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2016 DIGILAW 843 (GUJ)

Firozbhai Daudbhai Agariya v. State of Gujarat

2016-04-18

RAJESH H.SHUKLA

body2016
JUDGMENT Rajesh H. Shukla, J. 1. The present Appeal is directed against the impugned judgment and order rendered in Sessions Case No. 100 of 2013 by the learned Additional Sessions Judge, Bhavnagar dated 31.3.2014 recording conviction of the Appellant/Original Accused for the offence under Sections 363, 366 and 376 of the Code of Criminal Procedure imposing the sentence and fine as stated in detail in the impugned judgment and order. The facts of the case briefly summarized are as follows: 2. The Appellant/Original Accused No. 1 is said to have abducted and enticed away the minor daughter of the complainant aged about 15 years and lured her for marriage and also took her away and moved from place to place and committed rape without her consent and thereby committed offence under Sections 363, 366 and 376 of the Indian Penal Code. 3. Heard learned Advocate Shri Hardik A. Dave for the Appellant and learned APP Ms. Hansa Punani for the Respondent - State of Gujarat. 4. Learned Advocate Shri Hardik A. Dave referred to the testimony of the complainant father P.W.-1 at Exh. 9 and his complaint at Exh. 10. Learned Advocate Shri Dave submitted that the complainant - father has stated about the date of birth as 12.12.1996. However, he submitted that it was an affair and the daughter of the complainant victim had eloped with the Appellant/Original Accused No. 1. He submitted that she had attained the age of discretion, and in fact, the ossification test reveal that her age could be between 15-17 years. For that purpose he referred to the testimony of Dr. Vijaybhai Jivrajbhai Kanani P.W.-3 at Exh. 15, who is a Medical Officer and pointedly referred to his testimony and submitted that the ossification test was made, where the age of the victim is stated to be between 15-17 years. Learned Advocate Shri Dave submitted that in the history given before the Doctor she has stated that she had accompanied the Appellant/Original Accused No. 1 at different places and they had stayed at Botad for about one month. Learned Advocate Shri Dave therefore submitted that it is a case of an affair and the benefit of ossification test regarding age of the victim may be given to the Appellant/Original Accused No. 1. Learned Advocate Shri Dave therefore submitted that it is a case of an affair and the benefit of ossification test regarding age of the victim may be given to the Appellant/Original Accused No. 1. He submitted that the age of the victim was very relevant for the purpose of considering the offence, for which, he referred to the testimony of Dr. Vijaybhai Jivrajbhai Kanani P.W.-3 at Exh. 15 and also referred to the testimony of Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29 [Sub-Registrar, Municipal Corporation of Bhavnagar]. Learned Advocate Shri Dave pointedly referred to the testimony of Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29 and submitted that the entry in the register is made without proper verification, which is admitted, and therefore, the entry or the extract of the birth and death register at Exh. 30 and the birth certificate produced at Exh. 31 are not reliable. Learned Advocate Shri Dave therefore submitted that the victim in her testimony has stated that her date of birth is 12.12.1996. However, she had attained the age of discretion as she had an affair with the Appellant/Original Accused, which is evident from her own testimony at Exh. 11. Learned Advocate Shri Dave pointedly referred to the testimony of the victim P.W.-2 at Exh. 11 where she has stated that she was taken forcibly on a motorcycle, which is not believable. Again she has stated that they had gone from Ahmedabad to Ajmer and from Ajmer to Surat and other places, where she had sufficient opportunity to raise an alarm or ask for help. In fact, referring to the cross-examination, learned Advocate Shri Dave submitted that as admitted by her in her testimony that on her birthday, gifts were given and even a simcard was also given by the Appellant/Original Accused No. 1. He therefore submitted that this conduct is required to be considered. Again, learned Advocate Shri Dave submitted that as stated by her in her testimony that the Appellant/Original Accused No. 1 has not enticed away and in fact as the father had fixed the engagement with a person, which she did not like, she had eloped with the Appellant/Original Accused No. 1. Learned Advocate Shri Dave submitted that it is a clear case of consent. Learned Advocate Shri Dave submitted that it is a clear case of consent. He submitted that assuming that she was a minor, where the consent would not be relevant, even then, the entire conduct would suggest about her willingness, and therefore, even though the victim was minor, she had attained the age of discretion, which has not been appreciated by the court below. Learned Advocate Shri Dave further submitted that even if it is accepted, it would amount to statutory rape. As the victim was minor, her conduct may not be overlooked. 