit for his daughter at Shalimar Stores.He further alleged in his complaint on 10.3.1983 at about 3.00 p.m. when he reached Bombay Central Railway Station for going back and purchased two tickets for the destination, there were only seven rupees left with him after spending for tickets. The train had arrived on the platform and he found that the tickets were lost. As he had no money except Rs.7/-, he came back to Shalimar Stores along with his daughter Manjulal with a view to return the Nuri Suit that he had purchased and to get money back for journey by returning Nuri Suit. It was about 5.00 p.m. when he reached the shop. He narrated the incident to a person sitting at counter for taking back the Nuri Suit and refunding the amount. He was directed to wait till his elder brother returned to his shop. The accused No.1 waited till 6.00 p.m. Thereafter he was directed to the residence of the elder brother of that person which was nearby the said shop. The complaint Exh.88 further proceeds to allege that accordingly the accused No.1 with his daughter had come to room No.17 on the first floor of Delhi Darbar Hotel building No.203 where the room of the said person was found locked from outside. That person thereafter having applied the key opened the room and waited there for his elder brother for about 15 minutes. That person asked the accused No.1 to accompany him in search of his elder brother. His daughter Manjula was made to sit there in the room where a co-worker of the shop was present.He went with the accused of that complaint, i.e. p.w.4 and waited for his elder brother till 9.00 p.m. or so when the shop was closed. Thereafter he came to the place where his daughter was made to sit. But to his surprise he saw the room locked from outside and suspected foulplay. He also gave particulars of persons of P.W.4 and P.W.5. On basis of the said complaint, P.W.4 and P.W.5 were arrested and remanded to police-custody and on further inquiry from Surendranagar Police Station, the accused No.1 was named and in the course of the inquiry, P.W.1 Manjula lodged the complaint at Exh.60 against the accused Nos.1 to 5 herein. The learned Judge recorded the evidence of as many as 17 prosecution-witnesses and on appreciation thereof and having considered the other material on record, concluded in para 58 of his judgment that the following facts were duly proved:- (1) On or about 5.3.1983, the accused Nos.1 and 2 did not compel the P.W.1,Prosecutrix-Manjula, to leave her house at Dhrangadhra in Surendranagar District by giving promise of employment,but they had induced her to leave the house of her parents. (2) On or about 5.3.1983 accused No.1 Arvind had taken away P.W.1 Manjula to Bombay with intent that she may be induced to illicit intercourse or that there was possibility to seduce her; however, it was not established that the accused No.1 had taken P.W.1 to Bombay with intent secretly or wrongfully to compell her to prostitution or to exploit her sexually for commercial purposes. (3) Accused No.1 Arvind had handed over P.W.1 Manjula toP.W.4 Asgarali and P.W. 5 Mahmad Aslam for consideration of Rs.300/- and both of them had illicit intercourse with P.W.1 Manjula. However, accused No.1 had not so handed her over toP.W.4 and P.W.5 for the purpose of prostitution, but he did so as he had no alternative as he was short of money. (4) On or about 5.3.1983 accused No.1 had kidnapped or abducted P.W.1 Manjula and had taken her to Bombay with intent to force her to illicit intercourse or knowing it that it was possible to seduce her and thereby the accused No.1 had committed offence under section 366 of the Indian Penal Code. (5) In this connection, accused No.2 Prabhu had also committed offence of abetting the offence punishable under section 366 of the Indian Penal Code and has thereby committed offence punishable under section 366 read with section 114 of the Indian Penal Code. (6) It is not proved that the accused No.1 had committed offence under section 5(1)(b),(c) and (d) of Immoral Traffic (Prevention) Act. The accused Nos. 1 and 2 have preferred Criminal Appeals No.s21 and 51 of 1984 against their respective convictions for the offences under section 366 and section 366 read with section 114 of the Indian Penal Code, respectively. The State has preferred Criminal Appeal No.263/84, so far as the acquittal of the accused persons for the remaining offences is concerned. We have heard the learned Advocates appearing for the respective parties at length. We have been taken through the relevant evidence and other materials on record and we have considered them carefully. So far as the acquittal-appeal No.263 of 1984 with regard to the offence under section 376 of the Indian Penal Code qua all the accused persons is concerned, we are of the view that the alleged incident of rape on 15.2.1983 by all the accused persons on P.W.1 Manjula is not established beyond all reasonable doubt and the reasons given and the findings recorded by the learned Judge in this behalf cannot be said to be perverse by any stretch of reasoning. We have carefully scanned the evidence of P.W.1 Manjula, the prosecutrix, at Exh.13, and the learned Addl. Public Prosecutor has not been able to impress that the view taken by the learned Judge was unreasonable or perverse in any way. As regards the conviction of the accused No.2 for the offence under section 366 read with section 114 of the Indian Penal Code, the question to be considered is whether in the facts and circumstances of the case, the accused No.2 can be