CR.A/2055/2004 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2055 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 ? ========================================================= PARMAR(CHAMAR)JAGDISHBHAI BHIKUBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JV BHAIRAVIA for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/05/2008 ORAL JUDGMENT 1. Appellant is original accused in Sessions Case No.25 of 2003. He was charged for offences CR.A/2055/2004 2/14 JUDGMENT punishable under Sections 363, 366 and 376 of IPC. By impugned judgment and order dated 15.9.2004 passed by learned Additional Sessions Judge, Mehsana, he was convicted for offences punishable under Sections 366 and 376 of IPC. He was sentenced to R.I. for 3 years and 7 years respectively in addition to fine being imposed on him. 2. As per charge Exh.13, it was alleged against the accused that at about 10 O'Clock in the morning on 18.8.2002, he kidnapped minor daughter 'N' of the complainant, Babulal Vithaldas with an intention of having forcible intercourse with her. He took the victim girl to different places and had forcible intercourse. It was thus alleged that he had committed offences punishable under Sections 363, 366 and 376 of IPC. 3. Complainant, Babulal Vithaldas, PW-1, father of the victim girl was examined at Exh.17. He stated that his daughter 'N' had studied upto 8th Standard and her date of birth was 23.11.1984. On 18.8.2002, at his house, there was lunch arranged for children CR.A/2055/2004 3/14 JUDGMENT in the neighborhood on account of religious festival of Dashama. His daughter 'N' had gone to call people for lunch. Since, she did not return till 12 O'Clock he had inquired with his friends and his relatives. She was, however, not found. On 19.8.2002, therefore, Janavajog entry was made with Unjha Police Station. After recording the entry, he had spoken to her son- in-law Bharatbhai on telephone who told him that on 18.8.2002, he had seen 'N' and the accused together after which the witness had lodged police complaint which was produced at Exh.19. Some three months thereafter she had come to Unjha Police Station from where she was taken to the Hospital. 3.1 In the cross-examination, he stated that before the Police Station on 18th, he had not disclosed the name of the accused. He had not produced birth certificate of 'N' before the police but had produced school leaving certificate. He admitted that after 'N' returned some three months later, she had refused to go to his house and was kept at Bhagini Samaj at Patan. CR.A/2055/2004 4/14 JUDGMENT 4. Bharatbhai, PW-2, Exh.20, the son-in-law of the complainant stated that on 18th when he was going for work in the afternoon, he had seen 'N' and the accused going away in a jeep. In the evening, he had spoken to his father-in-law on telephone about this. 4.1 In the cross-examination, he admitted that on the high-way, where he had seen 'N' and the accused, there were large number of people present. In the jeep in which they travelled, there were other passengers also. He specifically stated that he had spoken to his father-in-law on 18th about his having seen 'N' and the accused together. 5. Mother of the victim girl, PW-3, Pratimaben, was examined at Exh.21. She stated that after informing the police about missing girl on 19th, her son-in-law had spoken to them on telephone. 6. Mukeshkumar Babulal, PW-4, Exh.22 is the brother of victim girl 'N'. He also described the incident in some what similar fashion. CR.A/2055/2004 5/14 JUDGMENT 6.1 In the cross-examination, he also admitted that after returning to Unjha Police Station, 'N' refused to come home and was kept at Bhagini Samaj at Patan. 7. Most important witness 'N' herself, PW-5 was examined at Exh.23. Her deposition is as important as it is intriguing. In the chief, she stated that on 18.8.2002, she had gone to call children for lunch at which time her uncle, Jalaram Mafatlal, told her to get married to the accused. She refused, as she was under age. Her uncle had threatened her that he would kill her brother. Her aunt and sister-in-law, Saroj, were also present at that time. They also pressurized her to get married to the accused and threatened that they would eliminate her parents. Despite this, she did not relent, upon which her sister-in-law, Saroj tied a thread around her neck. After which she was not aware about what was happening. She had come under the spell of her uncle and aunt. Thereafter, the accused asked her to follow