CR.A/471/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 471 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 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 ? ========================================= = STATE OF GUJARAT Versus MER JIVA MALDE AND OTHERS ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MR YOGESH S LAKHANI for the Opponent Nos. 1 and 2 MR PK SONI for Opponent(s) : 3, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 15/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/471/1986 2/5 JUDGMENT 1. Present Criminal Appeal has been filed by the State against the judgment and order dated 31.12.1985 passed by the learned Additional Sessions Judge, Porbandar, in Sessions Case No.39 of 1984. 2. The case of the prosecution, in brief, is that, on 7.9.1983, during period between 21.30 hours to 22.00 hours, accused No.1 in connivance and in conspiracy with accused Nos. 2 to 4 have kidnapped the prosecutrix out of the lawful guardianship of her parents without their consent and thereafter, accused No.1 is alleged to have committed the offence of rape. 3. Accused No.1 and the prosecutrix having married, have visited various cities and the places as has come out from the deposition of the prosecutrix herself, which are as follows: 3.1. They have started from Porbandar and have gone to Dhoraji, Ahmedabad, Bhavnagar, Khodiyar temple, again Bhavnagar, Rajkot, Matel, Hapa, Jamnagar, Mithapur, Dwarka, Aarambhada, Bhuj, Anjar and, thereafter have come back to Porbandar. At may places, they have stayed in guest house as husband and wife. They have so visited various places and remained in company with each other for more than 20-22 days. 4. As has come on evidence that at no place, the prosecutrix objected the company of accused No.1 and though she had number of opportunities to either shout or flee or to take help of the independent persons, voluntarily did not opt CR.A/471/1986 3/5 JUDGMENT to avail any of them. (page 79) 5. After they returned to Porbandar at the first opportunity, she had to disclose about th offence before the Medical Officer where he was taken with police Yadi, she had given the history to Dr. Kalpanaben Khanderia and has stated in the said history that 20 days before she had gone with somebody and she has married. It is specifically mentioned in the certificate that the prosecutrix herself gave the history of marriage. Not only that but no injuries on any part of her body were found. The Medical Officer in her deposition confirms such thing. The certificate issued by the Medical Officer is on record. 6. The learned Judge has also found that there is no concrete proof coming on record as regards the age of the prosecutrix and the learned Judge has descriptively narrated the evidence on record about her age and the leaving certificate produced on record. The prosecution has produced the evidence of the school leaving certificate issued by Rupariba Kanya Shala at Exh.14. But, it has come on record that the said certificate could be issued from the certificate of Chhaya Plot Primary School but the said certificate is not proved on record. No birth certificate or any record is produced on record to point out as to from where the date of birth is mentioned in the school leaving certificate. 7. It further appears that the entire record of Rupariba Kanyashala, Porbandar has been destroyed in the flood. If such hazy and unclear evidence about the age of the prosecutrix is read with her deposition, she has stated that she left her CR.A/471/1986 4/5 JUDGMENT studies when she was 10 years of age and thereafter she has worked with her mother at home for about 7 to 8 years and, thereafter, the incident in question has taken place. That means, at the time when the incident occurred, she must be of 17 to 18 years of age and, thus, as regards the age also, it could not be said that she was below 16 years of age. 8. It has also come on record that the prosecutrix and accused No.1 have married and marriage certificate is produced at Exh.25. Till date, no proceedings are filed either by the prosecutrix or by her parents to get the said marriage declared as void or annulled. The certificate of marriage is proved on record and the fact of marriage is confirmed by her in the history given by her before the Medical Officer. Thus, there is no evidence much less any sufficient evidence led by the prosecution to prove that any offence has committed by either of the accused, particularly accused No.1, and the order of acquittal passed by the learned Sessions Judge is, thus, proper and not liable to be interfered with. One of the accused, being accused No.4, has already expired pending the appeal. The incident alleged is of the year 1983. The order of acquittal is of the year 1985 and the prosecution has failed to make out an exceptional case before this Court so as to warrant the reversal of the order of acquittal passed by the Sessions Court on proper appreciation of evidence led before him. 9. Proof of age by school records is to be done in a particular manner. All those documents were not produced. 10. In oral evidence, the girl has admitted that she is a CR.A/471/1986 5/5 JUDGMENT school dropout. The time leg she gives shows her to be of more age than what her certificate shows. If the account given by her is taken into consideration, then the school certificate will stand believed. In aforesaid circumstances, we want to concur with the Trial Court that the girl was not a minor as claimed. 11. The sequence of events suggests that the boy and the girl had gone for marriage. No efforts have been made to annul the marriage. In a subsisting marriage cohabitation as allegedly happened appears more as a designed happening. 12. In the aforesaid circumstances, we would not consider interfering in the order of acquittal. No such perversity or illegality is seen which will face us to do that. Consequently, the appeal is dismissed. Bail bonds are ordered to be cancelled. While parting with the case, we will observe that the remarks made by the learned Trial Court could have been avoided. We will, therefore, order that they should be deemed to have not been made. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar