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2013 DIGILAW 536 (GUJ)

Thakor Narsangji Ablaji v. State of Gujarat

2013-09-03

K.J.THAKER, K.S.JHAVERI

body2013
JUDGMENT K. J. THAKER, J. Challenge in this appeal is to the judgment and order passed by the learned 2nd Joint Assistant Sessions Judge, Mehsana in Sessions Case No.34 of 1990 dated 19.04.1990 whereby, the appellant, original accused, has been convicted for the offences punishable u/Ss. 363, 366 and 376 of Indian Penal Code (for short, the IPC). For conviction u/Ss. 363 and 366 IPC, the appellant was sentenced to undergo rigorous imprisonment for two years in each case whereas, for conviction u/S. 376 IPC, the appellant has been sentenced to undergo rigorous imprisonment for four years. All the three sentences were ordered to run concurrently. The sentence already undergone by the appellant was given as set-off. 2. Antecedent facts of this case, which require brief mention, are these; The appellant, original accused, was working as a driver of a tractor belonging to one Dahyabhai Chaudhary, in which the prosecutrix was serving as a labourer. On 08.10.1989 the appellant met the prosecutrix and asked her to meet him on the next day at the outskirts of village at 1900 hrs. Accordingly, on 09.10.1989 at 1900 hrs., they met at the decided place and thereafter, the appellant lured the prosecutrix to accompany her at different places. During their stay at different places, the appellant entered into physical relationship with the prosecutrix. A complaint in connection with the above incident was lodged before Visnagar Police Station vide I-C. R. No.383/1999. Necessary investigation was carried out and the appellant came to be arrested. At the end of investigation, charge-sheet was filed against the appellant before the magisterial Court. However, since the case was sessions triable, it was committed to the Sessions Court for adjudication on merits. 3. During the trial, the prosecution had examined eleven witnesses; Prosecution Name of Witness Exhibit Witness No. No. 1 Moptaji Vishaji Thakor 19 2 Kamlaben Moptaji 21 3 Gulabkhan Samirkhan 22 4 Dr. M.M. Shah 24 5 Vishnukumar Gunvantlal 28 6 Umiyaben Somtaji 29 7 Keshaji Somtaji 30 8 Magansinh Thakar 33 9 Vasangji Ajaji 35 10 Pratappuri Manipuri 36 11 P.M. Bhaliya 37 4. M.M. Shah 24 5 Vishnukumar Gunvantlal 28 6 Umiyaben Somtaji 29 7 Keshaji Somtaji 30 8 Magansinh Thakar 33 9 Vasangji Ajaji 35 10 Pratappuri Manipuri 36 11 P.M. Bhaliya 37 4. The prosecution had also collected and placed reliance upon several documentary evidence, more particularly, panchnama of scene of offence at Exhibit 8, FSL Reports at Exhibits 15 & 17, Serology Reports at Exhibits 16 & 18, complaint at Exhibit 20, Medical Certificate at Exhibits 25 and 27 and copy of School Leaving Certificate at Exhibits 34. 5. At the end of trial, the Court below recorded further statement of accused u/S. 313 Cr.P.C. and ultimately, passed the impugned judgment and order of conviction, which has led to the filing of present appeal. 6. We have heard learned counsel for the respective parties and have perused the oral as well as documentary evidence on record. We have also gone through the impugned judgment and order passed by the Court below. Having gone through the record, it appears that age of the prosecutrix was not definite and was uncertain. No cogent documentary evidence, viz. Birth Certificate, was produced on record to prove the age of prosecutrix. The medical evidence on record in the form of testimony of Dr. M.M. Shah (PW4) shows that the age of prosecutrix was some where between 14-16.5 years at the time when the alleged offence was committed. It is established from his testimony that the prosecutrix had not sustained any injury over her private part and that she was habituated to sex. This evidence of the doctor (PW4) gets corroboration from the testimony of the prosecutrix herself (PW2). From her testimony, it is evident that she was in contact of the appellant for some time prior to the incident and that they used to frequently meet and indulge into sexual intercourse. She also deposed that some residents of the village were having knowledge about her relationship with the appellant. Her evidence shows that she had eloped with the appellant and had stayed with the appellant under one roof. It is pertinent to note that though the prosecutrix was taken to different places by the appellant, as per her own testimony and during which period, the prosecutrix had met certain persons who were known to her, the prosecutrix had never made any complaint regarding her alleged kidnapping or rape by the appellant to anyone. 