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2010 DIGILAW 235 (GUJ)

Sunilbhai Dahyabhai Kharva v. State of Gujarat

2010-05-05

A.L.DAVE, BANKIM N.MEHTA

body2010
Judgment A.L. Dave, J.—The appellant is convicted by Sessions Court, Vadodara for offence punishable under Sections 377 and 363 of the Indian Penal Code (for short “IPC”) and also under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short “Atrocity Act”) and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- in default to undergo further RI for 3 months for the offence punishable under Section 377 of the IPC. For offence punishable under Section 363 of the IPC, he is ordered to undergo further RI for 7 years and to pay a fine of Rs. 2000/- in default to undergo RI for 3 months. For the offence punishable under Section 3(2)(5) of the Atrocity Act, he is ordered to undergo RI for 6 months and to pay a fine of Rs. 1000/- in default to undergo further SI for one month. All the sentences were ordered to run concurrently with benefit of set off. 2. The alleged incident took place on 19.4.2004 between 6:30 p.m. and 10:30 p.m., when the appellant allegedly kidnapped minor Manoj aged about 6 years on his Mopad No. GJ 6 H 5607 by alluring him for a ride on the said two wheeler. He took the victim to a field near Highway Bridge, near village Kapurai and thereafter, established physical relation against nature with Manoj and then dropped the victim near his house. On being asked by his father, minor Manoj disclosed everything to his father Sureshbhai Tadvi, who therefore, lodged the FIR before the Vadi Police Station, Vadodara on 21st April, 2004. On basis of which, offence was registered and investigated. After investigation, the police having found sufficient material against the appellant, filed charge sheet in the Court of JMFC, Vadodara, who in turn committed the case to the Court of Sessions and Sessions Case No. 19 of 2004 came to be registered. Charge was framed against the accused at Exhibit 9, to which the accused pleaded not guilty and claimed to be tried. Considering the evidence led by the prosecution, the trial Court found that the appellant is guilty of the offence punishable under Sections 373 and 366 of the IPC and also under Section 3(2)(5) of the Atrocity Act and punished him as stated hereinabove and hence, this appeal. 3. Learned Advocate Mr. Considering the evidence led by the prosecution, the trial Court found that the appellant is guilty of the offence punishable under Sections 373 and 366 of the IPC and also under Section 3(2)(5) of the Atrocity Act and punished him as stated hereinabove and hence, this appeal. 3. Learned Advocate Mr. Majmudar for the appellant submitted that the evidence led by the prosecution is not sufficient to record conviction. Possibility of the indication found by the Doctor being case of constipation suffered by the victim cannot be ruled out. What would be left behind, therefore, would be mere evidence of minor Manoj, not supported or corroborated by any other evidence and therefore, the trial Court could not have recorded conviction for the offence punishable under Section 377 of the IPC. So far as other pieces of evidence are concerned, the evidence is only in the form of deposition of minor Manoj and not much reliance can be placed on considering his immature age. Mr. Majmudar therefore, submitted that the appeal may be allowed. 4. Learned APP Mr. Parikh has opposed this appeal. He submitted that the evidence of the minor is unshaken and is supported by medical evidence. The medical evidence supports the prosecution case fully and does not support the defence. He, therefore, submitted that the appeal may be dismissed. 5. We have examined record and proceedings in the context of rival submissions. There is a case where the victim - minor boy has deposed at Exhibit 24. The deposition is recorded within two months of the incident. His age at the relevant time was six years. He identifies the accused appellant and states that he was taken by the appellant by inviting him for a ride on the Sunny two wheeler and then he was taken to a field near Kapurai Cross Road. This happened while the victim was playing hide and seek near Idgah ground at about 6:00 p.m. The appellant after taking the victim to the field committed sodomy on the victim. Before doing that, he had intimidated the victim and thereafter, he left the victim near his house. On being questioned by father, Manoj informed his parents about the episode. At that time, blood was oozing from his anus. When the victim’s father went to the accused to complain, he pounced on him with a wooden log. The victim’s father thereafter, lodged the FIR. On being questioned by father, Manoj informed his parents about the episode. At that time, blood was oozing from his anus. When the victim’s father went to the accused to complain, he pounced on him with a wooden log. The victim’s father thereafter, lodged the FIR. The victim states that he was sent for medical examination. He asserts that he had informed the Doctor about the episode. In fact, despite prolonged questioning, the victim held steadfastly to his original version. 6. The prosecution has examined first informant Sureshbhai Tadvi at Exhibit 16 and Ushaben Tadvi, - mother of the victim, at Exhibit 25 and they both corroborated the victim’s version, particularly, on what happened after the incident. Dr. Nazima Shekh is examined at Exhibit 26. She states that the victim told her about sodomy by Sunil Dahyabhai (appellant) on 19.4.2007 around 6:30 to 7:00 p.m. in a field near Kapurai village. There was bleeding per rectum on 20th April, 2004 i.e. next day and the victim complained of pain at the time of passing of stool. She could not collect the sample of stood nor could she examined the victim per rectum because of non cooperation by the victim. The victim was then sent to surgery department, where he was treated as an indoor patient for a day. The doctor states that the medical papers indicate that there were interior and posterior anal fissure following sodomy. 7. What emerges from the forgoing evidence is that the victim specifically alleges sodomy by the appellant and what happened thereafter. The parents of the victim totally support the version of the victim on question as to what happened after the episode. The medical evidence indicates that the victim had developed anal fissure relatable to sodomy. There was bleeding per rectum. Thus, in our view, there is concrete and cogent evidence to connect the appellant with the offence of kidnapping and sodomy and the appellant’s conviction for these two offences is justified and legal. 8. However, we find that there is no material to show that the act was committed by the appellant upon the victim with the knowledge and reason that the victim belonged to Scheduled Caste or Scheduled Tribe, and therefore, offence punishable under Section 3(2)(5) cannot be said to have been constituted. That conviction cannot be upheld. 9. The resultant effect is that the appeal stands partly allowed. That conviction cannot be upheld. 9. The resultant effect is that the appeal stands partly allowed. The conviction of appellant Sunilbhai Dahyabhai Kharwa for offences punishable under Sections 363 and 377 of the IPC is confirmed with the respective sentences, whereas conviction of the appellant under Section 3(2)(5) of the Atrocity Act is hereby set aside. Fine of Rs. 1000/- for offence punishable under Section 3(2)(5) of the Atrocity Act, if paid, shall be refunded to the appellant.