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2017 DIGILAW 1738 (GUJ)

Zala Ranubha Nanubha v. State of Gujarat

2017-10-07

A.J.SHASTRI

body2017
JUDGMENT : A.J. Shastri, J. 1. The Criminal Appeal is filed by the appellant - accused under Section 374 of the Cr.P.C. Against the judgment and order, dated 5.8.2016, passed by the learned Special Judge (POCSO), Mehsana in Special (POCSO) Case No. 81 of 2014. 2. The case of prosecution, in brief, is that on 5.9.2017, the victim (prosecutrix) without permission and consent of the parents, went away with the appellant - accused, who lured her and thereby, by giving false promise of marriage, took the victim in the evening hours at around 7.30 p.m. to various places including temple and committed rape, established physical relationship against her will and thereby, has committed an offence punishable under Sections 363, 366 and 376 of the IPC read with Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The case of the prosecution is that at the relevant point of time, the victim was below the age of 18 years and at the time when offence is said to have been committed, he was aged about 17 years and 11 months. Resultantly, a complaint was lodged at Bahucharaji Police Station being I-C.R. No. 57 of 2014. 2.1 A complaint came to be filed by the prosecutrix in which she asserted that from 5.9.2014 to 10.9.2014, she was kept by the appellant - accused with him and took advantage of her and thereby, established the physical relationship. 2.2 The aforesaid complaint came to be investigated by the Investigating Officer in which statements of relevant witnesses have been taken, panchnama of scene of offence has been drawn as well as the panchnama of recovery of clothes of the accused as well as the complainant came to be executed and thereafter, arrest panchnama is also drawn, medical examination has also been undertaken of the prosecutrix and the further inquiry was sent to PI Shri Santhal, pursuant to the order of Superintendent of Police, Mehsana. After conducting thorough investigation, since adequate material has emerged in which the appellant accused was to be tried, a charge-sheet came to be submitted for the offences as stated hereinabove. The case was committed to the Court of Sessions which came up for consideration before the Special Judge (POCSO) and the charge specifically came to be framed against the appellant accused on 24.2.2015 at Exh. 8. The case was committed to the Court of Sessions which came up for consideration before the Special Judge (POCSO) and the charge specifically came to be framed against the appellant accused on 24.2.2015 at Exh. 8. The same was read over to the appellant accused and his plea was recorded at Exh. 9, but since he denied the offence, the case was put up for further trial. After recording the plea, the prosecution with a view to establish the case against the appellant accused has led oral as well as documentary evidence. So far as oral evidence is concerned, as many as 16 witnesses have been examined and some 36 documentary material adduced before the Court and subsequently, a closure pursis was submitted by the prosecution. After closing of evidence by the prosecution, the Court has recorded a further statement of the appellant accused under Section 313 of the Cr.P.C. in which again the appellant accused reiterated that he has not committed any offence and claimed to be tried, pursuant to which respective sides tendered their written arguments. The issues have been framed by the trial court and after considering the entire material on record, the trial court found the appellant accused guilty of an offence punishable under Sections 363, 366 and 376 of the IPC read with Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 and passed the order of sentence in the following form by judgment and order dated 5.8.2016. "The appellant accused is convicted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 and under section 4 and 8 of the POCSO Act and sentenced to undergo rigorous imprisonment for Seven years and to pay a fine of Rs. 1,000/- and in default of payment of fine, further to suffer simple imprisonment for seven days and for the offence punishable under section 366 of IPC, the appellant was sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 2000/- and in default of payment of fine further to suffer simple imprisonment for fifteen days. Similarly, for the offence punishable under section 376 of the IPC the appellant accused was ordered to undergo rigorous imprisonment for 10 years and fine of Rs. 2,000/- and in default of payment of fine further to suffer simple imprisonment for 15 days. 2000/- and in default of payment of fine further to suffer simple imprisonment for fifteen days. Similarly, for the offence punishable under section 376 of the IPC the appellant accused was ordered to undergo rigorous imprisonment for 10 years and fine of Rs. 2,000/- and in default of payment of fine further to suffer simple imprisonment for 15 days. So far for the offence punishable under Section under Section 4 of the POCSCO Act is concerned, the trial court imposed rigorous imprisonment of 10 years and fine of Rs. 2000/- and in default of payment of fine further to suffer simple imprisonment of 15 days and under section 8 of the POCSO Act, rigorous imprisonment of 5 years and fine of Rs. 800/- and in default of payment of fine further to suffer simple imprisonment of 5 days, was imposed. The aforesaid sentences are ordered to run concurrently." It is this judgment and order which is made the subject matter of present Criminal Appeal by the appellant accused. 