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2016 DIGILAW 383 (GUJ)

Arvindbhai Virjibhai Solanki v. State of Gujarat

2016-02-17

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals have been preferred by the appellants-accused against the judgment and order dated 29.9.2007 passed by learned Presiding Officer, 3rd Fast Track Court, Gondal, Camp at Upleta, in Sessions Case No. 129 of 2007, whereby the appellants-accused were convicted for the offence under Sections 363, 366, 376 and 506 (2) of the Indian Penal Code (for short, "IPC"). The appellants were convicted for offence under Sections 363 and 366 of IPC and were sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay fine of Rs. 5,000/- each, and in default of payment of fine, further imprisonment of six months was imposed. The accused No. 1 was convicted and sentenced to rigorous imprisonment for life and ordered to pay fine of Rs. 15,000/- for offence under Section 376 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of one year was imposed. The accused No. 2 was convicted and sentenced to rigorous imprisonment for ten years and ordered to pay fine of Rs. 10,000/- for offence under Section 376 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of eight months was imposed. The appellants were also convicted for offence under Sections 506 (2) of IPC and were sentenced to undergo rigorous imprisonment for a period of one year. Being aggrieved by the impugned judgment, both these appeals are preferred by the accused persons before this Court. 2. The case of the prosecution in short is that:-- "2.1 The victim has stated in her complaint that the accused No. 1 is her uncle and she used to come to their house. Thereafter, accused No. 1 started touching her and tried to have sexual relation with her, therefore, he was scolded by her parents. Thereafter also, in absence of her parents, accused No. 2 used to take the victim to her house, where accused No. 1 was forcing her to have sexual relationship. She was also threatened of acid attack if she do not have sex with accused No. 1. It is also alleged that even a threat of life of her brother was also given. Accordingly, accused No. 1 had sexual intercourse with her and she got pregnant. She was also threatened of acid attack if she do not have sex with accused No. 1. It is also alleged that even a threat of life of her brother was also given. Accordingly, accused No. 1 had sexual intercourse with her and she got pregnant. When it was informed to accused No. 1, he took her away on the promise that he would marry her. On coming to know that accused No. 1 is not going to marry her, the victim escaped from there and went to the police. With these allegations, the complaint was given against the accused persons. 2.2 Upon filing of the complaint, investigation started. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of Sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exhibit 1 Victim 7 2 Arvindbhai Khakhabhai Father of victim 9 3 Rasilaben w/o Arvindbhai mother of vitim 10 4 Bhavanjibhai Arvindbhai brother of vitim 11 5 Urmilaben w/o Kantibhai 12 6 Danabhai Somabhai 13 7 Goutambhai Anantray Upadhyay Maneger of guest house 14 8 Maheshbhai Chimanlal Nimavat Maneger of guest house 17 9 Dr. Ketalkumar Babulal Baladhya Medical officer 25 10 Kokilaben Amrutlal dangi 39 11 Ambuji Ramji Bhai 44 12 Amim Swali Kasri 47 13 Dr. Priti w/o Dr. Snehalbhai 58 14 Bhimibhai Alakhabhai Bhabhiya 61 2.4 The prosecution had also produced and relied upon following documentary evidence:- Sr.No. Description Exhibit 1 Original complaint victim 8 2 Extract of register of page 37 sr. no. 475 of balram Guest house 15 3 Cover of sample of signature of accused No.1 16 4 Extract of register of page 38 sr. no. 488 of balram Guest house 18 5 Receipt of recovery of payment from Balram Bhuvan xeros copy of Sr. no. 475 of balram Guest house 15 3 Cover of sample of signature of accused No.1 16 4 Extract of register of page 38 sr. no. 488 of balram Guest house 18 5 Receipt of recovery of payment from Balram Bhuvan xeros copy of Sr. 543-544 19-20 6 Cover of Sample of signature of accused No.1 21 7 Case Paper of G.G. Hospital Jamnagar of Accused 26 8 Form for collection of Sample form of Accused no.1 27 9 Identification form of accused No.1 28 10 Case paper of G.G. Hospital Jamnagar of Accused 29 11 Form for collection of sample form of victim 30 12 Identification form of victim 31 13 Case paper G.G. Hospital Jamnagar of Sitin Solanki 32 14 Form for collection of sample form of Sitin Solanki 33 15 Identification form of sitin solanki 34 16 Receipt of muddamal received by FSL Gandhinagar 35 17 Police letter regarding getting the muddamal back 36 18 Letter of Analysis report of muddamal 37 19 Sample of Signature of victim taken by the court 38 20 Case file page No. 1 to 72 of Kasturba vikas Gruh of the victim 40 21 Copy of police report for inquiry of victim 41 22 Copy of police report regarding getting possession of DNA test of victim and his son 42 23 Report of registering the offence 45 24 Copy of police yadi for taking blood sample for DNA 46 25 FIR in form of 154 48 26 Copy of leaving certificate of the victim 49 27 Reporting for making entry in the station diary regarding arrest of the accused 50 28 Copy of police yadi regarding permission to for investigation in a government vehicle 51 29 Wireless message regarding permission for investigation in a government vehicle 52 30 Yadi order of P.I. Shri Kasiri to P.S.I. Shri M.R. Bhatti for giving report after investigation 53 31 Report of making entry in the station diary regarding arrest of accused No.2 54 32 Copy of police yadi for doing DNA test 55 33 Copy of letter containing detail of seized muddamal used in the offence 56 34 Certificate of Dy. Sp. Sp. regarding jurisdiction 57 35 Outdoor and indoor case papers of victim at the time of giving birth to a child Sr.No.24762-7079 59-60 36 Copy of letter regarding permission for chargesheet 62 2.5 At the end of trial, the Court below recorded further statements of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence to the accused, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court by the original accused." 