him which she did. She was taken to Unjha Bus-Stop from there to Kadi to CR.A/2055/2004 6/14 JUDGMENT visit a temple. From there, she was taken to different places, Ahmedabad, Rajkot, Gandhinagar, Gadhidham, etc. At all these places, she was threatened at knife point. She was also taken to Pune, Nasik. At all times, he used to threaten her. She was also taken to Saibaba temple at Shirdi. They stayed at a place where other pilgrims were also staying. In the middle of the night, the accused had woken her up and after showing a knife had forcible intercourse with her. He had raped her repeatedly. Thereafter, from Shirdi they had gone to Junagadh and from there to Gandhinagar. Thereafter to Gandhidham. At Gadhidham they stayed in a hut for about 1 ½ months. From there, she was taken to Junagadh. At Junagadh, she was made to sign some blank papers after which they had come back to Unjha Police Station. There since the accused had threatened her with dire consequences, she could not give correct statement to the Police. Again on account of threats from the accused, she did not come to her parent's house and had to be taken to Bhagini Samaj at Patan where she stayed for about 15 days. CR.A/2055/2004 7/14 JUDGMENT 7.1 In the cross-examination, she admitted that Unjha bus-stand is about 1 k.m. away from her house. They had reached the bus-stand walking. In the bus there were several other passengers. At the temple, also there were many people. At Ahmedabad, Mumbai, Pune, Nasik, etc. they were staying at crowded places. At bus-stops policemen were also sometime present. At Shirdi, they stayed in an open place. She had never raised any cry for help. At Junagadh they had got married at Hatkeshwar Temple and such marriage was also registered. 7.2 She also admitted that the entire story of pressure from her uncle, aunt and sister-in-law pressurizing her to get married to the accused and the statement of a thread being tied around the her neck making her lose her senses was never stated to the police by her. She also admitted that in her statement before the police she had not stated that before committing rape, the accused had threatened to kill her and showed her a knife. She had also not stated that she was made to sign the papers regarding CR.A/2055/2004 8/14 JUDGMENT her marriage under threat and coercion. In her police statement, she had also not stated that on account of threats by the accused, she had not gone to her parents house, but she was taken by the police to Bhagini Samaj, Patan. 8. Dr.Ramesh Shah, PW-6, Exh.24 had carried out physical examination of the accused as well as the victim girl. He had found no marks of injuries on them. He had collected the samples such as saliva, Vaginal Swab and sent for analysis. 9. PW-9, Pravinpuri Goswami, Exh.35 was the Investigating Officer, who had carried out investigation. He described the manner in which the investigation was carried out. He admitted that he had not collected the certificate of registration of the birth of 'N'. 10. On the above basis the prosecution sought to prove the charges. 11. In absence of proof of minority of 'N', the CR.A/2055/2004 9/14 JUDGMENT learned Judge refused to convict the accused under Section 363 of IPC. There is no evidence on record to conclusively hold that 'N' was less than 18 years of age on the date of the incident. Except for the bare words of the complainant, father of 'N' there was no corroboration about the date of birth of 'N'. School Leaving Certificate was not proved and therefore not accepted. The Investigating Officer admitted that registration of the birth of 'N' was never collected. There is no medical evidence assigning the age of the girl. 12. The question, however, is whether the accused forcibly took 'N' with the intention of forcibly having sexual intercourse with her and thereby committed offences punishable under Sections 366 and 376 of IPC. 13. In this regard, at the outset, it may be noted that other than 'N' herself PW-5, Exh.23, no witness has given any first hand account of what happened after 'N' went missing at about 10 O'Clock on 18.8.2002. Even otherwise, whatever other witness CR.A/2055/2004 10/14 JUDGMENT could state before the Court, the situation under which 'N' was missing, they do not come across truthful witnesses. Though there is little doubt that at about 10 O'Clock on 18.8.2002 she had gone out of her house to call other children for lunch and thereafter, not returned, however, on 19th August, 2002 when the