CR.A/991/2003 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 991 of 2003 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 ? ========================================================= PRABHUBHAI MANJIBHAI MATRANIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS BR RAJPUT for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 12/05/2008 ORAL JUDGMENT 1. The appellant is the original accused. By impugned judgement and order dated 17.6.2003 passed by learned Additional Sessions Judge, CR.A/991/2003 2/8 JUDGMENT Bhavnagar in Sessions Case No.208/2001, he was convicted for offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. He was sentenced to rigorous imprisonment for three years, five years and seven years respectively for the said offence. 2. As per charge exh.5, it was alleged against the appellant that on 30.5.2001, he had enticed minor daughter of the complainant aged about 14 years and kidnapped her with an intention to commit illicit intercourse and thereby committed offence punishable under Section 366 of the Indian Penal Code. It was further alleged that he also had forcible intercourse with her and thereby committed offence punishable under Section 376 of the Indian Penal Code. 3. The complainant Jayaben Kalubhai-PW2 was examined at exh.22. In her deposition she stated that her daughter 'S' was aged 15 years on the date of deposition. 12 months before the deposition, incident had taken place. She had gone for labour work. Her daughter 'S' was at home alone. When she returned at 12 O' Clock in the afternoon for lunch, 'S' was not at home. She inquired about her with relatives but 'S' could not be found for two to three days. Her son Mukesh had brought back 'S' after four days. She stated that 'S' was born in Government hospital at Barvala. She had produced the birth CR.A/991/2003 3/8 JUDGMENT certificate before the police. She later on came to know that her daughter had run away with accused Prabhubhai. 4. Victim girl 'S' PW3 was examined at exh.24. She stated that on the date of incident she was alone at home. At that time accused had come to her house. They had gone to village Than by bus where they had spent a night at the house of one Varshaben, niece of the accused. Accused had raped her there at night twice. Next day they had gone to village Bajivada at the house of aunt of the accused where her brother had come to fetch her. 4.1 In the cross examination, she admitted that in her police statement she did state that she had some feelings for the accused. Though she tried to state that she was rendered unconscious by the accused, she admitted that this was not revealed by her to the police. 5. Brother of the victim girl Ashokbhai Kalubhai- PW4 was examined at exh. 25. He stated that along with one Kokilaben, he could trace his sister and accused at Chotila. Accused had run away when he saw the witness. 6. Jagdishchandra Girjasankar Jani-PW6 was examined at exh.27. He was Talati-cum-mantri of Barvala gram panchayat. Through him birth certificate of CR.A/991/2003 4/8 JUDGMENT the victim girl was exhibited at exh.28 in which her date of birth is recorded as 8.10.1986. 7. Father of the victim girl Kalubhai Maganbhai- PW10 was examined at exh.45. He stated that accused was married but did not know what happened to his wife. This statement was not challenged by the defence in the cross examination. 8. Dr. Jayantilal Shivabhai Dulera-PW1(exh.4) was the medical officer at the Primary Health Centre, Botad who had carried out the physical examination of the victim girl as well as the accused. In his deposition, he stated that the victim girl had given history of having spent four days with the accused with her consent. Upon further being questioned she however, could not give full name of Prabhubhai the accused. She also stated that he had sexual intercourse with her on three to four occasions. Doctor did not find any signs of injuries on the body of the girl or on her private parts. He found that hymen was ruptured. To assess the age of the victim girl, one lady Dr. Bhavnaben had carried out necessary tests of the victim girl and Certificate was issued which was produced at exh.15 in which it was opined that the girl was aged between 14 to 16 years. He had also examined the accused on 14.7.2001. Age of the accused was stated to be above 30 years. He had CR.A/991/2003 5/8 JUDGMENT given history of going to village Than and Chotila with the victim girl with her consent. He had further stated that he had intercourse with the girl with her consent about three to four times. Doctor found no marks of injury on the accused also. 9. In short, on the basis of above evidence, prosecution sought to prove the charges. 10.From the evidence on record and in particular, that of the victim girl, it is clear that she had accompanied the accused on her free will in the afternoon of the date of incident. When she was alone at her home, the accused had gone to her house. The two had together gone to village Than. Next day they had gone to Bajivada. They were travelling in public transport, staying together at the house of relatives of the accused. There is nothing to suggest that there was any force or coercion on part of the accused all this while. In fact, the victim girl had given history to the Doctor of having accompanied the accused voluntarily. Even otherwise, she had ample opportunities to protest or to resist. Apparently, she has done neither. From the history given by the victim girl as well as the accused to the Doctor, also it appears that they had sexual intercourse at- least three times during their stay together. There are no marks of injury on the body of the CR.A/991/2003 6/8 JUDGMENT girl or the accused. All these factors point in one direction namely that the victim girl had voluntarily gone away with the accused. 11.Question however, is was the consent relevant. To put it differently, was she legally competent to give such a consent 12.The prosecution has proved the age of the victim girl through the birth certificate exh.28 in which the date of birth is recorded as 8.10.1986. The incident took place on 30.5.2001. The victim girl was thus aged barely 14 years and about seven months when the incident happened. The date of birth recorded in the Government records also get support from the medical evidence. As noted, Dr. Jayantilal Shivabhai Dulera-PW1 had assessed the age of the girl between 14 to 16 years on the basis of different tests carried out. 13.Thus there is no doubt that the victim girl was very short of 15 years of age when the incident took place. In terms of provisions contained in Section 376 of the Indian Penal Code, her consent was thus immaterial. Offence of kidnapping minor under Section 363 of Indian Penal Code of a girl, age limit being 18, the victim girl was thus shown to have been well below the said limit. CR.A/991/2003 7/8 JUDGMENT 14.The fact that the appellant had thus committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code stands proved beyond doubt. It is not even seriously doubted that appellant and victim girl had sexual intercourse during their stay together. The history recorded by the Doctor that both the victim girl as well as the appellant individually informed him so is not even seriously challenged by the defence. Even otherwise the clothes and different samples collected by the prosecution also supports this accusation. 15.The only question therefore, calls for consideration is what should be the quantum of sentence. Learned advocate Ms. Rajput for the appellant vehemently submitted that though legally unable to technically give consent, the victim girl was sufficiently matured to be able to understand the repercussions of her action and had voluntarily stayed with the accused for few days during which time she had consented to the act of sexual intercourse. She therefore, submitted that learned Judge acted harshly in awarding sentence of seven years for offence punishable under Section 376 of the Indian Penal Code. In short, she submitted that this sentence is required to be reduced. 16.There are certain facts in the present case CR.A/991/2003 8/8 JUDGMENT which cannot be lost sight of. This is not one of those cases where a girl just out of romantic feelings with the boy also in teens having eloped, had intercourse with her partner. In the present case, the girl was well below 15 years when the incident took place. In contrast, the accused was aged about 30 years. He was also married. The accused therefore, cannot be equated with some other cases where the Court may take lenient view if the accused also was as young as or just little older than the victim girl. In the present case, the accused was of matured age. He knowing fully well consequence of his act not only enticed the minor girl well below 15 years of age, spent few nights with her at different places and also had sexual intercourse with her repeatedly. 17.Considering all these aspects of the matter, I do not find any special or adequate reasons existing to reduce the sentence below the minimum prescribed under Section 376 of the Indian Penal Code. 18.In the result, I find no merits in appeal. Appeal is dismissed. (Akil Kureshi,J.) (raghu)