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2011 DIGILAW 553 (GUJ)

Panchabhai Mevabhai Desai v. State of Gujarat

2011-07-20

Z.K.SAIYED

body2011
JUDGMENT : Z.K. Saiyed, J. The present appeal is filed by the appellants - original accused, under Section 374 of the Code of Criminal Procedure, challenging the Judgment and order of conviction and sentence dated 31.07.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad, in Sessions Case No. 451 of 2006, whereby the learned Judge has held the appellant - original accused guilty for the offences under Sections 363, 366 and 376 of I.P. Code and convicted and sentenced the appellant - original accused (i) for the offence under Section 363 of I.P. Code and awarded sentence to undergo R.I. for 5 (five) years and to pay a fine of Rs. 5000/- i/d to further undergo SI for one year; (ii) for the offence under Section 366 of I.P. Code and awarded sentence to undergo RI for 5 (five) years and to pay a fine of Rs. 2,000/- i/d to further undergo SI for one year, and (iii) for the offence under Section 376 I.P. Code and awarded sentence to undergo RI for 7 (seven) years and to pay a fine of Rs.5,000/- i/d to further undergo SI for one year. The learned Judge has ordered that all the sentence awarded to the accused shall run concurrently. 2. The facts of the prosecution case are that on 7.6.2006 the daughter of the complainant, named, Bhavna, had gone for purchasing the vegetables at Krashnanagar Vegetable Market. However, she did not return at the home. The complainant had made search of victim, but, till mid night, she could not be found out. Therefore, on 8.6.2006 the complainant informed Naroda Police Station that his daughter had gone for purchasing vegetables, but, she did not return back. It is alleged that the wife of the complainant, viz. Minaben, had taken divorce from the complainant and victim Bhavna was going to meet her mother often. On being inquired at the house of Minaben, they came to know that accused has, by giving false promises and inducement that he would marry the victim, eloped with her and kidnapped her from the vegetable market. Therefore, the complainant filed complaint on 16.6.2006 before the Naroda Police Station. Thereafter, necessary investigation was carried out by the Police. The statements of the witnesses were recorded on 16.6.2006. Thereafter, on 16.7.2006 the victim and accused were found from the house of one Pratapji Thakor, at Thakorvas, Ognaj. Therefore, the complainant filed complaint on 16.6.2006 before the Naroda Police Station. Thereafter, necessary investigation was carried out by the Police. The statements of the witnesses were recorded on 16.6.2006. Thereafter, on 16.7.2006 the victim and accused were found from the house of one Pratapji Thakor, at Thakorvas, Ognaj. The Panchnama of the said house was drawn. The appellant - accused was arrested and thereafter the accused and the victim were sent to the Civil Hospital for physical examination. Muddamal was sent to the Forensic Science Laboratory. Thereafter, after completing necessary procedure, the charge-sheet was filed in the Court of learned Metropolitan Magistrate. As the offence was exclusively triable by a Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions at Ahmedabad. 3. Thereafter, the charge against the accused was framed vide Exh. 4 for the offences under Sections 363, 366 and 376 of I.P. Code. The accused pleaded not guilty to the charge and claimed to be tried. 4. To prove the case against the accused, the prosecution has examined the witnesses and also produced and relied upon the documentary evidence. Thereafter, further statement of the accused were recorded under Section 313 Cr. P.C., and after hearing the parties, the learned Judge has held the appellant - accused guilty of the charges levelled against him and awarded sentence as narrated above. 5. Being aggrieved by the aforesaid Judgment and order of conviction rendered by the learned Additional Sessions Judge, Ahmedabad, the original accused - appellant has preferred present Appeal. 6. Heard learned Advocate Ms. Rekha Kapadia, appearing on behalf of appellant - original accused and learned A.P.P. Mr. H.L. Jani, appearing on behalf of the State. 