2.3 From the record, it appears that the Court has admitted the appeal on 15.2.2017 and after completion of process of paper-book compilation, it has been placed on Board for final disposal, wherein the appellant accused is represented by Mr. P.V. Patadiya, learned advocate for the appellant accused and Mr. Ronak Raval, learned Additional Public Prosecutor for the respondent - State. 3. Mr. P.V. Patadiya, learned advocate for the appellant accused has contended that the judgment and order passed by the trial court is not only perverse to the record, but reflects clear non-application of mind while exercising the jurisdiction. It has been contended by learned advocate that on her own, the prosecutrix has eloped with the present appellant accused and all throughout from 5.9.2014 to 10.9.2014, she, on her own, remained with the appellant accused and established the physical relationship. Learned advocate has further contended that testimony of prosecutrix is not credible and there are material contradictions reflecting which cannot be relied upon. In addition thereto, Mr. Patadiya has submitted that apart from the testimony of the prosecutrix, even the ocular version is not supported by medical evidence. The physical examination of the prosecutrix is revealing the fact that there were no marks of injuries nor any forceful act. In addition thereto, Mr. Patadiya has submitted that apart from the testimony of the prosecutrix, even the ocular version is not supported by medical evidence. The physical examination of the prosecutrix is revealing the fact that there were no marks of injuries nor any forceful act. Had there been so, the medical opinion might have been different and, therefore, in the absence of any consistency in ocular and medical evidence, it is not safe to convict the present appellant. Mr. Patadiya, learned advocate for the appellant has further contended that ingredients of an offence which are alleged against the present appellant are not established by the prosecution beyond reasonable doubt if the evidence on record is perused in as it is form and, therefore, raising of an inference and conjectures by the trial court are not sound and, therefore, on the basis of such exercise of jurisdiction, the order of conviction may not be passed. Learned advocate has further contended that even apart from medical evidence also, the age of the prosecutrix is not clearly establishing that she was minor at the relevant point of time. The physical examination of the prosecutrix is clearly revealing that her age might be beyond 18 years. Even the radiological report is also indicating that her age is beyond 18 years and, therefore, simply because one birth date entry which has been recorded on the basis of previous record, it cannot be said that prosecution has established the age of the victim beyond reasonable doubt. It is settled law, as contended by learned advocate for the appellant, that if the medical evidence is completely rulling out the probability of ocular evidence, a preference should be given to a medical evidence which is clearly visible on the record of the case. Learned advocate has further contended that examination of Medical Officer and the material attached with it, is indicating that she on her own has left and eloped with the appellant accused and the accused has not committed any crime. Learned advocate has further contended that examination of Medical Officer and the material attached with it, is indicating that she on her own has left and eloped with the appellant accused and the accused has not committed any crime. Learned advocate has further contended that at one point of time, the victim is indicating that for the purpose of executing the marriage, the appellant accused took her to a temple and kept there from 5.9.2014 to 10.9.2014 and committed a rape on her, whereas the history which has been given by herself before the doctor and while physically examining her, she has stated that for the purpose of offering prayer, the accused took her away. Therefore, there appears to be not only a consistent version of prosecutrix, but her version is at complete variance to the other material on record and, therefore, in such a situation, it is not safe to pass an order of conviction against the appellant accused. Mr. Patadiya, learned advocate has further contended that there are series of decisions in which it has been held that if there is a stiff probability of doubt on the age of prosecutrix, then the benefit of doubt must be extended to the appellant accused and, therefore, for that purpose and on the issues of other contentions, Mr. Patadiya, learned advocate has relied upon following decisions which this Court will deal with at an appropriate stage in the present judgment :– (1) Bhupatbhai Somabhai Sardiya v. State of Gujarat, reported in 2012 (0) GLHEL-HC 226734 (2) Rangitbhai Khodabhai Chauhan v. State of Gujarat, reported in 2015 (0) AIJEL-HC 234751 (3) Amarsinh Kalusinh Solanki v. State of Gujarat, reported in 2016 (0) AIJEL-HC 236351. (4) Ranjitbhai Raisangbhai Chu.Koli v. State of Gujarat, reported in 2016 (0) AIJEL-HC 236542 (5) Manojbhai Shankarbhai Makwana v. State of Gujarat, rendered in Criminal Appeal No. 1609 of 2012, dated 4.2.2015. 3.1 By referring to these decisions, learned advocate for the appellant accused, has requested the Court to extend the benefit of doubt to the present appellant. (4) Ranjitbhai Raisangbhai Chu.Koli v. State of Gujarat, reported in 2016 (0) AIJEL-HC 236542 (5) Manojbhai Shankarbhai Makwana v. State of Gujarat, rendered in Criminal Appeal No. 1609 of 2012, dated 4.2.2015. 