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Gujarat High Court · body

2016 DIGILAW 1681 (GUJ)

Yogeshbhai Rameshbhai Puntiya v. State of Gujarat

2016-08-08

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. Present appeal assails the judgment and order dated 07/10/2014, passed by the learned Special Judge (POCSO), Amreli, in Special (POCSO) Case No. 02 of 2014, whereby, while acquitting present appellant-original accused for the offence punishable under Sections366 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (for brevity, 'the POCSO'), he came to be convicted for the offences punishable under Sections 363 and 376 of the IPC and for the offence punishable under Section 363 of the IPC, he was sentenced to undergo rigorous imprisonment (RI) for three years and a fine of Rs. 1,000/- and in default of payment of fine, to undergo, further simple imprisonment (SI) for one month, whereas, for the offence punishable under Section 376 of the IPC, to undergo RI for seven years and a fine of Rs. 3,000/- and in default of payment of fine, to undergo, further SI for three months. Out of the fine, Rs. 2,500/- were ordered to be paid to the victim. The sentences were to run concurrently besides, giving benefit of set off. 2. Filtering the unnecessary details the facts of the prosecution case are that on 11/12/2013 at about 9:30 p.m., the appellant herein - original accused allegedly kidnapped the minor daughter of the complainant, aged about 15 years, from his lawful guardianship, with a view to marry her, knowing well that the prosecutrix was a minor, and thereafter, committed rape on her. Thus, the appellant - accused committed the alleged offence punishable under Sections 363, 366 and 376 of the IPC and Sections 4 and 8 of the POCSO for which, a complaint came to be lodged against him. For the sake of convenience, the parties herein are, hereinafter, referred to as per their original status. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by a Special Court, it was committed to the Special Court at Amreli. The trial Court framed charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. The trial Court framed charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S/no. Name of Witness Exh. 1. PW-1 Hareshbhai Nanubhai Punatiya 7 2. PW-2 Bhavnaben Hareshbhai Punatiya 9 3. PW-3 Vaishaliben Hareshbhai Punatiya 12 4. PW-4 Dr. Akhileshkumar Jamadarbhai Sihni 13 5. PW-5 Dilipsinh Mahobatsinh Tank 31 6. PW-6 Manojkumar Babarbhai Patel 32 7. PW-7 Rajnish Pravinkant Gautam (IO) 36 8. PW-8 Amitbhai Jerambhai Sukhwani 41 9. PW-9 Bharatbhai Kanjibhai Mevada 43 10. PW-10 Hareshbhai Amrutlal Rathod 45 11. PW-11 Shaileshbhai Kantibhai Rathod 46 12. PW-12 Hamirbhai Govindbhai Chavda 47 13. PW-13 Vishal Vashrambhai Vagadiya 49 DOCUMENTARY EVIDENCE S/n. Document Exh. 1. Complaint 8 2. Yadi as to medical examination of the victim 14 3. OPD case of the victim 15 4. Consent letter of the victim before physical examination 16 5. Pregnancy kit 17 6. Medical Certificate 29 7. Medical Certificate 30 8. Yadi as to calling for Birth Certificate of the victim 33 9. Birth Certificate of the victim 34 10. Copy of extract of Birth Register qua victim 35 11. Yadi to MO for physical examination of the victim 37 12. Yadi for physical examination of the accused 38 13. Letter of Circle Police Inspector to the Dy. Director, FSL, Junagadh together with authority certificate issued by the Dy. S.P., Amreli Division 39 14. Yadi to Ld. JMFC for addition of Section 376 IPC 40 15. Seizure panchnama of the clothes of the victim and the accused 42 16. Panchnama of place of offence 44 17. Seizure Panchnama of muddamal 48 18. Office copy of the yadi as to examination of the victim 50 19. Report as to assigning to investigation to the CPI 51 20. Report of CPI as to addition of offence under POCSO 52 21. Yadi to SP for call details 53 22. Birth Certificate of the victim 54 23. Leaving Certificate of the victim 55 24. Yadi of FSL 56 25. Yadi of CPI to Dy. Report as to assigning to investigation to the CPI 51 20. Report of CPI as to addition of offence under POCSO 52 21. Yadi to SP for call details 53 22. Birth Certificate of the victim 54 23. Leaving Certificate of the victim 55 24. Yadi of FSL 56 25. Yadi of CPI to Dy. SP, Amreli 57 2.2 At the end of the trial, after recording the Further Statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard Mr. Kaivan K. Patel, the learned advocate for the appellant - accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent - State. 3.1 Mr. Patel, the learned advocate for the accused submitted that the trial Court has committed a grave error in convicting the accused; the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the accused. He took this Court through the oral as well as the entire documentary evidence on record, more particularly, the deposition of PW-1 Hareshbhai Nanubhai Punatiya, the complainant and father of the victim, Exh. 7 and the complaint dated 17/12/2013, lodged by him, Exh. 8 and submitted that, there appears contrary versions in the same as in the complaint at Exh. 8, which is dated 17/12/2013, it has been stated by the complainant that the victim and the accused were in love and accordingly, on the day of incident, when she went outside the home to throw the garbage and did not return, he made search at the house of the accused as to whether the accused was present or not and the said version has also