7. Learned Advocate Ms. Rekha Kapadia has read the charge and contended that the prosecution has failed to prove its case beyond reasonable doubt. She has also read the oral evidence of P.W.2 - Jayantibhai Khemchandbhai Patel and contended that the conduct and character of this witness is also required to be considered. She has contended that P.W. 2 himself has admitted in his examination in chief that the accused was driving his jeep and he has served with him for about eight months. He has admitted in his cross examination that he was having good relation with the accused. Learned Advocate for the appellant has also read the deposition of P.W.4 - Dr. He has admitted in his cross examination that he was having good relation with the accused. Learned Advocate for the appellant has also read the deposition of P.W.4 - Dr. Bhavna (Exh,.18), before whom the prosecutrix has gave the history of incident. Dr. Bhavna has deposed that the prosecutrix has told her that she is knowing the accused as, after taking divorce from her father, her mother was staying with accused. She has also deposed that the prosecutrix was in love with one boy, named, Ashok, since last about four months. She has contended that from the evidence of this witness it is clearly established that there is no mark of external injury on the private part of the victim and her hymen was ruptured and, therefore, she is a consenting party. She has contended that it has also come in evidence that the mother of the victim has taken divorce from her father and, therefore, he has falsely involved the accused in the alleged crime. She has also read the evidence of P.W. 3 - Dr. Chunilal Gunjaram Kumavat (Exh.15), who has examined the prosecutrix and contended that this witness is an expert witness and from his oral evidence also the age of the prosecutrix is not proved. She has contended that from the evidence of P.W.5 - Kundlik Mandev Patil (Exh.23), who is the panch witness, the prosecution has failed to prove the contents of panchnama (Exh.31). She has also contended that the alleged incident took place on 7.6.2006, while the complaint was lodged on 16.6.2006 and, therefore, there is great delay in filing the complaint and the complainant had not given any satisfactory explanation for filing the complaint late. She has also contended that from the evidence it clearly appears that the prosecutrix herself had gone with the accused and stayed with him for more than one month and, therefore, also she is a consenting party. She has also contended that the prosecutrix herself has admitted that she was in love with one boy, named, Ashok and, therefore, the character of the prosecutrix is also doubtful. She contended that from the perusal of documentary as well as oral evidence, it clearly appears that the appellant is wrongly booked by the prosecution and the learned Judge has committed grave error in holding the appellants guilty for the offences charged against him. 8. Learned APP Mr. She contended that from the perusal of documentary as well as oral evidence, it clearly appears that the appellant is wrongly booked by the prosecution and the learned Judge has committed grave error in holding the appellants guilty for the offences charged against him. 8. Learned APP Mr. Jani, appearing on behalf of the State, has supported the Judgment and order of the trial Court. He has contended that the trial Court has, after appreciating the oral as well as documentary evidence, rightly held the accused guilty for the offences charged against him and, therefore, no interference is called for. He has contended that the oral evidence of victim is sufficient to prove the guilt against the accused. He has contended that looking to the Birth Certificate (Exh. 35) of the victim, issued by the Ahmedabad Municipal Corporation, it clearly appears that the prosecutrix was minor on the date of incident and, therefore, even if it is believed that the prosecutrix was a consenting party, the same is immaterial. He has also read the observations of the learned Judge and contended that the learned Judge has rightly held the accused guilty for the offences charged against him and, therefore, no interference is called for. He has, therefore, contended that looking to the facts and circumstances of the case and looking to the evidence on record, the prosecution has proved its case beyond reasonable doubt and the learned Judge has rightly held the appellant - accused guilty for the offences alleged against them and no interference is called for by this Court. 9. I have gone through the Judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the respective parties. I have gone through the record and proceedings of the case. I have also gone through the evidence of the prosecution witnesses and other material evidence. I have also considered the Judgment of the trial Court. It is clearly evident from the record (Ex.35) - the Birth Certificate, issued by the Ahmedabad Municipal Corporation that the birth date of the prosecutrix is 3.8.1990. The alleged incident has occurred on 7.6.2006 and, therefore, on the date of alleged incident, the prosecutrix was minor, aged about 16 years and she was under the lawful custody of her parents. It is clearly evident from the record (Ex.35) - the Birth Certificate, issued by the Ahmedabad