3.1 By referring to these decisions, learned advocate for the appellant accused, has requested the Court to extend the benefit of doubt to the present appellant. Even otherwise it has been contended that a bare look at the reasons which are assigned by the trial court in passing the order of conviction, the same found to be not only perverse, but not cogent enough to sustain an order of conviction in the eye of law and, therefore, by contending this, learned advocate has summarized the stand and has requested the Court to quash and set aside the impugned order passed by the trial court and allow the appeal filed by the appellant accused. 4. To meet with the stand taken by the appellant in the present proceedings, Mr. Ronak Raval, learned Additional Public Prosecutor appearing for the State, has vehemently contended that a bare look at the judgment and order would make it clear that same has been passed after thorough examination of the evidence on record and while coming to the conclusion about guilt of the appellant accused, the trial court has assigned cogent reasons and, therefore, in the absence of any infirmity of any nature, no interference may be made. Learned APP has further contended that regarding the age of the prosecutrix, there is a cogent material available on record in the form of School Leaving Certificate in which the date of birth which is recorded is 27.10.1996 and the said date has been not only verified by the prosecutrix herself, but the other witnesses, namely, mother of the victim as well as father and aunt, who have been examined, have supported such material and, therefore, there is hardly any justifiable reasons to indicate that she was below 18 years of age at the relevant point of time. At the best, as per the School Leaving Certificate, she was aged about 17 years and 10 months and, therefore, practically, about to reach the age of 18 years. But, nonetheless, beyond the age of 16 years is not in controversy. Learned APP has further contended that to prove the age of the prosecutrix, the prosecution has examined the In-charge Principal at Exh. But, nonetheless, beyond the age of 16 years is not in controversy. Learned APP has further contended that to prove the age of the prosecutrix, the prosecution has examined the In-charge Principal at Exh. 52 and there seems to be no dispute with regard to said document and, therefore, learned APP has contended that when there is a specific document available on record which is proved by the prosecution, the radiological or medical opinion with regard to age looses its significance and it cannot be relied upon and, therefore, no error of any nature is committed by the trial court. For substantiating this contention which has been canvassed by the learned APP, a reliance is placed on a decision in case of Salim Dalubhai Sepayi v. State of Gujarat, reported in 2010 (3) GLH 582 and contended that the age is undisputedly below 18 years and, therefore, the ingredients of an offence have been established by the prosecution beyond reasonable doubt. Learned APP has further contended that it is ill-founded in the mouth of learned advocate for the appellant that no reasons are assigned. In fact, every contention which has been raised by the appellant before the trial court, the same have been dealt with and while justifying an order of conviction, valid reasons are assigned and, therefore, when such is the situation, the appeal deserves to be dismissed. 4.1 Mr. Ronak Raval, learned APP has submitted that this offence is a serious offence and is not only related to the victim only, but it has got its own impact on the societal structure and, therefore, no lenient view be taken. Learned APP has contended that circumstances are such where even benefit of doubt is also not possible to be extended and by contending this, has requested the Court to dismiss the appeal being meritless. No other submissions are made by learned APP. 5. Having heard learned advocates representing the respective parties and having gone through the reasons which are assigned by the trial court while passing the order of conviction, since this being an appeal against the order of conviction, the Court has thought it fit even to independently analyze the evidence on record so as to ensure whether any error is committed by the trial court or not. If that be so, the Court can examine the issue and pass an order appropriately in the interest of justice and for that purpose, the process is undertaken to deal with most material evidence which are reflecting on the record of the case. 6. First of all, there appears to be a specific charge against the present appellant - accused, with a view to execute a marriage, the victim (complainant) was lured and took her on 5.9.2014 at around 7.30 p.m. in the evening from the lawful custody of parents against their will and thereby, established the physical relationship against the wish of the victim and kept her from 5.9.2014 to 10.9.2014 and thereby, committed an offence of Sections 363, 366 and 376 of the IPC. As can be seen from the record that to establish the case, the prosecution has examined witnesses, approximately 16 in number and also produced more than 36 documentary evidence. However, few material evidence from the record deserves to be examined by the Court in the process of evaluating an order conviction. 