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2015 DIGILAW 1308 (GUJ)

Abhaysinh Noorsinh Pradhan v. State of Gujarat

2015-12-21

RAJESH H.SHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. (Oral) - The present Appeal is directed against the impugned judgment and order rendered in Sessions Case No.264/2005 by the Additional Sessions Judge, Fast Track Court, Surat dated 15.11.2006 recording conviction of the appellant-accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code imposing sentence as stated in the impugned order. 2. The facts of the case briefly summarised are as follows: 2.1 As it transpires from the material and evidence on record, the present appellant-accused enticed away the minor daughter of the complainant-father to marry and the complainant-father lodged complaint that on 26.08.2001, the victim had gone to her friend and, thereafter, she has not returned and, therefore, initially complaint was given as the victim was missing. However thereafter, the victim had returned to parental house and is said to have stated that the appellant-accused had abducted her with an intentional to marry and in fact, had married and had moved from place to place and had committed an offence of rule under Section 376 of the Indian Penal Code against her will. As a result of physical relations, she gave birth to a child but missed in the train while returning to her parental house. Therefore on the basis of the complaint, FIR being C.R.No.I-114/2001 was registered at Pandesara Police Station for the offence under Sections 363, 366 and 376 of the Indian Penal Code. 2.2 After the investigation was over, the charge-sheet was filed and as the offence was triable by the Court of Sessions, it was committed to the Sessions Court, Surat. 2.3 Thereafter, the Sessions Judge has proceeded with the trial and recorded the further statements of the accused under Section 313 of the Criminal Procedure Code. 2.4 After hearing the learned APP as well as learned advocate for the defence and on appreciation of the evidence, the Sessions Judge recorded the conviction of the accused as stated in the impugned judgment. 3. Heard learned advocate, Shri Pratik Barot for the appellant-accused and learned APP Shri H.L. Jani for the respondent-State. 4. Learned advocate, Shri Barot referred to the charge and testimony of the complainant-father, PW-1 at Exh.9. He submitted that the date of incident is 27.08.2009. 3. Heard learned advocate, Shri Pratik Barot for the appellant-accused and learned APP Shri H.L. Jani for the respondent-State. 4. Learned advocate, Shri Barot referred to the charge and testimony of the complainant-father, PW-1 at Exh.9. He submitted that the date of incident is 27.08.2009. He pointedly referred to the complaint at Exh.10 and submitted that initially it was given as the minor daughter of the complainant was missing, however subsequently, the victim, PW-2 had returned to the parental house as stated by her in her testimony at Exh.13 giving account of what has transpired. Learned advocate, Shri Barot referred to the testimony of the victim, PW-3 at Exh.13 and submitted that point which is required to be considered is whether the victim was minor is established beyond reasonable doubt and the prosecution has failed to appreciate. He further submitted that again the aspect of consent is required to be considered as she had voluntarily accompanied and in fact, married to the appellant-original accused and, therefore, she had voluntarily accompanied the appellant-original accused, she had moved with her consent and volition and, therefore, no evidence can be supported. He submitted that for that purpose, the age of the victim is required to be considered which the Court below has failed to appreciate and consider. Learned advocate, Shri Barot referred to the testimony of the PW-3, Dr. Ashwin Vachhani, PW-3 and medical certificate at Exh.21. Similarly, he referred to the testimony of Dr.Chaudhary, PW-4, Exh.22. He submitted that Dr.Chaudhary, PW-4 in his testimony at Exh.22 has stated that he had examined the victim for the purpose of age verification or opinion regarding the age. He has stated that the certificate at Exh.23 is regarding the age. He also referred to the testimony of Dr.Nipaben, PW-5, Exh.26 and submitted that she has also taken X-ray and has also given certificate regarding the age. Learned advocate, Shri Barot submitted that though school leaving certificate, Exh.11 refers to the date of birth as 15.06.1988, there is no evidence as no witness is examined from the school. He also referred to the testimony of Dr.Nipaben, PW-5, Exh.26 and submitted that she has also taken X-ray and has also given certificate regarding the age. Learned advocate, Shri Barot submitted that though school leaving certificate, Exh.11 refers to the date of birth as 15.06.1988, there is no evidence as no witness is examined from the school. He emphasised that entry in the registered of the school and the certificate issued on the basis of such entry, is required to be established by necessary evidence and no witness is examined from the school and the father has only produced such certificate and he has not stated on what basis, he has given the date of birth of the victim before the school authority. Therefore learned advocate, Shri Barot submitted that in