State of Gujarat v. Akhtarkhan Abdulsattarkhan Pathan
2015-12-22
M.R.SHAH, Z.K.SAIYED
body2015
DigiLaw.ai
JUDGMENT : M.R. Shah, J. 1.0. As all these Appeals arise out of the impugned judgment and order passed by the learned Additional Sessions Judge, 4th Fast Track Court, Sabarkantha at Modasa (hereinafter referred to as "the trial Court") in Sessions Case No. 166/2006, all these Appeals are heard, decided and disposed of together by this common judgment and order. 2.0. At the outset it is required to be noted that by the impugned judgment and order the learned trial Court has convicted original accused No. 1 for the offence punishable under Sections 376 and 511 of the Indian Penal Code and has imposed the punishment/sentence of three years and six months Rigorous Imprisonment with a fine of Rs. 10,000/- and in default to undergo further six months Rigorous Imprisonment. However, the learned trial Court has acquitted original accused No. 1 for the offences punishable under Sections 363 and 366 of the IPC. As observed herein above, as such, the learned trial Court has convicted original accused No. 1 for the offence punishable under Section 376 read with Section 511 of the IPC. By the impugned judgment and order the learned trial Court has acquitted original accused No. 2 for the offence punishable under Sections 363, 366, 376, 368 read with Section 114 of the IPC. Hence, Criminal Appeal No. 1796/2008 has been preferred by the appellant-State of Gujarat under Section 377 of the Code of Criminal Procedure to enhance the punishment/sentence imposed by the learned trial Court while convicting original accused No. 1 for the offence punishable under Section 376 read with Section 511 of the IPC. 2.1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court by which the learned trial Court has acquitted original accused No. 2, the State has preferred Criminal Appeal No. 1804/2008. 2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction passed by the learned trial Court convicting original accused No. 1 for the offence punishable under Section 376 read with Section 511 of the IPC, original accused No. 1 has preferred Criminal Appeal No. 1723/2008. 3.0. It was the case of the prosecution as mainly emerging from the First Information Report was that the first informant, namely, Akhatarali Akbarali Siayed is the father of a girl, namely, Falaknaz, who is residing at Samehidayat Society, Dhdharwada Road, Modasa.
3.0. It was the case of the prosecution as mainly emerging from the First Information Report was that the first informant, namely, Akhatarali Akbarali Siayed is the father of a girl, namely, Falaknaz, who is residing at Samehidayat Society, Dhdharwada Road, Modasa. It was alleged that the daughter of the first informant was studying in Standard X at Madni High School and on 21/08/2006, during recess hours, his daughter had come to the house of the complainant for taking snacks. It was alleged that on that day at around 2 o'clock in the noon, the daughter of the complainant left for the school on a bicycle and since 5:00 hours in the evening as she did not return back to home, the complainant, his son Irfan and complainant's wife started inquiring the whereabouts of his daughter but in vain. It was alleged that thereafter one Taufiq Mohammad Rafiq Farkiwala and Akram Sabbirbhai Soni met the complainant opposite Milan Decoration on Dudharwada Road and upon asking them, the complainant came to know that on 21/08/2006 at about 2:30 hours, in the noon, the appellant herein and complainant's daughter Falaknaz were chatting with each other inside an autorickshaw and thereafter they were seen going towards Dudharwada Road. Thereafter, the complainant made the inquiries at different places but could not locate them. Thereafter, on 25/08/2006, after lapse of almost 5 days, and FIR came to be registered against the appellant herein, initially, for the offences under Section 363 and 366 of the IPC. 3.1. Thereafter, the accused as well as the prosecutrix were found from one village named Dantali and, therefore, after recording her statement by the Investigating Officer, offence under Section 376 was also added. The Investigating Officer thereafter recorded the statement of the concerned persons and also gathered documentary evidence, more particularly, the medical evidence of the prosecutrix as well as the accused, who in the meantime was arrested. During the investigation, it was disclosed that original accused No. 2 gave shelter to accused No. 1 and the prosecutrix in whose house the prosecutrix was kept and original accused no1 was alleged to have committed the offence under Section 376 of the IPC. Original accused No. 2 came to be arrayed as an accused. The clothes of the prosecutrix and the accused were sent to the FSL.