7. In order to bring home the guilt against the appellant - accused, the prosecution has examined PW-1 - Dr. Chandrakant Kailashpuri Goswami, at Exh. 11. This witness happens to be the Medical Officer at the relevant point of time on 10.9.2014 when the victim was brought before him for examination. This witness has initially asked about the history from the victim in which it has been stated by the victim that on 5.9.2014 at around 7.30 p.m., by giving promise to marry, the victim was lured by the appellant accused and took her on motorcycle and established the physical relationship frequently. After recording this history, the witness has also noticed from the version of the victim that this appellant accused was serving as a driver of a vehicle belonging to the father of the victim since about six months and thereby, he is known to the victim. Since about two months, he left the job and did not meet. On 5.9.2014 when the victim had gone to temple for offering prayer, the appellant accused met her and gave promise to marry and thereby, took her away at various places. At Deppmalaji temple, this appellant accused performed some ceremony and they resided together. Since about two months, he left the job and did not meet. On 5.9.2014 when the victim had gone to temple for offering prayer, the appellant accused met her and gave promise to marry and thereby, took her away at various places. At Deppmalaji temple, this appellant accused performed some ceremony and they resided together. In the history, further it has been mentioned that on Sunday and Monday, twice physical relationship was established and with this history which has been recorded, the examination has taken place of the prosecutrix. She has stated that after the act being done, she took the bath and washed the clothes. The Medical Officer has found no other injuries on private part of the victim, but merely found some reddish portion. In cross-examination, a categorical version has come out of this Medical Officer that there were no marks of any force being applied or any physical injuries and from this testimony alone, it is not possible to jump to a conclusion that appellant accused is guilty of an offence of rape. With a view to examine further, the other evidence is also material enough to be analyzed and, therefore, her statement recorded at Mark-12 which is also worth to be taken note of. In this statement, it has been stated that on Sunday as well as on Monday, they established physical relationship which appears to be not against her will. Now, in the context of this, the history which has been recorded by the Medical Officer which was undisputedly given by herself only, the same deserves to be taken note of. In this history, at one point of time she has stated that she was taken by the appellant accused for the purpose of offering prayer at temple and at another stage, she has conveyed that for the purpose of solemnizing marriage, the appellant accused took her away and established the physical relationship frequently and, therefore, there appears to be stiff contradiction in the version of the prosecutrix herself and this can be seen from the certificate dated 12.9.2014 which is at page-81 of the paper-book compilation. Then, on Page-155 which is the medical case papers and Page-161 also, her statement reflecting which if to be compared with testimony, are completely at variance. 8. Now, the next witness is PW-2 - Dr. Tarun Baldevbhai Shah, who is examined at Exh. Then, on Page-155 which is the medical case papers and Page-161 also, her statement reflecting which if to be compared with testimony, are completely at variance. 8. Now, the next witness is PW-2 - Dr. Tarun Baldevbhai Shah, who is examined at Exh. 19 and who is the Medical Officer at Health Center, Becharaji and before whom, on 11.9.2014 the appellant accused was brought for examination. This Medical Officer has reflected in his testimony the history which has been given by the appellant accused which indicates that the prosecutrix on her own on 5.9.2014 called the appellant accused at Shiv Temple and ridden on motorcycle and thereafter, both the appellant accused and the prosecutrix had gone to various places. It has also been reflecting that throughout five days, the physical relationship has been established by the consent of the victim only. The physical examination of the accused by this witness has opined that the accused was competent enough to have physical relationship. But, then, in cross-examination he denied this fact. Nothing much comes out from this testimony. However, a certificate which has been issued by this Medical Officer at Mark-20 which is figuring at Page-109 of paper-book compilation is indicating that victim herself made a phone call to the appellant accused, called him and on motorcycle, she went away with appellant accused of her own and, throughout five days, she remained with the appellant accused with her own consent and established the physical relationship during these days. Similar such certificate is also reflecting at page-112 of the paper-book compilation. 9. The prosecution has next examined PW-3 - Goswami Maheshbharthi Vasudevbharthi, at Exh. 26. The testimony of this witness is indicating that he along with yet another panch witness were called at Bahucharaji Police Station for executing a panchnama of clothes of the prosecutrix. The testimony further reveals that her age was between 17 and 18 years and has produced the clothes which were worn by her during the period where she remained with the appellant accused. This panch witness appears to be residing in a nearby vicinity of the victim's house. 10. Yet another witness has been examined by the prosecution is PW-4 - Dr. Suthar Chetankumar, at Exh.32. This witness was serving as Medical Officer at General Hospital, Mehsana at the relevant point of time. This panch witness appears to be residing in a nearby vicinity of the victim's house. 