absence of any specific evidence regarding the age, ossification test is carried and the medical evidence has referred to her age between 14-16 years, meaning thereby, there could be some verification here or there. Learned advocate, Shri Barot referred to the provisions of Sections 375 and 376 of the Indian Penal Code and submitted that if she was aged about 16 years at the relevant time, she would not be considered minor and, therefore, it would not attract the offence and the Court below has committed an error in recording the conviction without any basis. He submitted that in any case, benefit of doubt could have been given to the accused when the prosecution has failed to appreciate beyond reasonable doubt as regards the age of the victim. Learned advocate, Shri Barot submitted that IO is not examined because of the medical reasons and the source of the date of birth and the school leaving certificate is therefore not established and, therefore, ossification test is in the form of medical opinion about the age. He strenuously submitted that therefore even if this ossification test and the medical certificate are considered, it is stated that her age may be between 14-16 years and, therefore, it raises doubt about the exact date of the victim and the Court below has committed an error in appreciating this evidence. Learned advocate, Shri Barot referred to and relied upon the judgment in case of State of Madhya Pradesh v. Munna @ Shambhoo Nath, reported in 2015 (4) Crime 45 (Para Nos.8 and 11). 5. Learned advocate, Shri Barot referred to and relied upon the judgment in case of State of Madhya Pradesh v. Munna @ Shambhoo Nath, reported in 2015 (4) Crime 45 (Para Nos.8 and 11). 5. Learned advocate, Shri Barot alternatively submitted that in any case, if the Court below is not convinced on the aspect of age of the victim, it may consider totality of the facts and circumstances which suggests about the consent or volition of the victim as the conviction may be maintained but the sentence may be modified or reduced to the extent undergone. He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Chhattisgarh v. Lekhram, reported in (2006) 5 SCC 736 and emphasised on the aspect of sentence and mitigating affect. He submitted that as observed in this case also, though the victim was minor, as observed, mitigating circumstances were considered and sentence was reduced. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Madan Mohan Singh & Ors. v. Rajni Kant & Anr., reported in (2010) 9 SCC 209 . 6. Learned APP Shri Jani, however, referred to the testimony of PW-1, father at Exh.9. He submitted that initially as the victim had not returned to the house, complaint was given for the missing daughter, which is at Exh.10. Learned APP Shri Jani submitted that the school leaving certificate at Exh.11 is produced by the father and it is required to be considered that no objection was raised qua exhibiting the same and, therefore, once the document is exhibited, now it cannot be said that the age is not proved beyond reasonable doubt. Learned APP Shri Jani referred to the testimony of the victim, PW-2 at Exh.13 and submitted that even she has stated referring to Exh.11, school leaving certificate that she had studied in the school at Gujarat and not at Orissa. He emphasised that no case is made out on this aspect and, therefore, it is too late now to raise any such objection. 7. Learned APP Shri Jani submitted that apart from the certificate from the ossification test is carried and the medical evidence and the certificate clearly establish that the age of the victim was less than 16 years (Emphasis Supplied). 7. Learned APP Shri Jani submitted that apart from the certificate from the ossification test is carried and the medical evidence and the certificate clearly establish that the age of the victim was less than 16 years (Emphasis Supplied). Learned APP Shri Jani submitted that for the purpose, he referred to Exh.23, which is a medical certificate, wherein it has been stated that “14 years and less than 16 years”. Learned APP Shri Jani also referred to the testimony of Dr.Chaudhary, PW-4, Exh.22 and submitted that he has clearly stated that he had examined the victim for the purpose of medical opinion regarding the age and has issued certificate, Exh.23, which suggests that victim was less than 16 years of age. Learned APP Shri Jani therefore submitted that the submissions made referring to the provisions of Section 375 of the Indian Penal Code that at the relevant time, if the victim was aged 16 years, the offence under Section 376 of the Indian Penal Code would not be attracted, is misconceived and it would not apply. Learned APP Shri Jani submitted that considering the medical evidence and the testimony of both doctors and the certificate at Exhs.23 and 21 would clearly establish that she is minor even according to medical opinion in the ossification test. Learned APP Shri Jani referred to the impugned judgment and submitted that this aspect has been considered in Para Nos.12 of the judgment and submitted that as observed referring to earlier judgment of the High Court if the prosecution has failed to prove beyond reasonable doubt then, the benefit could go to the accused. In the facts of the case, age of the victim is clearly established that she was below