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Gujarat High Court · body

2016 DIGILAW 1790 (GUJ)

Jitendrasinh v. State of Gujarat

2016-08-23

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. Present appeal assails the judgment and order dated 16-06-2012, passed by the learned Additional Sessions Judge, Court No. 7, City Sessions Court, Ahmedabad, in Sessions Case No. 12 of 2010, whereby, while acquitting the original accused Nos. 2 and 3 from all the charges and the present appellant-original accused No. 1 from the charge of offence punishable under Section 376 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), the appellant-original accused No. 1 came to be convicted for the offences punishable under Sections 363 and 366 of the IPC and for the offence punishable under Section 363 of the IPC, he was sentenced to undergo rigorous imprisonment (RI) for one year and six months and fine of Rs. 1,000/- and in default of payment of fine, to undergo further simple imprisonment (SI) for one month and for the offence punishable under Section 366 of the IPC, to undergo RI for two years and fine of Rs. 2,000/- and in default of payment of fine, to undergo further SI for two months. Both the sentences were to run concurrently. For the sake of convenience, the parties are hereinafter referred to as per their original status. 2. Brief facts of the prosecution case are that on 16/06/2007 at about 11:00 hours, the accused, in the aid and abetment of each other, allegedly kidnapped the minor daughter of the complainant, from her lawful guardianship, giving false temptation, knowing it to be likely that she will be forced or seduced to illicit intercourse. The accused No. 1 took her to Basiwada, Rajasthan and allegedly raped her and for the said offence, a complaint for the offences punishable under sections 363, 366 and 376 r/w. 114 of the IPC came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the City Sessions Court at Ahmedabad. The trial Court framed charge against the accused. 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 original accused, the prosecution has examined following witnesses and produced following documentary evidence, as under:- S. No. Name Exhibit ORAL EVIDENCE 1. PW-1 Vimalaben Bhimsinh 10 2. 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 original accused, the prosecution has examined following witnesses and produced following documentary evidence, as under:- S. No. Name Exhibit ORAL EVIDENCE 1. PW-1 Vimalaben Bhimsinh 10 2. PW-2 Ramilaben Shakaraji 11 3. PW-3 Ashaben Kishorsinh Parmar 13 4. PW-4 Kishorsinh Jivatsinh Parmar 15 5. PW-5 Vanrajsinh Shersinh 17 6. PW-6 Dr. Yasmin Husaini 18 7. PW-7 Gitaben Naransinh 23 8. PW-8 Gokalji Gameji 24 9. PW-9 Digvijaysinh B. Rathod 25 10. PW-10 Victim 29 11. PW-11 Vijaysinh Naransinh 31 12. PW-12 R.I. Patel, PI, IO 37 13. PW-13 Dipikaben S. Upadhyaya 50 DOCUMENTARY EVIDENCE 1. Complaint 14 2. Report u/s. 157 to register complaint 41 3. Injury Certificate of the victim 19 4. Police Yadi 20 5. Injury Certificate of the accused 21 6. Police Yadi 22 7. Abstract of general register of Bahedaj Primary School 51 8. Certificate of Bahedaj Primary School 52 9. Abstract of general register of Prakash High School 27 10. School Leaving Certificate – Prakash High School 28 11. Panchnama for seizure of clothes of the prosecutrix 32 12. Panchnama for seizure of clothes of the accused 38 13. Panchnama of the house at Vansvad Khandu Colony 42 14. Muddamal Revangi Note 43 15. Receipt of FSL 44 16. Analysis Report with forwarding letter 45 17. Serology Report 46 2.2 At the end of the trial, Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, 'the Code') were recorded in which they denied the evidence forthcoming on the record and stated that a false case has been filed against them. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard Mr. Shailesh C. Sharma, the learned advocate for the appellant-original accused No. 1 and Mr. K.L. Pandya, the learned Additional Public Prosecutor, for the respondent-State. 3. Heard Mr. Shailesh C. Sharma, the learned advocate for the appellant-original accused No. 1 and Mr. K.L. Pandya, the learned Additional Public Prosecutor, for the respondent-State. 3.1 The learned advocate for the appellant herein - original accused contended that the judgment and order of the Sessions Court is against the provisions of law; the Sessions 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 and thereby, the learned trial Judge has erred in coming to such a conclusion. He took this Court through the oral as well as the entire documentary evidence on record and vehemently submitted that in the instant case, the learned trial Judge has materially erred in holding that at the time of the alleged incident, the victim was a minor in spite of there having sufficient evidence on record to prove the fact that the victim was above the age of 16 years at the time of occurrence of the alleged incident. In this regard, he invited attention of the Court to the documents at Exhs.27, 28, 51 and 52 and contended that from the said documents, the birth date of the prosecutrix is proved to be of 15/06/1990 and accordingly, on the date of alleged incident i.e. 16/06/2007, she was aged more than 16 years i.e. 17 years and one day. He also took this Court through the complaint at Exh.14, which also substantiate the said fact and accordingly, the age of the victim can easily be said to be more than 16 years at the time of incident in question. He, then drew, attention of the Court upon Exh.53, which is the form to be filled up while getting admission in the school and submitted that though birth date of the victim filled in is the same i.e. 15/06/1990, however, the surname of the father of the victim differs i.e. it is mentioned to be 'Jadeja' which, in fact, is 'Parmar' for which, no satisfactory explanation has been coming on record. Accordingly, he submitted that the learned trial Judge has committed error in not considering these aspects in true and proper perspective and has wrongly held that the victim was minor at the time of incident in question, when age is not proved beyond reasonable doubt. 