10. Yet another witness has been examined by the prosecution is PW-4 - Dr. Suthar Chetankumar, at Exh.32. This witness was serving as Medical Officer at General Hospital, Mehsana at the relevant point of time. This witness has deposed that at around 12.20 p.m., the victim was brought before him for the purpose of certifying the age and giving expert opinion of Gynecology. At the time when this Medical Officer examined, the prosecutrix was in a full conscious state of mind and when the history was asked before erstwhile gynecologist, it has been narrated that this appellant accused, who was the driver, took her and done something and has surprisingly stated that she was unconscious at the relevant point of time. The testimony further reveals that full-time dental surgeon has specifically opined on the basis of examination that age of the prosecutrix is beyond 18 years and similar is the opinion of Dr. H.N. Patel, Radiologist, who has opined that age of the prosecutrix must be between 18 and 20 years. This witness has further reiterated in cross-examination that age of the prosecutrix is beyond 18 years and, therefore, so far as the age aspect of the prosecutrix is concerned, there is a positive and clear opinion given by Medical Officers that age of the prosecutrix is beyond 18 years. The relevant certificate of General Hospital which is figuring at Page-192 of the paper-book compilation as Mark-33. In last portion of this certificate issued by the General Hospital has categorically stated that the age must be 18 to 20 years and, therefore, it seems from the aforesaid evidence that prosecutrix, of her own, appears to have eloped with the appellant accused, has established the physical relationship without any resistance and the age, as per the medical opinion, is beyond 18 years found from the record. 11. Yet another material witness, who can be said to be a most important witness for the prosecution is PW-6 - Artiben Vipulbhai Prajapati, who is examined at Exh. 44 and is not only the victim, but the complainant. The testimony of this witness is indicating that they have one Toofan car bearing registration No. GJ-2-W-1192 and the appellant accused was serving as a driver since about six months. 44 and is not only the victim, but the complainant. The testimony of this witness is indicating that they have one Toofan car bearing registration No. GJ-2-W-1192 and the appellant accused was serving as a driver since about six months. This witness has conveyed in her deposition that on 5.9.2014, the accused made a phone call and called her near Shivji temple, where they met at about 7.30 p.m. and at that time, she has stated that appellant accused has conveyed specifically to run away and get married and, therefore, she rode on motorcycle and thereafter, travelled with him throughout from 5.9.2014 to 10.9.2014. The victim, no doubt, has stated that against her will, with force intercourse is committed by the appellant accused. But this statement appears to be quite in contrast with medical evidence. So much so the history which has been recorded is also not lending any support from this chief examination assertion. The cross-examination of this witness, who has given undisputedly the history on her own, has conveyed in contrast that when she went to the temple for offering prayer, this appellant accused came, lured her and took her away. But most importantly, in cross-examination, she has categorically admitted that one thing is correct that she on her own rode on the motorcycle of the appellant accused and remained with him on her own, with consent, from 5.9.2014 to 10.9.2014. Now, at one point of time she has asserted that she was unconscious at a relevant time when the appellant accused took away, but then before the doctor she has not conveyed. One another fact which is emerging from the cross-examination is that the parents personally on their own have written down the complaint in which she has just sign and, therefore, narration of the complaint is not that of prosecutrix herself. In fact, she has categorically stated that upto 10.9.2014, when police nabbed them, both were together and one another circumstance which has been narrated is that she has now married with one another gentleman and settled in life and, therefore, not only the testimony of the prosecutrix is self-contradictory but contrary to her earlier history which has been given before the doctor and not supported by even medical opinion. The injuries which are not visible are not tallied with the version which has been given by her in the deposition and, therefore, it appears that no much credence can be laid down upon this testimony. 12. The prosecution has thereafter tried to examine other witnesses in the form of PW-7 - Gabhabhai Kalabhai Nadia, at Exh. 46, PW-8 - Prajapati Vishnubhai Joitaram, examined at Exh. 47, who happened to be the father of the prosecutrix and the version of these witnesses is not completely supporting the case of the prosecution. Same is the case with one another witness i.e. PW-9 - Prajapati Kailashben Vishnubhai, who is examined at Exh. 49 and who happened to be the mother of the prosecutrix. This witness has also deposed similarly that of PW-8 i.e. the father of the victim. The prosecution has next examined PW-10 - Manjulaben Babubhai Prajapati, at Exh. 50, who happened to the relative of the victim and again, nothing much has turned out from the testimony of this witness. 