3. Mr. Y.S. Lakhani, learned Senior Advocate appearing with Mr. Dave for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Mr. Lakhani submitted that none of the prosecution witnesses have supported the case of the prosecution. He further submitted that it is an admitted position that the victim was above 17 years of age at the time of commission of offence. He further submitted that the Court below has seriously erred in not appreciating the fact that the prosecutrix was in love with the appellant-accused No. 1. He submitted that in view of this no offence under Section 376 of IPC can be said to have been proved against the accused persons. He also submitted that even the victim had stated in her statement that she went with the accused on her own. Therefore, no case of offence under Sections 363 or 366 is made out against the accused persons. He further submitted that the matter was already settled between the parties and they were likely to get married, however, in view of pronouncement of judgment by the trial Court, the settlement could not be acted upon. He further submitted that the Court below has seriously erred in taking cognizance of offence of rape. It is submitted that Court below has failed to consider the evidence on record which shows the age of the prosecutrix was more than 17 years, and, therefore, the evidence also supports defence. He further submitted that the Court below has failed to consider that the prosecutrix was matured enough to understand the act of sexual intercourse and it cannot be said that such act was done with force or coercion. He further submitted that the Court below has failed to consider that the prosecutrix was matured enough to understand the act of sexual intercourse and it cannot be said that such act was done with force or coercion. Therefore, he submitted that the accused have not committed any offence and they may be acquitted by setting aside the impugned judgment. He further submitted that there was absence of any force or coercion on the part of the appellants and therefore offence of kidnapping is also not made out. He further submitted that Court below has failed to consider that this was a case of love affair, and, therefore this was not a case of rape or kidnapping. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed. 4. On the other hand, Ms. Shah, learned APP appearing for the State has taken this Court through the evidence and has submitted that the judgment of the learned Trial Judge is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. She submitted that from the evidence on record, it is clear that the accused No. 1 had taken advantage of their family relations and by threatening the victim he committed rape on her. She also submitted that in view of the fact the accused had promised her to marry and later on did not marry her, this is a ground to uphold the judgment of the learned trial Judge. She has further submitted that the appellant-accused No. 1 has committed sexual intercourse by giving false promise to her that he would marry her and accused No. 2 had supported accused No. 1 althroughout in commission of offence, therefore, the trial Court has rightly appreciated the evidence on record and convicted the accused persons. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed. 5. We have heard learned counsel appearing on both sides and also gone through the impugned judgment as well as evidence on record. Before considering the case on merits, it would be profitable to refer to the Provisions of Section 363, 366 and 376 of the Indian Penal Code, which are as under:-- "363. 5. We have heard learned counsel appearing on both sides and also gone through the impugned judgment as well as evidence on record. Before considering the case on merits, it would be profitable to refer to the Provisions of Section 363, 366 and 376 of the Indian Penal Code, which are as under:-- "363. Punishment for kidnapping:-- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. XXX XXX XXX 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. XXX XXX XXX 376. Punishment for rape:--(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (1) Whoever: -(a) Being a police officer commits rape- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." 8. From the evidence on record, it is clear that though the prosecutrix had time to complain but she had never complained about the offence. The Birth Certificate reveals her age to be more than 17 years on date of incident. Not only that it has also come on record that she had gone voluntarily with the accused. Therefore, when the prosecutrix willingly accompanied the accused, the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. Not only that it has also come on record that she had gone voluntarily with the accused. Therefore, when the prosecutrix willingly accompanied the accused, the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. Considering the facts and circumstances of the case and evidence on record, it cannot be said that the prosecutrix was abducted or was seduced. Therefore, when the age of the prosecutrix is more than 16 years and she has voluntarily moved with the accused, the accused cannot be convicted for offence under Sections 363, 366 or 376 of the IPC. 9. For the foregoing reasons, both these appeals are allowed. The impugned judgment and order dated 29.9.2007 passed by learned Presiding Officer, 3rd Fast Track Court, Gondal, Camp at Upleta, in Sessions Case No. 129 of 2007 is quashed and set aside. The appellants herein-original accused are acquitted of all the charges levelled against them. Fine, if deposited by the accused, be refunded to them. It is also stated by learned counsel for the appellant that the child borne out of the present offence will be taken care by the appellant of Criminal Appeal No. 791 of 2009. In view of this statement, compensation as directed by the impugned judgment, may not be deposited by the appellant of Criminal Appeal No. 791 of 2009, however, he may look after the child till the child becomes major. Bail bond, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.