Original accused No. 2 came to be arrayed as an accused. The clothes of the prosecutrix and the accused were sent to the FSL. Thereafter after completion of the investigation the Investigating Officer filed the chargesheet against both the accused in the Court of learned Judicial Magistrate First Class for the offence punishable under Sections 363, 366, 376 and 114 of the IPC. The case was exclusively triable by the learned Court of Sessions. The learned Magistrate committed the case to the Sessions Court, Sabarkantha, which was sent to the learned trial Court for trial. The learned trial Court framed the charge against both the accused at Exh.10 for the offence punishable under Sections 363, 366 and 376 against original accused No. 1 and for the offence punishable under Sections 363, 366, 376, 368 and 114 of the IPC against original accused No. 2. Both the accused pleaded not guilty and, therefore, they came to be tried by the learned trial Court for the aforesaid offences. 3.2. To prove the case against the accused, the prosecution examined as many as 23 following witnesses; Sr. No. Exh. No. Name of witness 1 24 Deposition on oath of Akhtarali Akarali Saiyed 2 34 Deposition on oath of Sbihakhatun Akhtarali 3 37 Deposition on oath of Kumari ‘X’ 4 41 Deposition on oath of Taufiq Mohammad Rafiq Kushkiwala 5 42 Deposition on oath of Gulamanbi Noor Mohammad Malek 6 44 Deposition on oath of Dr. Dharmesh Girishchandra Patel 7 48 Deposition on oath of Dr. Rinaben Kaushikbhai Choksi 8 50 Deposition on oath of Pravinchandra Ramchandrabhai Sanghvi 9 53 Deposition on oath of Dr. Gautam Jivraj Makwana 10 58 Deposition on oath of Mohammad Usmanbhai Sheth 11 60 Deposition on oath of Mohammad Yusuf Ibrahimbhai Khanji 12 63 Deposition on oath off Habibkhan Gulabkhan 13 66 Deposition on oath of Nishanahmed Jan Mohammad 14 57 Deposition on oath of Yusufbhai Ismailbhai Qureshi 15 69 Deposition on oath of Seharmiya Najumiya Malek 16 70 Deposition on oath of Sultanahmed Ibrahimbhai 17 73 Deposition on oath of Mahendrasinh Babarsinh Solanki 18 74 Deposition on oath of Amratbhai Kacharabhai Chanvi 19 76 Deposition on oath of Faqrunisa Habibkhan Pathan 20 77 Deposition on oath of Safibhai Husainbhai Malek 21 78 Deposition on oath of Maljibhai Sankabhai Desai 22 79 Deposition on oath of Panchabhai Bhagvanbhai Patel 23 85 Deposition on oath of Dr.
Pankaj Gopalram Soni 3.3. Through the aforesaid witnesses, the prosecution also brought on record the following documentary evidence; Sr. No. Exh. No. List of documentary evidence 1 25 Complaint 2 45 Medical Yadi 3 46 Deposition of prosiecutrix Kumari “X” 4 47 Medical certificate of Kumari “X” 5 49 Medical certificate of Kumari “X” 6 51 Copy of the birth register (page 2) 7 52 Birth certificate of Kumari “X” 8 54 Age determination certificate of Kumari “X” 9 55 X ray Plate 10 56 X ray Plate 11 57 X ray Plate 12 59 Panchnama of condition of body of Kumari “X” 13 61 Panchnama of Mudammal Bolero Jeep 14 62 Chargesheet of dropping purshis of witness no. 3, 5 15 64 Panchnama of body condition of Accused no. 1 16 68 Panchnama of the place of the incident (Dantali) 17 71 Birth proof of Kumari “X” 18 75 Copy of station dairy 19 80 Dispatch Entry dated 20.09.2006 20 81 FSL Letter dated 11/12/2006 21 82 FSL Report 22 83 Serology report 23 86 Police Yadi 24 87 Copy of certificate with regard to the collection of sample of Accused no. 1 25 89 RTO certificate of Bolero Jeep No. GJ-9-Y-1493 26 90 Closure of the purshis 3.4. After closure of the evidence by the prosecution further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. Original accused denied having committed the offence. He also gave his further statement at Exh.109 and he stated that according to original accused No. 1 both original accused No. 1 and the prosecutrix were known to each other and that the prosecutrix was time and again contacting original accused No. 1 on phone and was pressurizing him for marriage. However both of them were from different caste and, therefore, her parents were hesitant for their marriage. However to know the reaction from the society her parents themselves sent the prosecutrix alongwith original accused No. 1 and that is why both of them ran away. It was specifically denied that they had any sexual intercourse. Original accused No. 2 in his further statement recorded under Section 313 of the Code of Criminal Procedure denied having committed the offence as alleged, more particularly, abating original accused No. 1 in committing the offence under Sections 363, 366 and 376 of the IPC.
It was specifically denied that they had any sexual intercourse. Original accused No. 2 in his further statement recorded under Section 313 of the Code of Criminal Procedure denied having committed the offence as alleged, more particularly, abating original accused No. 1 in committing the offence under Sections 363, 366 and 376 of the IPC. Thereafter, on appreciation of evidence, the learned trial Court has observed and held that the prosecution has failed to prove that there was any sexual intercourse by original accused No. 1. However, has observed and held on appreciation of evidence that there was an attempt by original accused No. 1 in committing the offence under Section 376 of the IPC, more particularly, to have sexual intercourse with the prosecutrix, who at the relevant time was minor i.e. 14 years and 8 months and, therefore, by the impugned judgment and order the learned trial Court has convicted original accused No. 1 for the offences punishable under Section 376 and 511 of the IPC and has imposed the sentence of 3½ years for the offence punishable under Section 376 read with 511 of the IPC, however has acquitted original accused No. 1 for the offence punishable under Sections 363 and 366 of the IPC. The learned trial Court on appreciation of evidence has also acquitted original accused No. 2 from all the charges for which he was tried by the learned trial Court. 3.5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, State as well as original accused have preferred the present Appeals. Criminal Appeal No. 1723 of 2008 4.0. Shri Sunil Joshi, learned advocate for the original accused No. 1 has vehemently submitted that learned trial Court has materially erred in convicting the original accused No. 1 for the offences punishable under Section 376 r/w Section 511 of the Indian Penal Code. 4.1. It is further submitted that the learned trial Court has materially and grossly erred in holding that the original accused No. 1 was guilty of offences of attempt to commit rape. It is submitted that in the facts and circumstances of the case learned trial Court has materially erred in relying upon the deposition of prosecutrix.