13. With a view to make a further attempt of establishing the case against the appellant accused, the prosecution has examined PW-11 - Rameshbhai Nagjibhai Parmar, at Exh. 52, who is in-charge principal of Umeshwari Sarva Vidhyalaya, Chadasana. With a view to prove the age and substantiate the school leaving certificate and the entry regarding date of birth contained therein, this witness appears to have been examined. Now, at this stage, this witness has corroborated and supported the school leaving certificate, but then the testimony of revealing that registered nondh No. 4068 from which the school leaving certificate appears to have been issued, no supporting documents were available with him when he deposed and, therefore, he assured that after obtaining those documents, the same will be produced on the next date of hearing which undisputedly have not been produced and, therefore, though the school leaving certificate is indicating the date of birth as 27.10.1996, but other relevant documents which were assured to be produced on the next date, were not figuring and available on record at the relevant point of time when the trial court passed an order of conviction and, therefore, the school leaving certificate appears to have remained uncorroborated by other material. 14. The prosecution has then examined PW-15 - Sanjaykumar Jivanbhai Bhatiya, at Exh. 61. 14. The prosecution has then examined PW-15 - Sanjaykumar Jivanbhai Bhatiya, at Exh. 61. This police witness has taken necessary action with regard to the investigation and steps have been taken pursuant to receipt of the complaint. The cross-examination of this witness has revealed that investigation has emerged that twice the physical relationship is established by the appellant accused with the consent of the prosecutrix. So much so during the course of investigation, it has been emerged that both were having love affair and the Vodafone SIM card which has been given by the appellant accused was acknowledged by the prosecutrix and they were talking with each other from the said card. Some of the witnesses have fortified this circumstance, more particularly emerging from the statement of witness Vishnubhai and, therefore, a fact of relationship akin to love affair has emerged during the course of investigation found by this police witness. In the statement given by the witness Manjulaben, she has categorically stated that the age of the prosecutrix is beyond 18 years and has fortified the aforesaid circumstances which are narrated by the Investigating Officer. 15. Therefore, from overall material, what is emerging is that there is a love affair between the appellant accused and the prosecutrix and on account of that, with consent the physical relationship is established and so far as the age of the prosecutrix is concerned, the school leaving certificate has remained uncorroborated by other material which is in contrast with the medical opinion and the radiological opinion with regard to an issue of age of the prosecutrix. The FSL examination is also perused by the trial court while evaluating the evidence. 16. Now, in the context of this, one another witness is examined as PW-16 - Dharmarajsinh Jagdevsinhg Chudasma, at Exh.69, who was the in-charge of police station on 7.11.2014. From the testimony of this witness also, nothing much turns out and, therefore, what is emerging from the above material is that there was an affair between the two. 16. Now, in the context of this, one another witness is examined as PW-16 - Dharmarajsinh Jagdevsinhg Chudasma, at Exh.69, who was the in-charge of police station on 7.11.2014. From the testimony of this witness also, nothing much turns out and, therefore, what is emerging from the above material is that there was an affair between the two. Both have resided together with their own will from 5.9.2014 to 10.9.2014 and as per the medical opinion and radiological opinion and upon the opinion of the dental surgeon, the age of the prosecutrix is found to be beyond 18 years and as against this, the school leaving certificate has remained uncorroborated by other material which is undisputedly not produced, though assured by in-charge principal and, therefore, there appears to be a clear inconsistency on the evidence. Therefore, the testimony of the prosecutrix is hardly safe to be relied upon to hold the appellant accused as guilty of an offence. 17. The trial court has, while passing an order of conviction, assigned the reasons which are not sufficient enough to arrive at a guilt of the appellant accused confidently. On the contrary, a serious suspicion has emerged from the record with regard to taking away of prosecutrix by appellant accused; with regard to age of the victim and with regard to the medical opinion which is completely ruling out the possibility of forcible act by the appellant accused and a rape upon the victim. 18. Now, in the context of this, the reasons which are assigned are something not related to the evidence on record and most material aspect is that where the appellant and the victim resided, nobody is examined by the prosecution, though there is a categorical statement emerging that in a house both have resided. The cross-examination of the prosecutrix itself is, on the contrary, suggestive of a consent and, therefore, there appears to be a serious doubt about the case of prosecution especially when the cogent medical evidence is not completely ruling out the version given by the complainant and has clearly opined that age is beyond 19 years. This overall circumstance is indicating that a serious error is committed by the trial court in evaluating and analyzing the evidence on record and, therefore, by no stretch of imagination, it can be said that any offence is committed which has been proved by the prosecution beyond reasonable doubt. This overall circumstance is indicating that a serious error is committed by the trial court in evaluating and analyzing the evidence on record and, therefore, by no stretch of imagination, it can be said that any offence is committed which has been proved by the prosecution beyond reasonable doubt. 