aged of 16 years and, therefore on the contrary, when the prosecution has established and the accused has not raised any objection or referred in the cross-examination, now it cannot be permitted to argue that the victim was major and she had accompanied with consent. Learned APP Shri Jani submitted that once it is established that the victim was minor below aged of 16 years, consent could not be relevant. Learned APP Shri Jani submitted that once it is established that the victim was minor below aged of 16 years, consent could not be relevant. In support of his submissions, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Satish Kumar Jayantilal Dabgar v. State of Gujarat, reported in (2015) 7 SCC 359 and submitted that it has discussion about the legislative wisdom and the intention, which cannot be overlooked. Similarly, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Murugan @ Settu v. State of Tamil Nadu, reported in (2011) 6 SCC 111 . Learned APP Shri Jani therefore submitted that the present appeal may not be entertained. 8. Learned APP Shri Jani also submitted that alternative submission with regard to the modification of the sentence may not be considered as the Hon'ble Apex Court has made observations deprecating the imposition of sentence less than the minimum sentence prescribed by the statute or the Legislature. He submitted that in such heinous crime, when the Legislature has provided for the minimum sentence, there is no reason or justification or special circumstances to modify it or take a lenient view. In support of his submission, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Deepak v. State of Haryana, reported in (2015) 4 SCC 762 . 9. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration and whether the impugned judgment and order calls for any interference. 10. As could be seen from the rival submissions made by both sides referring to the material and evidence on record at length, minor daughter of the complainant is said to have been abducted which led to the complaint. Further the victim, PW-2 in her testimony at Exh.13 has clearly stated about the fact that she was enticed away or lured on the promise of marriage. Therefore she had accompanied the accused and, thereafter, the accused had committed rape on her though they had stayed together. She has also stated about the fact that he would not leave her alone and as it was in Delhi and other places, she had no courage and had to succumb to the pressure of the accused. Therefore she had accompanied the accused and, thereafter, the accused had committed rape on her though they had stayed together. She has also stated about the fact that he would not leave her alone and as it was in Delhi and other places, she had no courage and had to succumb to the pressure of the accused. Assuming without admitting the submissions about the consent of the victim, the moot question is whether, it could be said to be a consent in law. It has two aspects; one with regard to the age and other with regard to the conduct or manner in which the consent can be said to have been obtained. As regards this aspect of consent with reference to the age, there is no doubt that the victim was minor aged about less than 16 years. The school leaving certificate has been placed on record at Exh.11 by the complainant-father and it has come from the proper custody of a father, which has been exhibited. Therefore the submission that as there is no witness examined from the school, it may not be considered with regard to the contents of the certificate, is thoroughly misconceived. The school leaving certificate produced by father naturally has been exhibited and admitted in the evidence. Further as rightly contended, when it was exhibited, same has not been objected by the accused and, therefore, it is now too late to raise such objection on this aspect. The date of birth recorded in the school leaving certificate at Exh.11 clearly establishes that she was below the age of 16 years. 11. Further the victim has also been examined medically for ossification for determining the age of the victim. Three doctors have been examined by the prosecution. The testimony of Dr.Chaudhary, PW-4 at Exh.22 makes the position clear as he has examined the victim for the purpose of age verification and opinion regarding the age. He has given medical certificate, Exh.23 on the basis of the medical examination, wherein it has been clearly stated, “14 years and less than 16 years”. Another Dr. Ashwin Vachhani in his testimony at Exh.20 has also corroborated and his certificate is at Exh.21. He has given medical certificate, Exh.23 on the basis of the medical examination, wherein it has been clearly stated, “14 years and less than 16 years”. Another Dr. Ashwin Vachhani in his testimony at Exh.20 has also corroborated and his certificate is at Exh.21. Therefore, the submissions made by learned advocate, Shri Barot that the prosecution has failed to establish regarding the age of the victim beyond reasonable doubt and, therefore, benefit should have been gone to the accused and/or the Court below has committed an error in appreciating the evidence, is thoroughly misconceived. It is required to be stated that the prosecution has established the age of the victim based on documentary evidence like school leaving certificate at Exh.11 and also by medical evidence in the form of medical certificate at Exh.23. 