5. Learned Advocate Shri Dave has made an alternate submission that while maintaining conviction, the sentence may be reduced. He further submitted that considering the reasons recorded by the court below on appreciation of facts and material, the present Appeal may be allowed. 6. Learned APP Ms. Hansa Punani for the Respondent - State of Gujarat referred to the testimony of Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29 and submitted that he is Sub-Registrar of the Municipal Corporation of Bhavnagar and had brought the record from which the extract is placed on record showing the date of birth of the victim as 12.12.1996. Learned APP Ms. Punani therefore submitted that, on the basis of the original record, the extract was kept on record and the certificate at Exh. 31 was issued. Learned APP Ms. Punani therefore submitted that considering the age of the victim as 12.12.1996, the victim would be minor as she would not have completed 16 years of age. Learned APP Ms. Punani submitted that the aspect of consent may not be relevant. Learned APP Ms. Punani submitted that the court below has recorded the reasons for sentence, which is less than minimum. She therefore submitted that as the minor is not competent to give the consent, it would not be relevant for the purpose of offence under Section 376 IPC. Learned APP Ms. Punani therefore submitted that once it is established on the basis of the certificate about the age of the victim as 12.12.1996, the other evidence may be considered in light of the present Appeal. Learned APP Ms. Learned APP Ms. Punani therefore submitted that once it is established on the basis of the certificate about the age of the victim as 12.12.1996, the other evidence may be considered in light of the present Appeal. Learned APP Ms. Punani submitted that the court below while recording conviction, has awarded less than minimum sentence considering the circumstances and conduct of the victim and still considering the totality of the facts and circumstances, the court below has recorded the conviction, and therefore, the present Appeal may not be allowed. Learned APP Ms. Punani also referred to the documentary evidence as well as the testimony of the victim and submitted that it was consensual act. 7. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration. 8. As it transpires from the appreciation of material and evidence, the submission regarding consensual act and affair is required to be considered with reference to the aspect of consent. The victim was minor as she had not completed the age of 16 years, and therefore, the moot question is whether, it can be said to be a valid consent. 9. For the purpose of deciding the aspect of consent for the offence under Section 376, the age is relevant. The victim was minor as she had not attained the age of 16 years. The submissions which have been made with much emphasis referring to the medical evidence particularly the testimony of Dr. Vijaybhai Jivrajbhai Kanani P.W.-3 at Exh. 15 that he had made the ossification test, for which, he had referred the victim to Radiologist, and on that basis, Certificate at Exh. 47 was given. The submission with reference to the ossification test that the victim was not a minor, is misconceived. It is required to be stated that the prosecution has examined one Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29, who is the Sub-Registrar with the Municipal Corporation of Bhavnagar. Manojbhai Ramniklal Parmar P.W.-7 in his testimony at Exh. 29, on the basis of the register for birth and death, has stated that the entry regarding the birth date of the victim is recorded, for which he has produced a copy/extract of the entry in the birth and death register at Exh. 30 and on that basis, the birth certificate is also produced at Exh. 31. 29, on the basis of the register for birth and death, has stated that the entry regarding the birth date of the victim is recorded, for which he has produced a copy/extract of the entry in the birth and death register at Exh. 30 and on that basis, the birth certificate is also produced at Exh. 31. Therefore, when there is a specific evidence with regard to the date of birth of the victim as 12.12.1996, the ossification test, in the form of medical opinion, would not be relevant. When there is specific evidence with regard to the age coming from the proper custody brought on record by the prosecution, the ossification test may not be required and could not be relied upon inasmuch as the other evidence regarding the date of birth and the age is available. If the other evidence like the birth certificate is not available or some doubts are raised with regard to the age as stated in the School Leaving Certificate, then, perhaps, the ossification test could be resorted to for the