4.1. It is further submitted that the learned trial Court has materially and grossly erred in holding that the original accused No. 1 was guilty of offences of attempt to commit rape. It is submitted that in the facts and circumstances of the case learned trial Court has materially erred in relying upon the deposition of prosecutrix. It is submitted that looking to the conduct of the prosecutrix and even her statement before the police, the learned trial Court ought to have discarded the deposition of the prosecutrix on the ground that she is not reliable and/or trustworthy. 4.2. It is further submitted that the learned trial Court ought to have appreciated that though the father of the prosecutrix was aware that her daughter is missing, no efforts were made by him immediately to trace out and/or search out and/or search the prosecutrix and thereafter even the prosecutrix was found by the maternal uncle of the prosecutrix from the road side hotel at Dantali. It is submitted that, therefore, as such the learned trial Court ought to have believed and/or accept the defence of the accused that prosecutrix went with the accused No. 1 with the consent of the parents. It is therefore, submitted that in absence of any cogent medical evidence which suggest that there was an attempt made by the original accused No. 1 to commit the rape, the learned trial Court has materially erred in convicting the original accused No. 1 for the offences punishable under Section 376 r/w Section 511 of the Indian Penal Code. 4.3. It is further submitted by Shri Joshi, learned advocate for the original accused No. 1 that even it was not the case of the prosecutrix/victim that the original accused No. 1 attempted to commit the rape on her. It is submitted that therefore, the findings recorded by the learned trial Court that original accused No. 1 tried to commit the rape on the prosecutrix and consequently convicting the original accused No. 1 for the offences punishable under Sections 376 r/w 511 of the Indian Penal Code, cannot be sustained and same deserve to be quashed and set aside. 4.4.
4.4. It is further submitted by Shri Joshi, learned advocate for the original accused No. 1 that the learned trial Court has not properly appreciated the fact that alleged incident has taken place on 21.08.2006 and same came to the knowledge of the complainant-father on the very day, but still however FIR came to be lodged belatedly on 25.08.2006 and no reasonable explanation regarding delay of 4 to 5 days in lodging the FIR is established by the prosecution. 4.5. It is further submitted by Shri Joshi, learned advocate for the original accused No. 1 that the learned trial Court has not properly appreciated the fact that the FIR was lodged on 25.08.2006 and 27.08.2006 the relative of the complainant straightway left for Nadiad and Dantali for searching victim as if they knew the whereabouts of the victim and from the said place they found the victim. It is submitted that even the complainant also did not think it fit to inform the police about the location of the victim. It is submitted that aforesaid conduct on the part of the complainant substantiates the defence of the accused that the complainant himself sent her daughter to the aforesaid places and the accused persons are falsely implicated. 4.6. Shri Joshi, learned advocate for the original accused No. 1 has relied upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan v. Babu Meena reported in AIR 2013 SC 2207 in support of his above submission that though in the rape cases conviction solely on testimony of prosecutrix is sustainable, however if it creates doubt about the credibility of the prosecutrix, in that case, the prosecution case is required to be corroborated by other evidence. It is submitted that even in the aforesaid decision, it is observed and held by the Hon'ble Supreme Court that even the presence of semen on the undergarment of the accused as also on the petticoat and Sarri of the prosecutrix not sufficient by itself to prove the offence though may cause some suspicious on the conduct of the accused. It is submitted that in such circumstances, the accused is entitled to benefit of doubt. 4.7.