Municipal Corporation that the birth date of the prosecutrix is 3.8.1990. The alleged incident has occurred on 7.6.2006 and, therefore, on the date of alleged incident, the prosecutrix was minor, aged about 16 years and she was under the lawful custody of her parents. As the prosecutrix was minor on the date of alleged incident, her consent is immaterial. I have also considered the evidence of prosecutrix. She has admitted in her evidence that the accused was the Jeep driver of her father and, therefore, she was very well knowing him. She has also deposed that after taking divorce from her father, her mother was staying with the accused at Naroda as his “kept”. She has deposed that she was going to meet her mother often and her mother has told the accused for finding out good boy for her (prosecutrix). She has categorically deposed that on 7.6.2006 at 9.00 A.M. when she had gone to vegetable market, the accused met her and told that she should come with him, he will find out good boy for her marriage. When she told the accused that he should take her parent with him and thereupon the accused told her that he is like her father. She has, therefore, put the faith on the accused and had gone with him. Thereafter, the accused had taken away the prosecutrix with him and committed sexual intercourse with him. If it is believed that the accused has done the sexual intercourse with the victim, with her consent, then also, the victim being minor on the date of incident, her consent is immaterial. The prosecutrix has also narrated the same story before Dr.Bhavna Patel (Exh.18), who has examined her. This witness has categorically deposed that prosecutrix narrated before her the history about the incident and she had noted down the same. In her cross examination, this witness has deposed that the prosecutrix has given the history about the incident at her own. From the perusal of overall evidence, no doubt, there are some material contradictions in the evidence of prosecution witnesses, but, it clearly appears that the prosecutrix was minor, below the age of 16 years, on the date of incident. In her cross examination, this witness has deposed that the prosecutrix has given the history about the incident at her own. From the perusal of overall evidence, no doubt, there are some material contradictions in the evidence of prosecution witnesses, but, it clearly appears that the prosecutrix was minor, below the age of 16 years, on the date of incident. From the evidence on record, it also clearly appears that the accused has, by giving false promises, abducted the prosecutrix from the lawful custody of her parents and took her with him and committed sexual intercourse. It is also an admitted fact that the accused had stayed with prosecutrix for about one month. The act of the accused is not tolerable and is a fatal blow on the social structure inasmuch as he was keeping mother of the prosecutrix as his “kept”, who was the wife of his employer - complainant, with whom he was working as jeep driver. Thereafter, he trapped the daughter of his so called “kept” saying that he is like his father and he would find out a good boy for her. Thus, the appellant has not only committed the crime against the prosecutrix, but, also against the society. Looking to the conduct of the accused, the same is not tolerable and cannot be excused or viewed leniently. I am, therefore, of the opinion that the learned Judge has not committed any error in holding the appellant - accused guilty for the charges alleged against him. The learned Judge has considered all the aspects of the matter and looking to the act done by the accused, the learned Judge has rightly held the accused guilty of the offences charged against him and, therefore, no interference is called for. 10. In view of above, the Appeal is dismissed. The Judgment and order of conviction and sentence dated 31.07.2007 passed by learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad, in Sessions Case No. 451 of 2006 is hereby confirmed. If the appellant - accused is on bail, his bail bond stands cancelled and he is directed to surrender before the Jail Authority within a period of 4 (four) weeks, from the date of this Judgment, to undergo his remaining sentence, if any, failing which the trial Court shall issue non-bailable warrant against the accused to effect his arrest. If the appellant - accused is on bail, his bail bond stands cancelled and he is directed to surrender before the Jail Authority within a period of 4 (four) weeks, from the date of this Judgment, to undergo his remaining sentence, if any, failing which the trial Court shall issue non-bailable warrant against the accused to effect his arrest. R & P to be sent back to the trial Court immediately. Appeal dismissed.