age of the victim in order to ascertain scientifically, on the basis of medical opinion. However, the direct evidence in the form of birth certificate as stated above, cannot be brushed aside. As the ossification test is the medical opinion, it leaves the margin of two years on either side, and as it is indicating only the probable age, it could not be permitted to be argued relying on such opinion that the victim would not be minor. If it is permitted, it would not only amount to overlooking specific evidence brought on record regarding the age from the proper authority like Sub-Registrar, Birth and Death, but it could be giving a chance for manipulating. If that is permitted, normally with the difference of two years on either side, it can always be suggested that two years may be added to the age of the victim, and on that basis, the benefit could be claimed, which is not permissible. 10. Therefore, as the victim is minor, the consent would not be relevant and the offence under Section 376 of IPC would be attracted. The submission that the victim had voluntarily accompanied the Appellant/Original Accused No.1, also may not be accepted. 10. Therefore, as the victim is minor, the consent would not be relevant and the offence under Section 376 of IPC would be attracted. The submission that the victim had voluntarily accompanied the Appellant/Original Accused No.1, also may not be accepted. The submission that she had attained the age of discretion is also misconceived in light of the statutory provisions for the offence under Section 363, 366 and 376 IPC which have also been considered and interpreted by the Hon'ble Apex Court in judicial pronouncements. In fact the provisions of Section 363 of the Indian Penal Code clearly provides that the offence is committed if a minor is taken away or enticed away from the lawful custody without the consent of the guardian with such promise to marry etc. The Hon'ble Apex Court in (1973) 2 SCC 413 in case of Thakorlal D. Vadgama v. The State of Gujarat referred to the provisions of Section 361 of the Indian Penal Code and observed: "In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducement by previous promise or persuasion was held in some English decision to be sufficient to bring the case within the mischief of the statute." Further, it has been observed: "The word 'entice' seems to involve the idea of inducement or allurement, by giving rise to hope or desire in the other." 11. Moreover, even in case of a person, who is not minor, whether consent can be said to be a free and voluntary consent, has to be considered. Reference can be made to the Jowitt's dictionary on English Law, which has defined the word 'consent' as follows: "Consent supposes three things, a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind." 12. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind." 12. Moreover, a useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment reported in (2003) 4 SCC 46 in case of Uday v. State of Karnataka. It has been observed: "The Courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent." 13. Thus, it would imply that there has to be a free and voluntary consent without any threat or compulsion. However, again this free consent has to be with regard to a person who is not minor, whereas, in the present case, the victim is minor, and therefore, the consent would not be relevant. The submission about the victim having attained the age of discretion and voluntariness or the consent, are therefore misconceived. 14. It is well settled that while considering the aspect of offence of rape and consent, the age would be very relevant as the minor would not be competent to give consent. In other words it has to be a valid and legal consent. When the law provides for the age of 16 years for the purpose of consent for offence under Sections 375 and 376 of IPC underlying the legislative purpose or the policy, is required to be considered. The legislature in its wisdom has provided for such age that minor would not be competent to understand and appreciate the consequence of the act, and therefore, her consent is not relevant while deciding the aspect of consent for the purpose of offence of rape. Further, it is required to be considered that the legislature in other similar piece of legislation has provided for the age of minor like Guardians and Wards Act and Hindu Marriage Act. These are the laws which refer to the aspect that a person would be competent to decide and give consent on attaining a particular age. Therefore, the minor is not competent to give consent as the minor could not have that much maturity and understanding to appreciate about the consequences of the Act. 15. These are the laws which refer to the aspect that a person would be competent to decide and give consent on attaining a particular age. Therefore, the minor is not competent to give consent as the minor could not have that much maturity and understanding to appreciate about the consequences of the Act. 15. Again, the provisions of Section 361 therefore provided for the age of 18 years for the girl/female. Not only that, the provisions of POCSO which have been made by the legislature, the definition of a child has a reference to the age of 18 years. Therefore, the provisions of Sections 363 and 366 of IPC, which provide for enticing away a minor from the guardianship, itself presupposes about the consent or the permission of guardian and not the consent of minor. 