It is submitted that in such circumstances, the accused is entitled to benefit of doubt. 4.7. Shri Joshi, learned advocate for the original accused No. 1 has further relied upon the decision of the Hon'ble Supreme Court in the case of V.V.S Rama Sharma and Ors v. State of U.P & ors reported in AIR 2009 SC 3258 and has submitted that as held and observed by the Hon'ble Supreme Court the evidence of the prosecutrix must be examined as that of the injured witness whose presence at the spot is probable but it can never be presumed that her statement, without examination, it taken as gospel truth. It is submitted that in the present case looking to the conduct of the prosecutrix and even the parents of the prosecutrix, it is not safe to rely upon the sole testimony of the prosecutrix, more particularly, and according to the case of the prosecution the prosecutrix was taken by the accused from one place to another place and at no point of time the prosecutrix resisted and/or even shouted for the help. It is submitted that the aforesaid is required to be viewed from another angle also i.e. the prosecutrix and the parents of the prosecutrix were known to each other and the original accused No. 1 used to go to the place of the parents of the prosecutrix/prosecutrix and even they used to go out. It is submitted that therefore, the learned trial Court ought to have accepted the defence of the accused that prosecutrix was in love with the accused No. 1 and they both ran away with the consent of the parent of the prosecutrix. 4.8. In support of his above submission, Shri Joshi, learned advocate for the original accused has also relied upon the decision of the Hon'ble Supreme Court in the case of Aman Kumar and Another v. State of Haryana reported in (2004) 4 SCC 379 in support of his submission that as held by the Hon'ble Supreme Court in the said decision, to make out a case for the offence under Section 376 of the Indian Penal Code and proof thereof penetration is sine qua known for the said offence.
It is submitted that so far as present case is concerned, as such the learned trial Court has not believed the case under Section 376 of the Indian Penal Code, however has convicted the original accused No. 1 for the offence under Section 376 r/w Section 511 of the Indian Penal Code i.e. attempt to commit rape and as such no appeal has been preferred by the State challenging the acquittal of the original accused No. 1 for the offence punishable under Sections 376, 363 and 366 of the Indian Penal Code. Therefore, he has submitted that he is making any further submissions on merits i.e. whether original accused No. 1 has committed the offence under Sections 363, 366 and 376 of the Indian Penal Code or not. Making above submissions and relying upon the above decisions, it is vehemently submitted by Shri Joshi, learned advocate for the original accused No. 1 that learned trial Court has materially erred in convicting the original accused No. 1 for the offences punishable under Sections 376 r/w Section 511 of the Indian Penal Code. 5.0. Present appeal is vehemently opposed by Shri K.P. Raval, learned Additional Public Prosecutor for the respondent State. It is submitted that as such in the present case and looking to the evidence on record, more particularly, deposition of the prosecutrix, the learned trial Court ought to have convicted the original accused No. 1 for the offence under Section 376 of the Indian Penal Code as well as for the offences punishable under Sections 363 and 366 of the Indian Penal Code. 5.1. It is submitted that the defence of the original accused No. 1 seems to be a case of consent by the prosecutrix as well as parents of the prosecutrix. It is submitted that however looking to the entire evidence on record, more particularly, deposition of the prosecutrix as well as original complainant the defence has failed to substantiate the defence. It is submitted that merely because original accused No. 1 and the prosecutrix and her parents were known to each other and/or were going out by that itself it cannot be said that the original accused No. 1 ran away with the prosecutrix with the consent of the parents. 5.2.
It is submitted that merely because original accused No. 1 and the prosecutrix and her parents were known to each other and/or were going out by that itself it cannot be said that the original accused No. 1 ran away with the prosecutrix with the consent of the parents. 5.2. It is submitted that as such the prosecutrix has specifically narrated the entire case and the accused having sexual intercourse with the prosecutrix at two places, one at the place of original accused No. 2 Mustak Ali at Dantali, which has been fully supported and corroborated by the medical evidence. It is submitted that therefore, as such no error has been committed by the learned trial Court in considering/relying upon the deposition of the prosecutrix as the same is reliable and trustworthy. 5.3. In the alternative, it is submitted that even if case of the defence is accepted that there was a consent of the prosecutrix, in that case also, looking to the age of the prosecutrix who at the time of committing the offence was 14 years and 8 months, the consent of the prosecutrix was irrelevant and therefore, it cannot be said that irrespective of consent the accused has not committed the offence under Section 376 of the Indian Penal Code. In support of his above submissions, he has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Satish Kumar Jayantilal Dabgar v. State of Gujarat reported in (2015) 7 SCC 359 . 5.4. It is further submitted by Shri Raval, learned Additional Public Prosecutor appearing on behalf of the State that even in the case of Aman Kumar (supra) the Hon'ble Supreme Court has observed and held that to make out a case for the offence under Section 376 of the Indian Penal Code, complete penetration with emission of semen and rupture of hymen not necessary. It is submitted that even a slight penetration in vulva with or without violation is sufficient. It is submitted that in the aforesaid decision, it is observed and held that depth of penetration is immaterial. It is submitted that therefore, even in the present case, the case for the offence under Section 376 of the Indian Penal Code has been made out.