12. Therefore once it has been established that the age of the victim was less than 16 years, reference to the provisions of Section 375 of the Indian Penal Code that if the victim is of 16 years of age, offence under Section 376 of the Indian Penal Code would not be attracted, is also misconceived. Another submission that IO is not examined and he has not stated about the source from which the certificate is produced, is misconceived as IO was suffering from cancer and he could not be examined and the certificate has been produced at Exh.11 by the father and it has been exhibited pursuant to the testimony of complainant-father at Exh.9. Therefore the submissions are without any merits. 13. One more aspect referring to consent is that assuming that she was minor, she had consented. Again this aspect of consent as stated above has to be considered in light of the age of the victim. It is well settled that if the victim is minor, consent would no be relevant. The Hon'ble Apex Court in a judgment in case of Satish Kumar Jayantilal Dabgar (supra) has observed, “Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.” 14. Thus the Hon'ble Apex Court has referred to this aspect of consent with reference to the legislature wisdom and the object of the Legislature, which cannot be overlooked. When the Legislature in its wisdom has referred to this aspect with consent of minor, it would not be relevant as the minor is not expected to have maturity or discretion to consider about the consequence. Moreover as stated herein above, even consent does not necessarily imply that there was a free volition or consent in every case and it has to be considered on the basis of the factual background, circumstances in which the victim was placed and also other attending circumstances to ascertain whether her consent could be said to be a consent in law. If such consent is by threat, coercion or creating circumstance, which make the victim helpless and succumb to the pressure, it cannot be said to be free, consent and volition. 15. A reference can be made to Jowitt's Dictionary on English Law, which has defined consent in the following words: "Consent supposes three things, a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind." 16. This aspect has been considered by the Hon’ble Apex Court in the judgment in case of Uday v. State of Karnataka, reported in (2003) 4 SCC 46 and it has been quoted : "The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent." Therefore, it could not be termed as consent in the facts of the present case as it is not a free and voluntary consent. 17. 17. Therefore the submissions made by learned advocate, Shri Barot referring to the testimony of the victim at Exh.13 that it would make evident that she had voluntarily accompanied, is misconceived. It is required to be stated that in her testimony at Exh.13, she has clearly stated about the threat and intimidation and the pressure, under which, she had accompanied and she has clearly stated that against her will or consent, the accused had physical relationship, which cannot be brushed aside. It is well settled that if the testimony of the victim is natural, trustworthy and inspire confidence, it cannot be brushed aside on hypothesis that she would have accompanied voluntarily. In any view of the matter, as stated above, as it has been established as recorded in the impugned judgment and order that the victim was below age of 16 years, the conviction recorded cannot be said to be erroneous. 18. Another facet of submission which have been emphasised by learned advocate, Shri Barot on the aspect of sentence that accused is also young and considering the totality of the circumstance of the fact that the victim had accompanied voluntarily even she is minor, it may be considered as mitigating circumstances and the sentence may be reduced, require consideration. Though he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Chhattisgarh (supra) referring to Head Note 'B', it is required to be stated that as observed, the Hon'ble Apex Court referred to adequate and special reasons in a given set of facts and circumstances and it cannot be said to be a ground applicable in every case. The observations in this judgment itself make it clear that though she was minor, she was mature and they had known to each other and, therefore, in peculiar circumstances, the observations have been made, which may not be applicable in the facts of the present case. On the contrary, the Hon'ble Apex Court has made observations in a judicial pronouncement frowning upon less than minimum sentence prescribed by the Legislature in such case. The Hon'ble Apex Court in a judgment in case of Deepak (supra) has clearly made the observations that therefore even the submissions made by learned advocate, Shri Barot on this aspect about the modification of the sentence also cannot be sustained. 19. The Hon'ble Apex Court in a judgment in case of Deepak (supra) has clearly made the observations that therefore even the submissions made by learned advocate, Shri Barot on this aspect about the modification of the sentence also cannot be sustained. 19. The present appeal therefore deserves to be dismissed and accordingly stands dismissed. Appeal dismissed.