19. While coming to this conclusion, the Court is mindful of the circumstance that offence of rape is a serious offence and the same is not to be viewed lightly. There are decisions to the effect that the testimony of prosecutrix itself is sufficient enough to hold the person guilty of an offence of rape. But when the statement of prosecutrix is found to be highly inconsistent, not corroborated by other independent material, more particularly the medical examination, it is not always safe to go on deposition and the testimony of prosecutrix herself. A conjoint reading of entire evidence if found to be creditworthy, then only a conviction can be imposed, otherwise the benefit of doubt deserves to be given. For this purpose, some observations of the Apex Court deserve to be taken into consideration. The Apex Court, in case of State of Karnataka v. F. Natraj, reported in 2015 (16) SCC 752 , has in Para. 15 and 16, has observed as under: "15. Learned counsel for the respondent further relied upon Mohd. Ali v. State of U.P., (2015) 7 SCC 272 , wherein this Court recently held as follows: "30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony..." 16. In the present case, the gaps in the evidences of the prosecutrix and the medical officer make it highly improbable that sexual intercourse took place. It would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be stated with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. It would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be stated with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. The accused-respondent is, therefore, entitled to benefit of doubt." 20. The afore-mentioned analysis of evidence is not only reflecting that the prosecutrix contradicted herself about the case of the prosecution. So far as the alleged kidnapping is concerned, there is no material sufficient enough to establish that there was an abduction or kidnapping. On the contrary, what is emerging from the evidence is that she, of her own, eloped with the appellant accused. So far as other version with regard to other offences which are alleged is concerned, there appears to be no sufficiency. The material contradictions which are visible from the testimony and other relevant record is not inspiring any confidence in the case of the prosecution and, therefore, the Court has kept in mind yet another observation made by the Apex Court in case of Raja & Ors. v. State of Karnataka, reported in (2016) 10 SCC 506 , in which it has been propounded that though the testimony of the victim commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration and, therefore, these observations are worth to be taken note of for arriving at a just decision, hence quoted hereinafter: "34. This Court in Raju, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged." 21. Now, in the afore-mentioned situation which is emerging from the record, the judgments which have been relied upon by learned advocate for the appellant accused if to be looked into, the same are found to be coming in aid for the appellant accused. 21.1 So far as the first decision which has been pressed into service is in case of Ranjitbhai Raisangbhai Chu.Koli v. State of Gujarat, reported in 2016 (0) AIJEL-HC 236542, in which some observations contained in Para. 12 deserve to be quoted hereunder which observations were in a decision reported in (2013) 9 SCC 113 which came to be relied upon by this Court in aforesaid decision: "6.6 Thus, in aforesaid view of the matter, when there are material contradictions and improvements in the evidence of the victim herself together with the fact that for ascertaining the age of the victim, no ossification test had been conducted and thereby, the exact age of the victim has not on record and the aforesaid lacuna in the case on hand, in the considered opinion of this Court, the prosecution has failed to prove its case against the present appellant accused beyond reasonable doubt and the conclusion arrived by the learned trial Judge appears to be without considering the aforesaid material aspects. This Court is quite aware of the fact that so far as the offence punishable under Section 376 of the IPC is concerned, conviction can be based on the sole testimony of the prosecutrix if her version does not arouse any doubt in the mind of the Court. Simultaneously, it is also well settled legal position that when facts and circumstances cast a doubt on veracity of the prosecution case, it would be unsafe to convict the accused relying on an uncorroborated version of the prosecutrix. The Hon'ble Apex Court, in the decision of Kaini Rajan Vs. State of Kerala, reported in (2013) 9 SCC 113 , in para 12, has held as under: 12. Section 375 IPC defines the expression rape, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or of hurt. The expression against her will means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression consent. Section 90, though, does not define consent, but describes what is not consent. Consent, for the purpose of section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram.) 6.7 Moreover, in