father of 'N' PW-8, Bachubhai, Exh.17 informed the Police about missing girl, he stated nothing about the involvement of the accused. As per his statement as well as one of PW-3, Premilaben, their son-in-law Bharatbhai PW-2, spoke to them over telephone about having seen 'N' and accused together in the afternoon of 19.8.2002. However, PW-2, Bharatbhai Exh.20 has categorically and specifically asserted that he had spoken to his father-in-law about this in the evening of 18th August, 2002 itself. This is in direct conflict with the statements of complainant PW-1 and his wife Pramilaben PW-3. For apparent reasons there is a clear improvement since the complainant lodged the Janavajog entry with police on 19th August, 2002 in which admittedly he had made no mention about involvement of the accused in his daughter's missing. Thus, story of PW-2, CR.A/2055/2004 11/14 JUDGMENT Bharatbhai having seen 'N' and the accused together in the afternoon of 18.8.2002, is apparently a got up story. This, however, does not lead us any where with respect to allegations of abduction and rape of 'N' by the accused. 14. To get to the truth, it would be necessary to assess the evidence of 'N' herself. In this regard, for reasons, which will be noted shortly, I find that testimony of 'N' is completely unreliable, is full of improvements and contradictions and no conviction on the basis of such a testimony can be recorded. 15. Firstly, as noted, she stated that on the date of the incident, she was pressurized by her uncle, aunt and sister-in-law to get married to the accused. No investigation in this direction has been carried out. If there was slightest truth about this allegation, investigation would have revealed the same. In-fact, there is no evidence to substantiate any of these allegations. These persons were not joined as co-accused. This part of the statement of CR.A/2055/2004 12/14 JUDGMENT the girl is not believed by the investigating agency itself. She further stated that her aunt, and sister in law tied a thread around her neck due to which she lost senses and was completely under a spell. No investigation in this direction was also carried out. No attempt was made to recover such a thread, no statements are recorded in this regard. 16. Secondly, as per the evidence of this girl while still under the influence of the spell, she was asked to follow the accused which she did. She was taken by bus to various places. She was taken to different villages. She was taken to Ahmedabad, Gandhidham, Junagadh, Gandhinagar, Mumbai, Pune. At all these places they went by public transport. They stayed in Dharamshala and huts at all these places. Still she did not raise any alarm, never cried for help, never tried to approach any one. 17.1 Thirdly, she admitted that there were people around the places where she was going along with accused. On the bus-stop, there were also police persons present sometime but at no point of time, she CR.A/2055/2004 13/14 JUDGMENT ever asked for help. 17.2 Fourthly, at Junagadh they also got married. Of-course, the girl once again in her characteristic style stated that this was also under threat and coercion. Interestingly, the marriage has also been registered. 17.3 Fifthly, after returning from Junagadh to Unjha Police Station, she refused to go to her parents' house and preferred to stay at Nari Seva Gruh. This was also blamed by her on threats given by the accused. 17.4 Sixthly, all the statements regarding She bring threatened by the accused, she admitted, she had not stated before the police. 18. Thus, there are multiple contradictions and large scale improvements in the version given by this witness. She simply does not come across as a truthful witness. There is no doubt in any manner that she was a willing partner in leaving her fathers house and joining the accused and the two together CR.A/2055/2004 14/14 JUDGMENT traveling from place to place. In fact they tried to get married. In the process they had intercourse. The same was with full consent of the girl herself. Her story is fantastic, totally unbelievable and full of contradictions. 18. In the result, I find that the learned Judge committed a serious error in convicting the appellant for offences punishable under Sections 366 and 376 of IPC. Conviction and sentence is, therefore, set aside. He shall be released forthwith if not required in any other criminal case. Fine, if any paid, be refunded. Appeal is disposed of accordingly. (AKIL KURESHI, J.) ashish//