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2016 DIGILAW 883 (GUJ)

Merubhai Lakhmanbhai Mokariya v. State of Gujarat

2016-04-25

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the impugned judgment and order dated 09.06.2011 passed by learned 3rd Additional Sessions Judge, Jamnagar. By the said judgment, the accused was held guilty for offences punishable under Sections 363 and 366 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for seven years and to pay fine of Rs. 1,000/- and, in default of payment of fine, the accused was ordered to undergo simple imprisonment for one year. For offence punishable under Section 376 of IPC, the accused was ordered to undergo rigorous imprisonment for ten years with fine of Rs. 10,000/- and, in default of payment of fine, further simple imprisonment of one year was imposed. The accused was also convicted for the offence punishable under Section3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "Atrocity Act") and ordered to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and, in default of payment of fine, the accused was ordered to undergo further simple imprisonment of one year. All the sentences were to run concurrently. Being aggrieved by the impugned judgment, the accused has preferred present appeal. 2. The case of the prosecution is that the complainant was residing with his family in a hut on the banks of the river Aaji and was doing labour work. It is alleged that, on 1.6.2009, when the complainant went for labour work, the accused had kidnapped his four year old daughter and committed rape on her. It is alleged that though the accused was knowing that she belongs to 'adivasi', she was raped and thereby the accused had also committed an offence under the Atrocity Act. With these allegations, a complaint was filed against the accused before Jodiya Police Station. 2.1 Upon filing of the complaint, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses :- Sr. No. Name Exhibit 1 Dr. Girish Keshavji Ganatra. 8 2 Nabhu Nagubhai Damor Bhil. 16 3 Ramnikgar Hiragar Gosai. Thereafter, charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses :- Sr. No. Name Exhibit 1 Dr. Girish Keshavji Ganatra. 8 2 Nabhu Nagubhai Damor Bhil. 16 3 Ramnikgar Hiragar Gosai. 21 4 Prabhu Nagubhai. 25 5 Champaben w/o Nabu. 26 6 Nagubhai Varsingbhai Damor. 28 7 Ghumabhai Nanjibhai Damor. 29 8 Ashokbhai Devshibhai Boshiya. 30 9 Ayubbhai Hajibhai Badi. 36 10 Victim. 39 11 Nilesh Samjubhai Gadhavi. 46 12 Navlakdan Shambhudan Mokra, PSI. 54 13 Vitthalbhai Jodhabhai Bharvad, PSI. 55 14 Hamir Mepabhai. 62 15 Bhavanbhai Aalabha. 64 16 Nalinkant Narshibhai. 65 17 Sanjaybhai Tharshibhai Gadhvi. 71 18 Narendrasinh Ramsinh Jadeja. 85 2.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exhibit 1 Yadi for medical examination of the accused. 9 2 Medical examination report of the accused 10 3 MLC case papers. 11 4 Certificate of treatment of the victim. 12 5 Yadi for certificate of treatment of the victim. 13 6 Original complaint. 17 7 Caste certificates. 18, 19 8 Panchnama of the place of offence. 22 9 Panchnama of physical condition of the victim. 23 10 Panchnama of physical condition of the accused. 27 11 Panchnama of seizure of truck used in the offence. 31 12 MLC case papers and Yadi. 47, 48 13 Medical report of the victim. 49 14 Forwarding letter for sending caste certificate of the accused by the District Social Welfare Officer. 51 15 True copy of the caste certificate given by Ratiy Primary School. 52 16 Caste certificate of the accused given by Taluka Development Officer, Porbandar. 53 17 Copy of station diary entry. 56 18 True copies of the station diary entries of Jodiya Police Station. 57 to 60 19 Atrocity from. 61 20 Analysis report given by officer of mobile FSL van. 66 21 CD of photography. 67 22 Xerox of RC Book of the truck bearing no. GJ-12-U-6039. 72 23 Yadi of muddamal for analysis sent to FSL along with authority letter. 86 24 Receipt of muddamal being received by FSL, Junagadh. 87 25 Analysis report of the FSL along with forwarding letter. 88 26 Serology report of the FSL along with forwarding letter. 67 22 Xerox of RC Book of the truck bearing no. GJ-12-U-6039. 72 23 Yadi of muddamal for analysis sent to FSL along with authority letter. 86 24 Receipt of muddamal being received by FSL, Junagadh. 87 25 Analysis report of the FSL along with forwarding letter. 88 26 Serology report of the FSL along with forwarding letter. 89 2.4 At the end of trial, the Court below recorded further statement of the accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. Mr. K.I. Kazi, learned advocate appearing for the appellant-accused has taken us through the evidence and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He also submitted that a false case is filed against the accused. He also submitted that there are discrepancies in the statements of the witnesses and panchas before the police and in their deposition before the Court. He further submitted that this case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. He also submitted that no independent witnesses have been examined by the prosecution in support of its case. He also submitted that there is no direct evidence connecting the accused with the crime and the trial Court has committed an error in convicting the accused. He submitted that the accused also belongs to Socially and Economically Backward Class. He submitted that the certificates produced at Exh. 18 and 19 by the prosecution in support of its case are of State of Madhya Pradesh and the trial Court has committed an error in basing the conviction of the accused on these certificates. In view of above submissions, he prayed this appeal may be allowed, by setting aside the impugned judgment and the accused may be acquitted. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused is just and proper and she has supported the conviction recorded by impugned judgment. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She has taken us through the evidence on record and contended that the trial Court has not committed any error in convicting the accused. She has submitted that the age of the prosecutrix was just four years and the fact that she was forced to leave the parental home without consent of her parents would be the material aspect and, therefore, Sections 363 and 366 of the IPC would be attracted. She has further submitted that the appellant-accused has committed sexual intercourse, therefore, the trial Court has rightly appreciated the evidence on record and convicted the accused. She has taken us through the medical evidence and contended that since it is proved beyond reasonable doubt that the prosecutrix was four years of age and the accused committed rape on her after taking her away from the custody of her guardians, the trial Court has rightly convicted the accused. She has taken us through the medical evidence and evidence of the victim as well as prosecution witnesses, who have supported the case of the prosecution and submitted that the accused is rightly convicted by the trial Court. She submitted that this is a heinous crime and considering the evidence on record, the trial Court has rightly convicted the accused, therefore, this Court may not interfere with the impugned judgment and this appeal may be dismissed. 5. We have heard Mr. K.I. Kazi, learned advocate for the accused and Ms. C.M. Shah, learned APP appearing for the State. We have also gone through the impugned judgment and the 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. 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." 6. We have also gone through the evidence on record. From the evidence of PW-1, Girish Keshavji Galya, Exh. 8, it is clear that when the victim girl was brought to her, mother of the victim had narrated the history of rape being committed on her. PW-2, Nabhu Nagubhai Damor Bhil, father of the victim, has stated in his evidence that he and his wife went for doing labour work on the fateful day and when they returned, his younger brother told him that the victim was kidnapped by someone. The driver of the truck, who took away the victim was identified by his younger brother, when he was returning back and, thereafter, his daughter was also found. The driver of the truck, who took away the victim was identified by his younger brother, when he was returning back and, thereafter, his daughter was also found. He deposed that rape was committed on his daughter and his clothes were also having blood stains. This witness has also identified the accused before the Court. PW-4, Prabhu Nagubhai, who is brother of the complainant has also supported the case of the prosecution. Though this witness is minor, he has identified the accused before the Court and also stated that the accused had kidnapped the victim. This witness has also deposed that the victim was induced by the accused and thereafter taken away. He also deposed that he had identified the accused when he came back after committing the offence. He also deposed that when the victim was found her clothes were having blood stains and she was also having an injury. PW-5, Champaben, mother of the victim, has also supported the case of the prosecution. She deposed that she was informed by younger brother of the complainant about the incident and he informed that the victim was taken away by the accused. She also deposed that when the victim returned, blood was coming out of her private part. We have also gone through the evidence of the victim and she has also identified the accused before the Court. We have also gone through the evidence of Dr. Nilesh Gadhavi, PW-11, Exh. 46, who has stated in his evidence that the history was narrated before him by the mother of the victim. He further deposed that upon medical examination of the victim, it was found that there were marks of sexual intercourse with her and there were injuries on her body and private part. It is also proved that the victim was four years of age at the time of commission of offence. From the evidence on record, it is clear that the prosecution has successfully proved its case against the accused. In view of this, since offence under Sections 363, 366 and 376 of IPC is proved against the accused, we find that the trial Court has not committed any error in convicting the accused for these offences. 7. So far as offence punishable under Section 3(2)(v) of the Atrocities Act is concerned, we have gone through the evidence on record. In view of this, since offence under Sections 363, 366 and 376 of IPC is proved against the accused, we find that the trial Court has not committed any error in convicting the accused for these offences. 7. So far as offence punishable under Section 3(2)(v) of the Atrocities Act is concerned, we have gone through the evidence on record. In this regard, the trial Court has relied upon the Certificates produced at Exh. 18 and 19. Upon going through these certificates, it is clear that the same are issued by the authority of Madhya Pradesh and the victim was found to be a member of Scheduled Caste/Scheduled Tribe as per the list of such communities of Madhya Pradesh. Not only that there is nothing on record to prove that the accused was knowing about the caste of the complainant and he has committed the crime to insulted them publicly and abuse their caste. Moreover, there was no reason to believe that the accused was aware about their caste and with an intention to abuse it, the accused has committed the crime. From the language used in the complaint also, it is not coming on record that the accused had committed an offence under the Atrocity Act. Therefore, the contention raised by learned advocate for the appellant that no offence under the Atrocity Act is committed by the accused is required to be accepted and it can be said that only as an afterthought, allegations under the Atrocity Act are said to have been levelled against the accused. Therefore, we find that the accused is wrongly convicted for offence under Section 3(2)(v) of the Atrocity Act. Therefore, in our opinion, this Criminal Appeal is required to be partly allowed. 8. For the foregoing reasons, this Criminal Appeal is partly allowed. The impugned judgment and order dated 09.06.2011 passed by learned 3rd Additional Sessions Judge, Jamnagar, in Sessions Case No. 13 of 2009 is modified and the accused is acquitted from the charge of offence punishable under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. However, conviction of the accused for the offences punishable under Sections 363, 366 and 376 of IPC is confirmed. Fine, if paid by the accused for the offence punishable under Section 3(2)(v) of the Atrocity Act, be refunded to him. Remaining part of the impugned judgment shall remain unaltered. However, conviction of the accused for the offences punishable under Sections 363, 366 and 376 of IPC is confirmed. Fine, if paid by the accused for the offence punishable under Section 3(2)(v) of the Atrocity Act, be refunded to him. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to him. Bail bond, if any, stands cancelled. Record and proceedings be sent back to the Court below forthwith.