3.2 The learned advocate for the accused further submitted that the learned trial Judge has failed to appreciate the fact of love affair between the accused No. 1 and the prosecutrix and the prosecutrix had willingly stayed with the accused No. 1. Moreover, their marriage had been solemnized in a temple and they had been staying as husband and wife for about one month. The learned advocate for the accused further submitted that as per the deposition of the prosecutrix herself at Exh.29, she was taken by the accused to Rajasthan by bus, however, there is nothing on record to show that the prosecutrix had objected the accused and/or cried or shouted for help. Moreover, no independent witnesses have been examined by the prosecution though available and the witnesses who are examined, are the interested witnesses and solely on the basis of their evidence, conviction imposed by the trial Court should not be upheld. The learned advocate for the accused further submitted that the medical evidence also do not support the case of the prosecution and accordingly, the trial Court has rightly acquitted the accused from the charge of main offence punishable under Section 376 of the IPC, however, has erred in holding guilty for the offences punishable under Sections 363 and 366 of the IPC. Making above submissions, the learned advocate for the accused requested to allow the present appeal as the prosecution has failed to prove its case against the present appellant-accused beyond reasonable doubt and as no ingredients of the said offence have been proved, setting aside the impugned judgment and order. 4. Per contra, Ms. Chandarana, 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. 4. Per contra, Ms. Chandarana, 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 and accordingly, it is requested that this Court should not interfere in appeal. She took the Court through the relevant oral as well as documentary evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order and submitted that considering the aforesaid, it can easily be said that the victim was minor at the time of incident, the accused had kidnapped her and the accused No. 1 had committed rape and for the minor contradictions, the whole case of the prosecution, which is otherwise, proved with cogent and reliable evidence, cannot be discarded. Under the circumstances, the learned trial Judge has rightly convicted the accused, duly evaluating and appreciating the evidence on record, and considering the gravity of the offence, he requested that this Court may not interfere in the appeal and eventually, requested to dismiss the present appeal confirming the impugned judgment and order. 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 It is the fact that for the offence punishable under Section 376 of the IPC, the trial Court has acquitted the present appellant-accused and as such, he has been convicted for the offences punishable under Sections 363 and 366 of the IPC and sentenced, as aforesaid, more particularly, considering the age of the prosecutrix as 17 years and 01 day at the time of the incident. During the course of investigation, the documents at Exhs.51, 52 and 53 have come on record and the date of birth of the prosecutrix as been shown in the same to be 15/06/1990 and accordingly, the trial Court has considered the age of the victim as aforesaid. During the course of investigation, the documents at Exhs.51, 52 and 53 have come on record and the date of birth of the prosecutrix as been shown in the same to be 15/06/1990 and accordingly, the trial Court has considered the age of the victim as aforesaid. In light of the same, further evidence, which has come on record is the deposition of PW-13 Dipikaben S. Upadhyaya at Exh.50, who was the Principal at Bahedaj Primary School. Referring her deposition, it appears that the document at Exh.53 was filled up by the then Principal Ms. Padmaben Joshi and one Taraben Ramanbhai, who was the maternal aunt (masi) of the prosecutrix, had made signature thereunder, who had remained present along with the maternal grand father (nana) of the prosecutrix. They both had remained present when the said document (Exh.53) had been filled up. Though, it has come on record that the name of the father of the prosecutrix was 'Kishorsinh Parmar', the Birth Certificate of the prosecutrix had been issued in the name of 'Kishorsinh Jadeja' for which the explanation given by this witness is that since the surname of maternal grand father (nana) was 'Jadeja' the surname 'Jadeja' was mentioned, so far as the prosecutrix is concerned. The important fact which requires to be considered is, so far as the age of the victim is concerned, it has come on record that the birth was not registered by the complainant anywhere and the age of the prosecutrix had been disclosed by her maternal aunt (masi). It has also been deposed in the cross-examination by PW-13 Dipikaben, Exh.50 while recording birth date of a child, they put reliance on the say of the guardian of the child and accordingly, registered the birth date. She has also admitted that the birth date which was filled in 15/06/1990, no document related to birth was produced and in spite of the said fact, the Investigating Officer had not thought it fit to get the ossification test done of the victim in the aforesaid peculiar circumstances. Thus, the age of the victim is doubtful and appears to be not proved beyond reasonable doubt by the prosecution. Thus, the age of the victim