7. It is pertinent to note that though the prosecutrix was taken to different places by the appellant, as per her own testimony and during which period, the prosecutrix had met certain persons who were known to her, the prosecutrix had never made any complaint regarding her alleged kidnapping or rape by the appellant to anyone. 7. Having gone through the evidence of prosecutrix and considering the same in background of the medical evidence on record, it cannot be said that the appellant had kidnapped the prosecutrix or had taken her away from the legal custody of her parents. In our opinion, the prosecution has not been able to prove that ingredients of both Sections 363 and 366, IPC are present in this case. There is nothing on record to show that the prosecutrix was either kidnapped from the lawful guardianship of her parents or that she was abducted with the intent to force or seduce her to enter into illicit intercourse. We find that the essential ingredients for constituting the offences punishable u/Ss. 363 and 366, IPC are missing in this case and therefore, the findings recorded by the Court below regarding the same is erroneous and conviction of the appellant under the said two Sections deserves to be quashed and set aside. 8. Insofar as the conviction of appellant u/S. 376, IPC is concerned, it is established from the medical evidence on record, as discussed herein above, that no injuries were found on the private part of the prosecutrix. Therefore, it is apparent that the appellant was having consensual sexual intercourse with the prosecutrix. Once it is established that the appellant had indulged into consensual sexual intercourse with the prosecutrix, the next question that is required to be ascertained is the age of prosecutrix at the relevant point of time. In the impugned judgment itself, the Court below has concluded that the age of prosecutrix may be above or below 16 years. As discussed herein above, no documentary evidence was produced by the prosecution from which a definite conclusion could be arrived at regarding the age of prosecutrix. All that was produced is an extract of the Register containing data regarding School Leaving Certificates, which could never be relied upon for deciding the age of an individual. 9. As discussed herein above, no documentary evidence was produced by the prosecution from which a definite conclusion could be arrived at regarding the age of prosecutrix. All that was produced is an extract of the Register containing data regarding School Leaving Certificates, which could never be relied upon for deciding the age of an individual. 9. We find that the Court below has recorded conviction of the appellant u/S. 376 IPC merely on the basis of the ocular evidence, without any proof, which is not a conclusive piece of evidence for ascertaining the definite age of an individual. Under such circumstances, the conviction of the appellant u/S. 376 IPC also deserves to be quashed and set aside. 10. In view of the above discussion, the conviction of the appellant, original accused, u/Ss. 363, 366 and 376 IPC is required to be quashed and set aside. The oral as well as documentary evidence on record establish that this was a case of consensual sexual intercourse. No ingredients of the offence punishable u/Ss. 363 or 366 IPC are present in this case. In the absence of any documentary evidence on record regarding the exact date of birth of prosecutrix, it will not be proper to convict the appellant for the offence under S. 376 IPC either. Hence, the impugned judgment and order passed by the Court below deserves to be quashed and set aside entirely. 11. For the foregoing reasons, the appeal is allowed and the impugned judgment and order dated 19.04.1990 is quashed and set aside. The appellant, original accused, is acquitted of all the charges levelled against him by granting him benefit of doubt. The appellant, original accused, is on bail and therefore, the bail bonds stand cancelled. The appeal stands disposed of accordingly. Records and proceedings, if lying with this Court, be sent to the Court below forthwith. Appeal allowed.