It is submitted that in the aforesaid decision, it is observed and held that depth of penetration is immaterial. It is submitted that therefore, even in the present case, the case for the offence under Section 376 of the Indian Penal Code has been made out. However, has fairly conceded before the Court that in the present case unfortunately State has not preferred any appeal against the acquittal of original accused No. 1 for the offences under Sections 363, 366 and 376 of the Indian Penal Code. Making above submissions and relying upon the above decisions, it is requested to dismiss the Criminal Appeal No. 1723 of 2008 preferred by the original accused No. 1. Criminal Appeal No. 1796 of 2008 6.0. Present Criminal Appeal No. 1796 of 2008 has been preferred by the State Government to enhance the sentence imposed by the learned trial Court, imposed while convicting the original accused for the offence under Sections 376 r/w 511 of the Indian Penal Code of the Indian Penal Code. 6.1. It is vehemently submitted by Shri Raval, learned Additional Public Prosecutor for the State that without prejudice to his rights and contentions in Criminal Appeal No. 1723 of 2008 that in the facts and circumstances of the case the learned trial Court has committed a grave error in imposing sentence of only three years and six months while convicting the original accused No. 1 for the offences punishable under Sections 376 r/w 511 of the Indian Penal Code. 6.2. It is submitted that the manner in which the original accused No. 1 committed the offence and that too with prosecutrix who at the time of aged only 14 years and 8 months and looking to the maximum punishment/sentence provided under Section 376 of the Indian Penal Code, the learned trial Court ought to have awarded the sentence of 5 years i.e. 1/2 of the maximum sentence provided under Section 376 of the Indian Penal Code. In support of his above submissions, he has relied upon the decision of the Hon'ble Supreme in the case of Guddu Alias Santosh v. State of Madhya Pradesh reported in (2009) 1 SCC (Cri) 911.
In support of his above submissions, he has relied upon the decision of the Hon'ble Supreme in the case of Guddu Alias Santosh v. State of Madhya Pradesh reported in (2009) 1 SCC (Cri) 911. Making above submissions and relying upon the above decisions, it is requested to allow the present appeal and to enhance to the sentence imposed by the learned trial Court, imposed while convicting the original accused No. 1 for the offence punishable under Sections 376 r/w 511 of the Indian Penal Code. 7.0. Present appeal is opposed by Shri Joshi, learned advocate for the original accused No. 1. 7.1. Without prejudice to his rights and contentions in Criminal Appeal No. 1723 of 2008 which has been preferred by the original accused No. 1, against the impugned judgment and order of conviction passed by the learned trial Court, it is vehemently submitted by Shri Joshi, learned advocate for the accused No. 1 that in the facts and circumstances of the case, more particularly, the conduct of the prosecutrix as well as the parents of the prosecutrix and the evidence on record that the prosecutrix was in love with the original accused No. 1 and that she wanted to marry with the original accused No. 1, however as both were from different sub-caste, marriage was not possible and therefore, prosecutrix ran away with the original accused No. 1 with the consent of the parents of the prosecutrix, it cannot be said that imposing sentence of three years and six months can be said to be disproportionate to the offence committed by the original accused No. 1. It is submitted that imposing sentence of three years and six months for the offence punishable under Sections 376 r/w 511 of the Indian Penal Code, in the facts and circumstances of the case, cannot be said to be so disproportionate, which calls for the interference of this Court in exercise of appellate jurisdiction. 7.2. Shri Joshi, learned advocate for the original accused No. 1 has submitted that even Section 511 of the Indian Penal Code provides the sentence to the extent of one half of sentence provided in the main Section/offence. It is submitted that therefore, it does not necessary mean that maximum sentence which can be imposed would be 50% of the sentence provided for main offence.
It is submitted that therefore, it does not necessary mean that maximum sentence which can be imposed would be 50% of the sentence provided for main offence. It is submitted that therefore, the learned trial Court has exercised the discretion judiciously while imposing the sentence of three years and six months while convicting the original accused No. 1 for the offence under Sections 376 r/w 511 of the Indian Penal Code, the same is not required to be interfered with by this Court. Making above submissions, it is requested to dismiss the present appeal. Criminal Appeal No. 1804 of 2008 8.0. Present Appeal is preferred by the State against the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused No. 2 for the offences under Sections 363, 366, 376 and 114 of the Indian Penal Code. 8.1. Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the original accused No. 2 for the aforesaid offences. 8.2. It is submitted by Shri K.P. Raval, learned Additional Public Prosecution for the State that in the present case the prosecution has been successful in proving and establishing that the prosecutrix and the original accused No. 1 stayed in the house of original accused No. 2 and that even as per the case of the prosecutrix the original accused No. 1 had sexual intercourse with the prosecutrix at the house of the original accused No. 2 at Dantali and thereby he abetted original accused No. 1 in committing the offence under Sections 363, 366 and 376 of the Indian Penal Code and thereby committing offence under Section 368 of the Indian Penal Code, the learned trial Court ought to have convicted original accused No. 2 also for offences punishable under Sections 363, 366, 376 r/w Section 511 of the Indian Penal Code. Making above submissions and relying upon the deposition of the prosecutrix, it is requested to quash and set aside the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused No. 2 and consequently to convict the original accused No. 2 for the aforesaid offences. 9.0. Present appeal is opposed by Shri Saiyed, learned advocate for the original accused No. 2.