16. Therefore, once it is established that the victim was minor and consent would not be relevant and also the ingredients for the offence are established and the medical certificate as well as the testimony of Dr. Manojbhai Ramniklal Parmar P.W.-7 at Exh. 29 while recording the history confirms about the act. 17. This leads to the another facet of the submissions with regard to sentence. Again the law provides for RI for not less than 7 years and the court below has considered the circumstances which could be termed as special and adequate reason and imposed sentence of 5 years, which is less than minimum. The reliance placed by learned APP Ms. Hansa Punani in a judgment reported in (2014) 2 GLH 153 in case of Lavji S/o. Chaturji Kanaji Thakore also require to be considered in background of the statutory provisions. It is necessary to strike a balance between the wrong or the offence on one hand demanding the imposition of the rational and logical punishment, which in turn would have a reference to the doctrine of proportionality in sentence. For that, the Court has to consider various relevant circumstances like - the need to deal with the offence and sweeping changes, which have been introduced reflecting the legislative intention to curb such offence with an iron hand, which in turn, affect the dignity of a woman. On the other hand the effects which may have a bearing on the accused, who may be in his prime youth and severe punishment, would ruin his career and the prospect in life. On the other hand the effects which may have a bearing on the accused, who may be in his prime youth and severe punishment, would ruin his career and the prospect in life. Therefore, the court has to consider the basic philosophy of the punishment like deterrent, retributive, reformative or rehabilitative. While considering the aspect of doctrine of proportionality in sentence justifying the adequate sentence, the Hon'ble Apex Court in a judgment reported in (2008) 12 SCC 33 in case of State of Punjab v. Rakesh Kumar has observed as under: "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710 ), this Court while refusing to reduce the death sentence observed thus: "It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon." However at the same time, it has also been observed: "Proportion between crime and punishment is a goal Respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. After giving due consideration to the facts and Circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Counsel MCGDautha v. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Counsel MCGDautha v. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished." 18. It is in this background, suggesting the broad guidelines, the court is required to consider the aspect of punishment or the sentence. The courts have to balance the mitigating circumstances which could be termed as special or adequate circumstances on one hand and the crime and the impact of such a crime on the society. This has led to evaluation of doctrine of proportionality in sentence. The doctrine of proportionality in criminal law adheres in general to the principle of proportionality in prescribing the liability according to the culpability of each kind of criminal conduct and it would permit the court to reflect upon the consideration of culpability and the facts of each case. Sometimes, the corrective measures are needed which may justify the lesser sentence. The court must also reflect upon the various factors like cross cultural effects, overall scenario prevailing in the society with the change in the social norms, liberalized attitude in life, more exposers of the children to the media, and the other surroundings, which in turn may have an effect on their getting matured, which can be the side effect of such environment in the society, giving rise to the issues which can be better addressed in social engineering. Therefore, as the conviction is recorded as the victim is a minor, the court cannot overlook the scenario prevailing in the society, and therefore, the reasons recorded by the court below could be considered as special and adequate reasons or the circumstances for awarding less than minimum sentence particularly when there is no enhancement appeal by the State. Therefore, the court would rest at that and the present Appeal deserve to be dismissed in light of the discussions made herein above. The present Appeal accordingly stands dismissed.