held to be guilty for the offence of abetment of kidnapping or abducting or inducing P.W.1 the prosecutrix to compel her to illicit intercourse. It is true that it is in the evidence of P.W.1 Manjula at Exh.13 that after the alleged incident of rape at Vishwakunj Society in Surendranagar by all the accused persons, some 20 to 24 days had passed and when she was returning from school, accused No.2 accompanied by accused No.1 had intercepted her and had induced her to come to Surendranagar by giving her a promise of employment. She refused to come to Surendranagar at initial stage and thereupon she was threatened that the story of rape on 15.2.1983 would be disclosed to her parents. However, according to the evidence of P.W.1, when she reached Surendranagar, accused No.2 was not present at the bus stand. Accused No.1 alone was present there. Therefore, having regard to the totality of the evidence of P.W.1, it cannot be said that the accused No.2 had aided or abetted the kidnapping of P.W.1.Apart he being absent at the time when she boarded the bus at Surendranagar Bus Stand, nothing is attributed to accused No.2 in regard to abetment or aiding of the offence of kidnapping.P.W.1 Manjula, the prosecutrix, has been cross-examined at length in question and answer form. In this connection, question No.218 in cross-examination is pertinent. It is as under:- "Question: You had not started for Surendranagar at the instance of accused Arvund and accused Prabhu; Had you? Answer: No. I had not started for Surendranagar at their instance." On examination of the evidence of P.W.1, it appears that the learned Judge has lost sight of this admission of P.W.1. If P.W.1 had not left for Surendranagar at the instance of Prabhu, the accused No.2, it is not understood as to how he can be held to be responsible for abetment or aiding the offence of kidnapping under section 366 which is said to have been committed by accused No.1, Arvind. Sufficient time has elapsed since accused No.2 had approached P.W.1 at Dhrangadhra or threatened her and that it cannot be concluded from the evidence on record that the accused No.2 was the person at whose instance P.W.1 Manjula left for Surendranagar and from there to Viramgam and then to Bombay. It appears that the two incidents, one of 18.3.1983 said to have occurred at Vishwakunj Society in Surendranagar and the other of leaving for Surendranagar, Viramgam, Nadiad and Bombay, are confused. However, there is no evidence which would establish the guilt of accused No.2 in regard to abetment of the offence. In this view of the matter, the conviction of accused No.2 for the ofence punishable under section 366 read with section 114 of the Indian Penal Code cannot be sustained.Criminal Appeal No.51/84 by accused No.2 deserves to be allowed, setting aside his conviction and sentence for the offence punishable under section 366 read with sec.114 of the Indian Penal Code. So far as accused No.1 is concerned, he has been held guilty for the offence punishable under section 366 of the Indian Penal Code and accordingly sentenced as aforesaid. Mr.Manoj Popat, learned Advocate appearing for the accused No.1 has not been able to successfully assail the reasonings and findings recorded by the learned Judge in this behalf holding the accused No.1 guilty for the said offence under section 366 of the Indian Penal Code. In our opinion, the evidence in this behalf is clinching and thumping, attributing intention to the accused No.1 of taking P.W.1 Manjula to Bombay for the purpose of illicit intercourse for the following reasons:- It is clear from the evidence on record, particularly of P.W.1 Manjula that by false promise of service or employment, accused No.1 had taken P.W.1 first to Viramgam, then to Nadiad and finally to Bombay. The evidence of P.W.1 is in consonance with her complaint at Exh.60. The accused No.1 has denied the circumstances that appeared against him in the evidence and has further submitted his explanation in writing at Exh.78. Accused No.1 and the appelant of Criminal Appeal No.21/84 has, inter alia, contended therein that P.W.1 Manjula had met him near Employment Exchange in Surendranagar and thus the acquaintance had resulted into friendship. According to accused No.1, as the parents of P.W.1 wanted to marry her to an old person in a village and P.W.1 being against it, she wanted to marry accused No.1.The parents of P.W.1 being poor and unable to provide dowry wanted P.W. 1 to get married with an old person in a village and as such she wanted to stay with accused No.1 by friendship agreement as accused No.1 was married and had children. Meanwhile, he had to go to Bombay as his father was suffering from Cancer. When he was at Bombay, all of a sudden, P.W.1 Manjula had met him at Bombay Central Station and told him that she had come from Dhrangadhra and that she had no other relatives in Bombay and she wanted to go with accused No.1. Accused No.1 had, therefore, taken her to his relatives at Kandiwali.P.W.1 had thus stayed for one night and two days with accused No.1 at Kandiwali. He had also taken her to P.W.2 Kokilaben Exh.15 where she had told P.W.2 Kokilaben that P.W.1 wanted to have friendship agreement with accused No.1. P.W.2 Kokila had admonished her saying that this was not proper as accused No.1 was aged and was having children. Thereafter accused No.1 had taken P.W.1 to purchase Nuri Suit in Shalimar Stores at Grant Road in Bombay. Next day she had gone to change the Nuri Suit that was purchased earlier and had talked with one Mahmad