9.0. Present appeal is opposed by Shri Saiyed, learned advocate for the original accused No. 2. It is vehemently submitted by Shri Saiyed, learned advocate for the original accused No. 2 that in the facts and circumstances of the case, more particularly, when on appreciation of evidence the learned trial Court has specifically observed and held that the prosecutrix has failed to make out a case against the original accused No. 2 with respect to abetment, if any, by the original accused No. 2, the learned trial Court has rightly acquitted the original No. 2. It is further submitted that as such there is no evidence on record at all that original accused No. 2 abetted the original accused No. 1 in committing the offence under Sections 363 and 366 of the Indian Penal Code. It is further submitted that even it cannot be said that the original accused No. 2 abetted the original accused No. 1 in committing the offence under Section 376 of the Indian Penal Code. It is submitted that prosecution has not established and proved that the original accused No. 2 in any manner abetted the original accused No. 1 in committing the offence under Section 376 of the Indian Penal Code and/or the prosecution has established and proved beyond the doubt that the original accused No. 2 had no knowledge and/or intention to abet the original accused No. 1 in committing the offence under Sections 363, 366 and 376 of the Indian Penal Code. 9.1. It is further submitted that therefore, when the findings recorded by the learned trial Court while acquitting the original accused No. 2 are on appreciation of evidence and it cannot be said to be perverse and/or contrary to the evidence on record, it is requested not to interfere with the impugned judgment and order of acquittal while exercising the appellate jurisdiction. Making above submissions, it is requested to dismiss the present Criminal Appeal preferred by the State. 10. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that by impugned judgment and order the learned trial Court has convicted the original accused No. 1 for the offences punishable under Sections 376 r/w 511 of the Indian Penal Code and as such acquitted the original accused No. 1 for the offences punishable under Section 376 of the Indian Penal Code.
By impugned judgment and order the learned trial Court has also acquitted the original accused No. 1 for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. That by impugned judgment and order the learned trial Court has imposed the sentence of three and half years while convicting the original accused No. 1 for the offences punishable under Sections 376 r/w 511 of the Indian Penal Code. That by impugned judgment and order the learned trial Court acquitted the original accused No. 2 for the offences punishable under Sections 363, 366, 376, 368 and 114 of the Indian Penal Code. 11. Having heard the learned advocates for the respective parties and even considering the evidence on record and even the defence of the original accused No. 1 so stated by him in his further statement under Section 313 of the Code of Criminal Procedure, it was the case on behalf of the original accused No. 1 that prosecutrix ran away with the original accused No. 1 with her consent and/or with the consent of guardian - her parents. However, at this stage, it is required to be noted that prosecutrix admittedly at the time of commission of offence/incident was aged about 14 years and 8 months only. As observed and held by the Hon'ble Supreme Court in the case of Satish Kumar Jayantilal Dabgar (supra) in case of prosecutrix less than 16 years of age, consent for sexual intercourse is immaterial and inconsequential. Clause sixthly of Section 375 of Indian Penal Code would get attracted making her consent for sexual intercourse as immaterial and inconsequential. In para 14 to 16 the Hon'ble Supreme Court has observed and held as under: "14) First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the Indian Penal Code would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows: "375. Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-- Sixthly - With or without her consent, when she is under sixteen years of age.
It reads as follows: "375. Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-- Sixthly - With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 15) The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. 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. 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. 16) Once we put the things in right perspective in the manner stated above, we have to treat it a case where the appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences.
Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act." Under the circumstances, even if the defence of the original accused No. 1 is believed, in that case also, looking to the age of the prosecutrix i.e. 14 years and 8 months, in that case also, it cannot be said that even if there was a consent of the prosecutrix, offence under Section 375 of the Indian Penal Code is not made out. 12. However, from the evidence on record, more particularly, deposition of prosecutrix it cannot be believed that merely because the original accused No. 1 was known to prosecutrix and her parents and/or they used to go out, more particularly, to Ahmedabad in Car of original accused No. 1 by that itself it cannot be said that there was any consent of prosecutrix as well as parents of the prosecutrix. 13. From the deposition of the prosecutrix, the prosecution has been successful in proving the case against the original accused No. 1 that the original accused No. 1 had sexual intercourse twice at the place of original accused No. 2 at Dantali where the original accused No. 1 and the prosecutrix took shelter. Even the case of the prosecutrix that the original accused No. 1 had sexual intercourse with her at Dantali is corroborated by the medical evidence. Even from the deposition of the prosecutrix, it has come on record that there was penetration. However, unfortunately the State has not preferred any appeal acquitting the original accused No. 1 for the offences punishable under Section 376 of the Indian Penal Code. Even it has come on record that the prosecutrix was at the relevant time aged 14 years and 8 months was taken away from the custody of the guardian against the consent of the parents/guardian and therefore, ingredients of Sections 363 and 366 are made out. However, again it is required to be noted that the State has not preferred any appeal against the order of acquittal acquitting the original accused No. 1 for the offence punishable under Section 363 and 366 of the Indian Penal Code.