supported by the evidence of PW-4 Akhilesh kumar Jamadarbhai at Exh. 13 before whom the victim had stated regarding her love affair and disclosed the real facts and also admitted that she had gone willingly and the accused had not committed rape on her. 13 before whom the victim had stated regarding her love affair and disclosed the real facts and also admitted that she had gone willingly and the accused had not committed rape on her. He, then, submitted that so far as the age of the victim is concerned, no cogent evidence has been forthcoming on record and in the cross-examination, the father has admitted that out of four children, the births of three had taken place at village: Babra, whereas, the fourth child had born at village: Chhabhadiya that is to say the victim had born at village: Babra. He, then drew attention of this Court on the document at Exh. 34, which is the Birth Certificate of the victim, issued by the Talati-cum-Mantri, in which, the place of birth of the victim is shown as Chhabhadiya, which creates doubt as to veracity of the evidence on record and accordingly, the benefit of doubt should be given to the appellant - accused. He has then submitted that the incident alleged to have been occurred on 11/12/2013, however, the complaint had been lodged on 17/12/2013 i.e. almost after a week and for the said delay, no genuine and convincing explanation has been forthcoming on record and hence, considering the above aspects, as the victim was in love with the appellant, which has been proved by her evidence and her conduct that in spite of the fact that she had remained outside for about one months with the appellant - accused, she had not even tried to contact the police and/or to make any shouts for help and inform others regarding the alleged abduction or kidnapping by the appellant - accused, which speaks a volume, the appellant - accused deserves benefit of doubt. Making above submissions, he requested to allow the present appeal, quashing and setting aside the impugned judgment and order. 4. On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. He mainly submitted that referring to the documents at exhs. 34 and 35, which are the Birth Certificate of the victim and the extract of Birth Register, respectively, the birth date of the victim is mentioned to be 11/04/1998 and accordingly, the age of the victim is duly proved to be minor. The learned Additional Public Prosecutor further inviting attention of the Court to Section 375(c) of the IPC, sixthly, submitted that, provisions of this section would be applied as all the ingredients of the same are proved and in any case, the age of the victim is proved to be below 18 years and accordingly, there is no question of granting the benefit of doubt to the accused. Making above submissions, he requested to dismiss the present appeal as having no merits. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. 5.1 On going through the deposition of the victim at Exh. 12, it appears that she has fully supported the case of the prosecution and has narrated that, on the day of the incident, all the family members were there in the house and after washing the utensils she went outside the home to throw the garbage and taking benefit of the darkness, the accused had lifted her on his two wheeler and took her to his relative's house at Khambha and then Jesar and also raped her twice or thrice. Thus, from the deposition of the victim, there appears no case of consent and/or love affair between the victim and accused. On complete reading of the evidence of the victim, it appears that she has supported the case of the prosecution in toto and there appears no contradictions in the complaint at Exh. 8, deposition of the complainant at Exh. 7 and the deposition of the victim at Exh. 12. Moreover, I have also gone through the document at Exh. On complete reading of the evidence of the victim, it appears that she has supported the case of the prosecution in toto and there appears no contradictions in the complaint at Exh. 8, deposition of the complainant at Exh. 7 and the deposition of the victim at Exh. 12. Moreover, I have also gone through the document at Exh. 34, which is the Birth Certificate of the victim and the extract of Birth Register at Exh. 35, in which, the Birth Date of the victim is mentioned to be 11/04/1998' and accordingly, on the date of incident i.e. 11/12/2013, the age of the victim would be less than 18 years and accordingly, she was minor. Moreover, from the deposition of the doctor, the fact of intercourse is proved as hymen was ruptured. Moreover, from the FSL Serological Report at Exh. 21, it is revealed that the semen of the accused was of 'B' group and on the clothes of the victim also, the semen of 'B' group was found. Accordingly, in the considered opinion of this Court, the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge has rightly considered and evaluated the evidence on record and that, the learned trial Judge has committed no error, which requires interference at the hands of this Court, more particularly, when for the findings and conclusion of conviction and sentence, plausible reasons have been given. Moreover, the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 07/10/2014, passed by the learned Special Judge (POCSO), Amreli, in Special (POCSO) Case No. 02 of 2014, is hereby confirmed. Registry to return the R & P to the trial Court forthwith.