is doubtful and appears to be not proved beyond reasonable doubt by the prosecution. In the circumstances, when in the main offence i.e. under Section 376 of the IPC the appellant - accused has been acquitted by the trial Court and convicted him for the offences punishable under Sections 363 and 366 of the IPC considering the age of the victim less than 18 years i.e. 17 years and 01 day, in my opinion, the learned trial Judge has erred in believing the same as the ingredients of offence punishable under Sections 363 and 366 appear not proved by the prosecution beyond reasonable doubt and accordingly, the appellant - accused is required to be given the benefit of doubt. Moreover, no Ossification Test for ascertaining the age of the victim is stated to have been conducted and in the circumstances, I am of the opinion that the conclusion arrived by the learned trial Judge that the victim was minor at the time of incident, appears to be without any basis. 5.2 At this juncture, a reference to the decision of the Hon'ble Apex Court in the case of Sunil v. State of Haryana, reported in AIR 2010 SC 392 , is required to be made, in which, it is held that, 'in a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date'. Moreover, in the decision in The State of Gujarat v. Jivanlal Chhotalal Patel, reported in 1985 GLH 388 , this Court has held in para 6 that 'the school leaving certificate for the purpose of proving the age in a criminal trial is useless'. The said para, since relevant, it is reproduced hereunder for the reason that in the year 1985, this Court was not satisfied relating to the matter in which the investigating agency had dealt with in regard to the method of investigation in regard to the age and they would have learnt as to how the age is required to be proved and thereafter, whatever it has been narrated in the facts of the said case, the same circumstances, also appear to the present case. In the case on hand also, no efforts appear to have been made by the investigating agency. In the case on hand also, no efforts appear to have been made by the investigating agency. I am of the view that when the surname of the father of the victim was different, as referred herein above, the Investigating Officer was duty bound to take extra care before filing the charge-sheet and put some more efforts to get the up-to-date and relevant documents but for the reasons best known to the Investigating Officer, no satisfactory investigation on the main line had been carried out relating to the same and that has created chaos in the case on hand: "6. The school leaving certificate for the purpose of proving the age in a criminal trial is useless. This investigating agency must know not from today, but if they had read the other judgments of this Court and if they had read the judgments of any Sessions Judge in regard to the method of investigation in regard to the age they would have learnt as to how the age is required to be proved. But it appears to us clearly and we report that it clearly appears to us in this particular case that they have not done anything to find out and investigate as to what the age of Sushila was. The school certificate which is produced at Exhibit 19 and if the investigating agency had bothered to read that certificate from column No. 6 they would have known that the girl was not admitted for the first time in that school but she came to that school from some other school and the birth-date which was found in that certificate which was brought for the purpose of getting admission in this school that birth-date was noted. The investigating agency must find out as to in which school first she was admitted. This is necessary because under the Bombay Primary Education Act and the Rules made thereunder it is compulsory for the guardian to state the exact date of birth at the time of getting the child admitted and at that time, not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules and from that statement the investigating agency would be able to know the name of the person who got the child admitted in the school. That person is required to be examined in the court and that statement is required to be proved and that person would prove that on a particular date on which he went to the school authorities to get the child admitted, he gave the birth date from a particular source. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. That investigating agency should not have in any case bothered to file appeal but to improve the investigating method in order that such a result may not follow in all future cases to come." 5.3 Thus, considering all the aspects of the matter in entirety, I am of the view that the learned trial Judge has committed a grave error in convicting the appellant - accused No. 1 for the offences punishable under Sections 363 and 366 as no direct and cogent evidence has been forthcoming on the record. Moreover, the learned Additional Public Prosecutor is not in a position to take otherwise view of the matter by showing any substantial and cogent evidence. Accordingly, the present appeal deserves to be allowed giving benefit of doubt to the present appellant - accused and the impugned judgment and order is required to be set aside. 6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 16/06/2012, passed by the learned Additional Sessions Judge, Court No. 7, City Sessions Court, Ahmedabad, in Sessions Case No. 12 of 2010, is hereby set aside and the appellant-original accused No. 1 is acquitted of the charge for which he is convicted and sentenced. The appellant-accused No. 1 is reported to be on bail and accordingly, he needs not to surrender to custody except he requires so in any other case and his bail bond shall stand cancelled. Registry to return the R&P to the trial Court forthwith. Appeal Allowed.