However, again it is required to be noted that the State has not preferred any appeal against the order of acquittal acquitting the original accused No. 1 for the offence punishable under Section 363 and 366 of the Indian Penal Code. Under the circumstances and considering the deposition of the prosecutrix and medical evidence and the deposition of the Doctor when the learned trial Court has convicted the original accused No. 1 for the offences punishable under Sections 376/511 of the Indian Penal Code, it cannot be said that the learned trial Court has committed any error. 14. The contention on behalf of the original accused No. 1 in support of his case that as the incident occurred on 21.08.2006 and the FIR was filed on 25.08.2006 and in the meantime no efforts were made by the parents and therefore, to presume that there was a consent by the parents and/or with the consent of the parents, prosecutrix ran away with the original accused No. 1 is concerned, from the entire evidence on record it has come on record that for all these days, not only parents but even other family members were also trying to find out and/or searching the prosecutrix and original accused No. 1. It has come on record that wherever there was a possibility of original accused No. 1 and his relative, the parents and the relatives of the parents of the prosecutrix had gone and ultimately having failed to trace out the prosecutrix, FIR came to be lodged on 25.08.2006. Therefore, it cannot be said that no steps and/or efforts were made by the parents to find out and/or trace out the prosecutrix and/or original accused No. 1 Under the circumstances, when initially the offence alleged was under Sections 363 and 366 of the Indian Penal Code and all the family members initially tried to trace out and/or find out the original accused No. 1 and the prosecutrix and thereafter having failed the FIR came to be lodged, it cannot be said that there was any delay which would be fatal to the case of the prosecution. 14.1.
14.1. Even the contention on behalf of the accused that straightway the maternal uncle of the prosecutrix went to the Nadiad/Dantali, as if the place where the prosecutrix was kept, was known to them is concerned, it is required to be noted and it has come on record that all of them even tried to find out and/or trace out and/or search the original accused No. 1 and prosecutrix from all the places where the relatives of the original accused No. 1 were staying and/or residing and thereafter they reached the Nadiad and thereafter while searching or tracing out they went to Dantali and at Dantali they show the photograph of the original accused No. 1 and prosecutrix to one Maulavi at Dantali and said Maulavi told the maternal uncle that both accused No. 1 and prosecutrix are at the same village and that is how the maternal uncle of the prosecutrix could find out and/or trace out the original accused No. 1 and prosecutrix from Dantali. It has also come on record that having come to know that maternal uncle and one another had reached Dantali, immediately prosecutrix left at the hotel at Dantali from where the custody of the prosecutrix was taken by the maternal uncle. Under the circumstances, it cannot be said that the place where the prosecutrix was kept at Dantali was known to parents of the prosecutrix and/or her relatives. There is no reason to doubt the case of the prosecution so far as aforesaid aspect is concerned. Under the circumstances and in the facts and circumstances of the case, the impugned judgment and order of conviction convicting the original accused No. 1 for the offences punishable under Sections 376 r/w 511 of the Indian Penal Code cannot be said to be erroneous and therefore, the same is not required to be interfered with by this Court. Consequently the impugned judgment and order passed by the learned trial Court convicting the original accused No. 1 for the offence punishable under Sections 376 r/w 511 of the Indian Penal Code is hereby confirmed and consequently Criminal Appeal No. 1723 of 2006 preferred by the original accused No. 1 deserves to be dismissed and is accordingly dismissed. 15.
Consequently the impugned judgment and order passed by the learned trial Court convicting the original accused No. 1 for the offence punishable under Sections 376 r/w 511 of the Indian Penal Code is hereby confirmed and consequently Criminal Appeal No. 1723 of 2006 preferred by the original accused No. 1 deserves to be dismissed and is accordingly dismissed. 15. Now, that takes us to the Criminal Appeal No. 1796 of 2008 preferred by the State to enhance the sentence imposed by the learned trial Court, imposed while convicting the original accused No. 1 for the offences punishable under Sections 376 r/w 511 of the Indian Penal Code. 16. It is required to be noted that by impugned judgment and order, while convicting the original accused No. 1 for the offence under Sections 376 r/w 511 of the Indian Penal Code, the learned trial Court has imposed the sentence of only three years and six months with a fine of Rs. 10,000/- and in default to undergo further six months SI. However, it is required to be noted that at the time of committing the offence/incident the prosecutrix was aged only 14 years and 8 months. She was having hole in the valve. The aforesaid ailment of the prosecutrix who was aged 14 years and 8 months was known to the original accused No. 1. From the version of the original accused No. 1, he and prosecutrix wanted to marry. Thus, false hope and promise was given to the prosecutrix who was aged 14 years and 8 months suffering from heart disease. Thus, as such original accused No. 1 misused the position of the prosecutrix and her ailment. Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of Guddu Alias Santosh (supra) and awarding sentence of only three years and six months with fine of Rs. 10,000/- can be said to be disproportionate to the offence committed by the original accused No. 1.
Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of Guddu Alias Santosh (supra) and awarding sentence of only three years and six months with fine of Rs. 10,000/- can be said to be disproportionate to the offence committed by the original accused No. 1. In the facts and circumstances of the case narrated herein above and the fact that prosecutrix was aged only 14 years and 8 months and suffering from heart ailment, more particularly, she was having hole in the valve, we are of the opinion that if the 50% of the maximum sentence provided under Section 376 of the Indian Penal Code i.e. 1/2 of 10 years i.e. 5 years RI is imposed, the same would meet the ends of justice and same can be said to be proportionate to the offence committed by the original accused No. 1. To the aforesaid extent, Criminal Appeal No. 1796 of 2008 preferred by the State to enhance the sentence imposed by the learned trial Court deserves to be allowed. 17. That takes us to the appeal preferred by the State challenging the impugned judgment and order of acquittal passed by the learned trial Court acquitting original accused No. 2 for the offences punishable under Sections 363, 366, 368, 376r/w 114 of the Indian Penal Code. It is required to be noted that as such the main allegation against the original No. 2 was of abetment. Even the original accused No. 2 was also charged for the offence under Sections 363, 366, 368, 376 r/w114 of the Indian Penal Code. Considering the evidence on record, more particularly, even taking the case of the prosecution as it is, it cannot be said that the prosecution has been successful in proving that there was any abetment by the original accused No. 2 in committing the offence by the original accused No. 1 for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. The prosecution has as such failed to prove that the original accused No. 2 was having any knowledge. Even considering the evidence on record, ingredients of Sections 107 r/w 108 are not even alleged or make out by the prosecution. Sections 107 and 108 of the Indian Penal Code read as under: "107.
The prosecution has as such failed to prove that the original accused No. 2 was having any knowledge. Even considering the evidence on record, ingredients of Sections 107 r/w 108 are not even alleged or make out by the prosecution. Sections 107 and 108 of the Indian Penal Code read as under: "107. Abetment of a thing.--A person abets the doing of a thing, who-(First) - Instigates any person to do that thing; or (Secondly) -Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. 108. Abettor.--A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1.--The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2. -To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Illustrations (a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
Explanation 2. -To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Illustrations (a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. (b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder. Explanation 3.--It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Illustrations (a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence. (b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z's death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death. (c) A instigates B to set fire to a dwelling-house, B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A's instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment, provided for that offence. (d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in good faith, believing it to be A's property.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in good faith, believing it to be A's property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft. Explanation 4.--The abetment of an offence being an offence, the abetment of such an abetment is also as offence. Illustration A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment. Explanation 5.--It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Illustration A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder." 17.1. From the evidence on record, it cannot be said that the prosecution has been successful in proving that there was any instigation by the original accused No. 2 to the original accused No. 1 to commit the offence and/or provoke and/or even intentionally aided accused No. 1 in committing the offence.
From the evidence on record, it cannot be said that the prosecution has been successful in proving that there was any instigation by the original accused No. 2 to the original accused No. 1 to commit the offence and/or provoke and/or even intentionally aided accused No. 1 in committing the offence. Under the circumstances, no ingredients of Section 107of the Indian Penal Code are not satisfied and/or fulfilled, it cannot be said that the original accused No. 2 had abetted original accused No. 1 and thereby committing the offence under Sections 363, 366, 368, 376 r/w 114 of the Indian Penal Code. Under the circumstances, as such no error has been committed by the learned trial Court in acquitting the original accused No. 2. It is required to be noted that this is an appeal against the order of acquittal by the learned trial Court. As held by the Hon'ble Supreme Court and this Court in catena of decisions even on re-appreciation of evidence the Appellate Court finds that two views are possible and trial has taken one view, in that case also, if the view taken by the trial plausible, the Appellate Court is not justified in interfering with the order of acquittal passed by the learned trial Court. Under the circumstances also, no interference of this Court in exercise of appellate jurisdiction against the impugned judgment and order of acquittal acquitting the original accused No. 2 is called for. Under the circumstances, Criminal Appeal preferred by the State deserves to be dismissed and is accordingly dismissed. 18. In view of the above and for the reasons stated above, Criminal Appeal No. 1723 of 2008 preferred by the original accused No. 1 deserves to be dismissed and is accordingly dismissed by confirming the judgment and order of conviction passed by the learned trial Court convicting the original accused No. 1 for the offences punishable under Section 376 r/w Section 511 of the Indian Penal Code. 18.1.
18.1. In view of the above and for the reasons stated above, Criminal Appeal No. 1796 of 2008 preferred by the State to enhance the sentence imposed by the learned trial Court, imposed while convicting original accused No. 1 for the offences punishable under Section 376 r/w Section 511 of the Indian Penal Code is hereby partly allowed and original accused No. 1 is sentenced to undergo 5 years RI and the fine imposed by the learned trial Court is maintained. The original accused No. 1 is granted four weeks time to surrender to the jail authority to undergo remaining sentence. It goes without saying that whatever sentence already undergone by the original accused No. 1 shall be entitled to set off. 18.2. In view of the above and for the reasons stated above, Criminal Appeal No. 1804 of 2008 preferred by the State against the impugned judgment and order of acquittal acquitting the original accused No. 2 is hereby dismissed.