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2004 DIGILAW 307 (GUJ)

LALSINGH BHIKHABHAI CHAUDHARY v. STATE OF GUJARAT

2004-04-22

C.K.BUCH

body2004
C. K. BUCH, J. ( 1 ) HEARD Mr. Gharaniya, learned counsel appearing for the appellant and Mr. I. M. Pandya, the learned Additional Public Prosecutor. ( 2 ) THIS appeal is preferred against the order of conviction dated 28th April, 2004, passed by the learned Additional Sessions Judge, Surat at Vyara in Sessions Case No. 204/1997. The appellant, who has been convicted, is the orig. accused no. 1 in the aforesaid case and the rest of the accused persons have been acquitted by the learned trial Judge by giving them benefit of doubt. ( 3 ) THE appellant-accused has been held guilty for the offence punishable under Section 376 of the Indian Penal Code and he has been ordered to undergo RI for seven years and a fine of Rs. 2000. 00 (Rupees Two Thousand); in default to undergo SI for three months. The order of conviction has been read over by the learned counsel appearing for the appellant and he has taken me through the oral as well as documentary evidence led by the prosecution. ( 4 ) THE victim girl-Usha has been examined by the prosecution vide exh. 9. The written complaint tendered by the victim Usha to the Police Sub-Inspector of Valod Police Station, Valod, Dist. Surat, is at exh. 10. It is the constant case of the complainant from the beginning that when the appellant-accused established physical relation with the victim Usha for the first time, at that time she was of 14 years. Initially, some mental stress was applied and thereafter, she was induced by the appellant-accused by promising that the appellant will marry her at the earliest. It is the say of the prosecution that initially the victim Usha was called to cook food at the residence of orig. accused nos. 2 and 3, where the appellant-accused was the guest and thereafter, she was requested to stay overnight. That very night, she was raped by the appellant-accused. It is further the case of the prosecution that thereafter the appellant-accused was frequently visiting the house of the orig. accused nos. 2 and 3; and the victim Usha was told to stay there. It is rightly submitted by the prosecution that as the appellant-accused is of upper caste, victim Usha might have succumbed to the inducement and other temptations offered by the appellant-accused. accused nos. 2 and 3; and the victim Usha was told to stay there. It is rightly submitted by the prosecution that as the appellant-accused is of upper caste, victim Usha might have succumbed to the inducement and other temptations offered by the appellant-accused. The consent, emerging from the evidence led by the prosecution, cannot help the appellant-accused, as there is sufficient cogent evidence available on record that on the day of incident and thereafter, on the day on which the victim Usha was examined by the Doctor, she was younger than 16 years. So the alleged consent cannot be helpful to the appellant-accused in the eye of law. The medical evidence led by the prosecution is in the form of certificate at exh. 20. ( 5 ) THE say of the complainant that she developed pregnancy because of repeated intercourse made by the appellant-accused, is corroborated by the certificate issued by the doctor on 3rd May, 1999. The certificate is tendered in evidence by the Investigating Officer but neither any formal objection was taken by the defence counsel nor there is any cross-examination of the witness, who has produced the said certificate in evidence. Pointing out the question asked by the learned Presiding Judge, while recording explanation of the appellant-accused under Section 313 of the Cr. P. C. , the appellant-accused has shown total ignorance as to the contents of exh. 20. In the next question at Sr. No. 16, the appellant-accused was asked that though the appellant-accused had developed relation with the victim Usha, ultimately he decided to marry any other girl and formal engagement ceremony was also done. This fact was pointed out by the prosecution and the same has been denied by the appellant-accused. The appellant-accused has not seriously disputed the date of birth of victim Usha. According to prosecution, the date of birth of victim Usha is 17th May, 1980 and when she was firstly raped in the year 1995, undisputedly she was more than the age of 14 years but less than 15 years. It seems that as she became pregnant, she was compelled to file a complaint especially when the appellant turned hostile to his promise to marry her. ( 6 ) THE learned trial Judge has rightly appreciated the evidence and there is no error committed either procedural or legal in convicting the appellant-accused. It seems that as she became pregnant, she was compelled to file a complaint especially when the appellant turned hostile to his promise to marry her. ( 6 ) THE learned trial Judge has rightly appreciated the evidence and there is no error committed either procedural or legal in convicting the appellant-accused. In such a case, it is obligatory to examine the doctor, who has examined the victim. Hence, this Court can call the doctor for examination or the matter can be sent back for formal examination of the doctor. But when there is no dispute as to the contents of the certificate produced before the learned trial Court, it is not necessary to examine the doctor. When the facts stated by the girl on oath are not disputed on merit and the date of birth of the victim Usha is also not under serious clouds, I do not see any legal requirement to call the doctor before this Court for the purpose of recording evidence of formal proof of the certificate issued by the doctor. The Investigating Officer has also stated on oath that during the course of investigation, he has obtained the certificate from the doctor/hospital, which was legitimately taken from the custody. Mr. I. M. Pandya, learned Additional Public Prosecutor, has pointed out that ultimately the girl delivered a child and the name of the boy is Rahul. ( 7 ) IT is not the say of the defence that the victim Usha has developed pregnancy because of her relation with other person, other than the appellant-accused. The Court is not convinced on the submission made by Mr. Gharaniya that looking to the date of last mensuration mentioned by the victim before the Court would cut the case of the prosecution. It seems that she had given an incorrect answer because as she was pregnant on that relevant date, she must have erred in assessing her physical condition, when responded by the doctor. ( 8 ) THE victim girl-Usha has deposed to this effect and certain questions are also asked by the learned Additional Sessions Judge, so it was not a matter of doubt either by the prosecution or defence as to the pregnancy developed by the girl on account of rape committed by the appellant-accused, within the meaning of provisions of the Indian Penal Code. ( 9 ) WHILE dealing with the Criminal Appeal whether this Court can pass any other orders pertaining to the facts coming to the notice of this Court is the question but when the Court is authorized to award compensation to the victim under Section 357 of the Criminal Procedure Code, then in that very spirit in the scheme, the Court can positively take care of the situation, which is cropped up because of offending act of the accused. So the Court is inclined to pass an order in exercise of powers vested with the Court under subsection (3) of Section 386 r/w. 357 of the Criminal Procedure Code and direct the learned District and Sessions Judge, Surat to inquire about the victim girl-Usha and her child Rahul, through the concerned Police Station and she may be asked and apprised about her legal rights as to get the maintenance of minor Rahul and other rights under different laws. If she is willing to exercise her rights, she may be provided all the legal assistance, guidance and help through the District Legal Services Committee and/or Taluka Legal Services Committee of Taluka Vyara, Dist. Surat. For this purpose, the appellant-accused is directed to deposit Rs. 5000. 00 within 30 days as compensation, which would enable the victim girl Usha and her minor child Rahul in taking action against the appellant and meeting with the incidental charges; failing which the same may be recovered as an amount of fine from any of the movable or immovable properties of the appellant-accused. This is required to be done because the victim girl is a rustic villager having no educational background, but everything rests with her anxiety to take the cause for the injustice done to her. In view of the above, the appeal is hereby dismissed. .