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2016 DIGILAW 659 (GUJ)

State of Gujarat v. Jitumal Tejumal Ramani

2016-03-23

K.J.THAKER

body2016
JUDGMENT : Kaushal Jayendra Thaker, J. 1. The present appeal under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 07.03.2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Bhavnagar in Sessions Case No. 156 of 2004, whereby, the learned trial Judge acquitted the original accused - the respondent herein of the charges for the offence punishable under Section 363 and 366 of the Indian Penal Code. 2. The brief facts of the prosecution case is that the complainant Jawaharbhai Parimal Choithani who was serving had three sons, out of which the eldest was married, and he had a daughter. It is the further case of the prosecution that his daughter was aged 17 years and unmarried and her date of birth is 13.03.1986. The accused was running a bakery who had come on 12.03.2003 in the afternoon hours induced the daughter of the complainant and thereby kidnapped her. The complainant was scared as it was the question of reputation of the family. However again after his daughter returned back on 12.05.2003 between early morning 11:00 to 12:00 o'clock when the complainant had gone to Bazar and his wife had gone for worshipping, the accused called his daughter and again induced him to run away with him. Thereafter complaint has been filed by the complainant against the accused. The police started the investigation with lodgment of an FIR being C.R. No. 1 - 177 of 2003 registered with "A" Division Police Station, Bhavnagar. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondent was arrested and, ultimately, charge-sheet was laid against him in the Court of learned Magistrate, Bhavnagar. As the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was numbered as Sessions Case No. 156 of 2004. The trial was initiated against the respondent-accused. To prove the case against the present accused, the prosecution has examined 11 witnesses and also produced documentary evidence. 3. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 07.03.2005. 4. 3. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 07.03.2005. 4. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant State has preferred the present appeal. 5. It was contended by learned APP Mr. Oza that the 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 proved all the ingredients of alleged charges against the present respondent. Learned APP Mr. Oza has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed. 6. Heard the learned APP for the appellant and also gone through the oral as well as documentary evidence, particularly the evidence of victim who is examined at Exh. 10 wherein she deposed that the her father was died and the complaint was registered by her farther and she fully corroborates the complaint. She further deposed that she was induced by the accused and she was taken to Rajkot where she was confined for two days and all the time she was weeping. She further deposed that she was enforced to leave her parental home and the accused gave threat that if she did not marry him, he would not allow her to marry someone else. The prosecution even relied upon several oral as well as documentary evidence. The learned trial Judge has considered three points for determination. The first being whether the offence was committed under Section 363 of IPC whereby the accused induced the minor daughter of the complainant and thereby kidnapped her and committed the offence under Section 366 of IPC. The another point was similar to that of Section 366 was alleged so as to compel her to marry with him. All these points were held against the prosecution. 7. Learned APP Mr. The another point was similar to that of Section 366 was alleged so as to compel her to marry with him. All these points were held against the prosecution. 7. Learned APP Mr. Oza has heavily relied on the grounds enumerated in the memo of appeal more particularly ground (e) and (g) whereby it is submitted that the age of the victim was below the statutory age and the learned trial Judge has materially erred in holding that there is no physical injury as per the opinion of the doctor and they had no sexual relation and therefore there was no offence committed. 8. The principles which would govern and regulate the hearing of an appeal by this Court against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI v. STATE OF KERALA & ANR.", (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under; "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 9. Further, in the case of "CHANDRAPPA v. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge; [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 10. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 11. Even in the case of "STATE OF GOA v. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 12. Similar principle has been laid down by the Apex Court in cases of "State of Uttar Pradesh v. Ram Veer Singh & Ors.", 2007 A.I.R. S.C.W. 5553 and in "Girja Prasad (Dead) by L.Rs. v. State of MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 13. In the case of "LUNA RAM v. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under; "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 14. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. v. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. v. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 15. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 15. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of "STATE OF KARNATAKA v. HEMAREDDY", AIR 1981 SC 1417 , wherein it is held as under; "...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary, (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 16. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. v. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under; "That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 17. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. 18. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP Mr. Oza for the appellant-State. The latest judgment of the Hon'ble Supreme Court relates to the age in the case of State of Madhya Pradesh v. Munna [ (2016) 1 SCC 696 ] and in this case it is an admitted position of fact that the victim cannot be said to have been kidnapped against her will. The provisions of Section 366 read with Sections 359, 361 and 363 of the IPC will have to be read in this behalf. Section 359, 361, 363 and 366 reads as under: "359. Kidnapping : Kidnapping is of two kinds : kidnapping from a [India], and kidnapping from lawful guardianship. [a] Subs. The provisions of Section 366 read with Sections 359, 361 and 363 of the IPC will have to be read in this behalf. Section 359, 361, 363 and 366 reads as under: "359. Kidnapping : Kidnapping is of two kinds : kidnapping from a [India], and kidnapping from lawful guardianship. [a] Subs. by Act 3 of 1951, s. 3 and Sch., for "the States." 360. Kidnapping from India : Whoever conveys any person beyond the limits of a [India] without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from a [India]. [a] Subs. by Act 3 of 1951, s. 3 and Sch., for "the States." 361. Kidnapping from lawful guardianship:-- Whoever takes or entices any minor under a [sixteen] years of age if a male, or under b [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. [a] Subs. by Act 42 of 1949, s. 2, for "fourteen". [b] Subs., by s. 2, ibid., for "sixteen". State Amendment Manipur In its application to the State of Manipur, in Section 361 for the word "eighteen" substitute the word "fifteen"- Act 50 of 1950, S.3(2) (16-4-1950) read with Act 81 of 1971, Section 3 (25-1-1972). 363. Punishment for kidnapping : Whoever kidnaps any person from a [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. [a] Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". STATE AMENDMENT Uttar Pradesh : In Uttar Pradesh, the offence under Section 363, I.P.C. is non-bailable. 363A. [a] Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". STATE AMENDMENT Uttar Pradesh : In Uttar Pradesh, the offence under Section 363, I.P.C. is non-bailable. 363A. Kidnapping or maiming a minor for purposes of begging : (1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine. (3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. (4) In this section,- (a) "begging" means- (i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise; (ii) entering on any private premises for the purpose of soliciting or receiving alms; (iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; (iv) using a minor as an exhibit for the purpose of soliciting or receiving alms; (b) "minor" means- (i) in the case of a male, a person under sixteen years of age; and (ii) in the case of a female, a person under eighteen years of age.] 3[a] Ins. by Act 52 of 1959, s. 2 (w.e.f. 15-1-1960). OBJECTS AND REASONS: "To put down effectively the evil of kidnapping of children for exploiting them for begging, the provisions existing in the Indian Penal Code are not quite adequate. by Act 52 of 1959, s. 2 (w.e.f. 15-1-1960). OBJECTS AND REASONS: "To put down effectively the evil of kidnapping of children for exploiting them for begging, the provisions existing in the Indian Penal Code are not quite adequate. There is also no special provision for deterrent punishment for the greater evil of maiming of children so as to make them objects of pity." This section "makes kidnapping or obtaining custody of a minor, and the maiming of a minor for employing him for begging specific offences and provides for deterrent punishment."-S.O.R. Gaz. of Ind., 1959, Pt. II, S. 2, Extra, p. 1150. 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; a [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 that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid]. [a] Ins. by Act 42 of 1997 s. 2. 366A. Procreation of minor girl:-- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. [a] Ss. 366-A and 366-B inserted by the Indian Penal Code (Amendment) Act, 1923 (20 of 1923), S. 3. 366B. [a] Ss. 366-A and 366-B inserted by the Indian Penal Code (Amendment) Act, 1923 (20 of 1923), S. 3. 366B. Importation of girl from foreign country: Whoever imports into [India] from any country outside India [or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, [* * * *] shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine." In view of the above, it is required to be noted that as per the medical evidence the age of the victim was not below the age of 18 years, and even if we peruse the school leaving certificate, the date of birth of the victim is recorded as 13.06.1986 while as per the Register of Birth and Death Registration, the date of birth of the victim is recorded as 13.03.1986, and therefore, there is serious discrepancy regarding this aspect and the benefit of doubt should be given to the accused and therefore it cannot be said that the order of the learned trial Judge is perverse which calls for interference by this Court. However, dealing with other aspects, even the victim can be said to have been moved from place to place and she had voluntarily gone with the accused and there was no inducement to her. Therefore the submission of Mr. Oza learned APP is devoid of merit and the appeal deserves to be dismissed. However, on going through the entire record, it cannot be said that there is such a great perversity in the judgment as the learned trial Judge has gone through the entire evidence, and therefore, it would not be proper for this Court to upturn the judgment. I do not find any infirmity in the order passed by the learned trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned trial Judge is just and proper. The evidence on record will not permit this court to take a different view than that taken by the learned trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. The judgment and order of acquittal passed by the learned trial Judge is just and proper. The evidence on record will not permit this court to take a different view than that taken by the learned trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the evidence on record, the learned APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153 . Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 19. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. 20. In the result, the appeal is dismissed. The impugned judgment and order dated 07.03.2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Bhavnagar in Sessions Case No. 156 of 2004 is confirmed. Bail bond shall stand cancelled.