CR.A/947/2004 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 947 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 ? ========================================================= JITENDRA @ MUNNO MADHUKANT DAVE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR RAMNANDAN SINGH for Appellant(s) MR PD BHATE, APP for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 21/01/2008 ORAL JUDGMENT The appellant, original-accused, has challenged the judgment and order dated 21st May 2004 rendered by the learned Additional Sessions Judge, Junagadh in Sessions Case No.20 of 2003. CR.A/947/2004 2/6 JUDGMENT 2. The appellant was charged for offence punishable under section 363, 366 and 376 of the Indian Penal Code. The learned Judge convicted the appellant under section 376 of the Indian Penal Code and sentenced him to 7 years of rigorous imprisonment. Charge under section 363 and 366 was, however, not held to have been proved. 3. The prosecution examined the victim girl as PW-5 at Ex.51. She stated that at the relevant time she was studying in 10th standard. She further stated that the accused used to often stand on the road from where she used to go to her school and tell her to marry him. She had also after some persuasion agreed to marry him. They used to move around together. They decided to meet on 24th December 2002 in a shop near their house and they decided to elope on 26th December 2002. As per plan, she met the appellant at the appointed time and place. They went to Junagadh by bus. Thereafter to Rajkot and in the evening to Ahmedabad by bus. They stayed at appellant's cousin brother Bhadresh's house. They rented a house at Krishnanagar in Ahmedabad. They also purchased some house-hold items. She stated that on 29th December 2002, the appellant had intercourse with her against her wish since she felt that the same can be done only after marriage. In her cross-examination, however, she admitted that when she was produced before the CR.A/947/2004 3/6 JUDGMENT doctor, she had given history in which she had stated that she had intercourse with the appellant with her free consent. She admitted that every time, the appellant had intercourse with her consent. From Ahmedabad, they had gone to Abu-Ambaji by telling her parents that she has to go in a school tour. Though it was suggested that she was born in 1984, she denied the suggestion. 4. The prosecution proved the age of the victim girl by producing her birth certificate at Ex.65 as well as certificate issued by the school authorities at Ex.67 which was proved by examining the Clerk of the School, Panchalbhai, PW-9 at Ex.66. To prove the record of birth certificate, the prosecution had examined Talati-cum-mantri as PW-8 at Ex.64. 5. Dr.Hitesh Dholia, PW-1, Ex.17 had examined the girl when she was produced by the police. Before him the victim girl had stated that she had intercourse with the appellant out of her free choice and the same was noted in the medical record and signature of the girl was also obtained. The doctor noticed that the hymen of the girl was ruptured but there was no injury on the private part of the girl. 6. From the evidence on record noted above, it can be clearly seen that the victim girl had willingly left her parents house to join the appellant with an intention to get married to him. She had also been a willing partner in having CR.A/947/2004 4/6 JUDGMENT physical relation with the appellant. Though in her deposition she tried to suggest that the appellant had intercourse with her despite her refusal, in the cross-examination, she clearly admitted that every time that the appellant had intercourse with her, she had consented to it. From the outset, it can even be noted that all throughout, the victim girl was a willing partner. She and the appellant had romantic relations. They moved around as lovers. She had in fact, faked an school tour and visited Abu-Ambaji with the appellant. She had stayed with the relatives of the appellant and thereafter in a rented house. Her suggestion that the appellant had intercourse with her against her wish therefore has to be viewed in the background of the attendant circumstances as well as her admission in the cross-examination that her act of intercourse with the appellant was with her consent. Her admission of this fact in the history being given to the doctor is also equally important. 7. The question, however, is whether the victim girl was competent to give any such consent. As per the school records, she was less than 15 years of age. The school date of birth matches with that of the birth register. Birth certificate was produced on record and proved through the deposition of Talati-cum-mantri. Both these documents conclusively point out that the date of birth of the girl was 17.4.88. In that view of the matter, I do not find that the Trial Court committed any error in coming to CR.A/947/2004 5/6 JUDGMENT the conclusion that the victim girl was below 16 years of age when the incident took place. Medical evidence regarding the assessment of the age of the girl cannot be of any help. In any case, assessment of age of the girl as per the doctor was not conclusive and cannot override the other documentary proof which is not possible to doubt. It is not the case of the appellant that the birth records earlier did not contain the name of the victim girl and that the same was entered at a belated stage. Thus it can be clearly seen that the victim girl was well below the age of 16 years. In that view of the matter, any act of intercourse with her even with consent would amount to act of rape punishable under section 376 of the Indian Penal Code. 8. Question however is with respect to the sentence to be imposed on the appellant. Significantly, the appellant was himself only 20 years of age at the time of the incident. He has already undergone actual sentence of more than 5 years, with remission, well over 5 years. Considering the special facts of this case, therefore, I find that the sentence of less than the minimum prescribed under section 376 of the Indian Penal Code is required to be awarded. The view that I am taking is supported by the decision of the Apex Court in the case of State of Chhatisgarh v. Lekhram, AIR 2006 SC 1746 and a decision of this Court in the case of Senma Dashrathbhai Nenabhai v. State of Gujarat, decided on 1.3.2004 in Criminal CR.A/947/2004 6/6 JUDGMENT Appeal No.1410 of 2003. 9. Under the circumstances, though conviction of the appellant is upheld, his sentence is reduced to one already undergone. The appeal succeeds in part. The appellant to be released forthwith if not required in any other criminal case. (Akil Kureshi, J.) (vjn)