the decision in Dilip Vs. State of Madhya Pradesh, reported in (2013) 14 SCC 331 , in paras 15 to 19, it is held by the Hon'ble Apex Court as under: 15. (See State of H.P. v. Mango Ram.) 6.7 Moreover, in the decision in Dilip Vs. State of Madhya Pradesh, reported in (2013) 14 SCC 331 , in paras 15 to 19, it is held by the Hon'ble Apex Court as under: 15. So far as the issue of determining the age is concerned, in the instant case Doctor has found that prosecutrix was having only 28 teeth, 14 in each jaw. Such an issue was considered by this Court in Bishnudayal v. State of Bihar, wherein the Court appreciated the evidence as under: (SCC p. 360, para 8) "8. The evidence with regard to the age of the girl was given by the prosecutrix (PW 9), and her father Jagarnath (PW 4) and Dr. Asha Prasad (PW 14). PW 9 and PW 4 both stated that Sumitra (PW 9) was 13-14 years of age at the time of occurrence. Dr. Asha Prasad opined that the girl was only 13 or 14 years of age on 6-7-1967 when the witness examined her. The Doctor based this opinion on physical facts, namely, that the examinee (PW 9) had 28 teeth, 14 in each jaw, smooth pubic hair and axillary hair, which means the hair, according to the opinion of the Doctor, had just started appearing at the age of 14." (Emphasis added) 21.2 Yet another decision which has been relied upon by learned advocate for the appellant is a decision delivered by the Division Bench of this Court in case of Bhupatbhai Somabhai Sardiya v. State of Gujarat, reported in 2012 (0) GLHEL-HC 226734, in which with regard to the age, some observations are made which are very relevant to be taken note of, hence, reproduced hereinafter:- "7. So far as the age of the prosecutrix is concerned, it may be recorded, at the outset, that there is no infallible evidence brought on record by the prosecution. The certificate of registration of birth, if any, is not forming part of the record and it comes on record that the birth was not registered. The father of the prosecutrix - Sukhabhai Hamirbhai (Exh. 14) in his deposition states that the age of prosecutrix was 13 years, but barring this word, he has nothing to support his say. 7.1 The prosecution has then relied upon medical evidence wherein Dr. Vijay Krishan (Exh. The father of the prosecutrix - Sukhabhai Hamirbhai (Exh. 14) in his deposition states that the age of prosecutrix was 13 years, but barring this word, he has nothing to support his say. 7.1 The prosecution has then relied upon medical evidence wherein Dr. Vijay Krishan (Exh. 30) says that he had examined the prosecutrix and he found her age to be 16 years. However, there is also evidence of Dr. Ishwarbhai (Exh. 39), who had performed ossification test, and according to him, the age of the prosecutrix was between 17 and 19 years. He has issued a certificate to that effect as well. 7.2 The resultant effect is that the prosecution has not been able to prove the exact age of the prosecutrix and there is a possibility of she being more than 16 years of age and even a major i.e. more than 18 years of age." 21.2.1 Ultimately, the Division Bench by observing as above, allowed the appeal by setting aside the judgment and order passed by the court below. Here, in the present case also, exactly on a similar situation, the medical opinion is clearly ousting the case of the prosecution with regard to an issue related to the age. 22. Another decision which has been relied upon by the learned advocate for the appellant accused is in case of Rangitbhai Khodabhai Chauhan v. State of Gujarat, reported in 2015 (0) AIJEL-HC 234751, in which also by referring this, learned advocate has submitted that exactly similar is the situation with regard to medical evidence and, therefore, benefit must have been extended and by referring to the observations which have been made in Para. 8 and 10, learned advocate has requested that since the period of 3 years almost has been undergone, the same would be ordered to be suffice and, therefore, the observations contained therein are reproduced hereinafter: "8. At this stage, it is relevant to reproduce herein below certain observations made by the respective Courts:- 8.1 In S. Varadarajan v. State of Madras (supra) She willingly accompanied him and 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. At this stage, it is relevant to reproduce herein below certain observations made by the respective Courts:- 8.1 In S. Varadarajan v. State of Madras (supra) She willingly accompanied him and 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. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own that perhaps an unlettered girl hailing from a rural area. 8.2 In Bhartiben W/o. Sureshbhai Bhikhabha Chauhan (supra) We have heard learned Counsel for the respective parties and have perused the oral as well as documentary evidence on record. It is a matter of record that the prosecutrix went missing from her house in the noon hours of 07.09.2004. The document on record at Ex. 11 is the School Leaving Certificate of the prosecutrix, which is a conclusive piece of evidence for the purpose of ascertaining the age of a person. In the said document, the date of birth has been shown as 31.08.1986. Even otherwise, the said date of birth has not been disputed by the prosecution. Therefore, admittedly and evidently, on the day when the prosecutrix went missing from her house, she was more than 18 years of age. 10. Inspite of aforesaid observations, in my view, the learned trial Judge has fallen in error in considering the medical evidence of on record, which shows that there were no external injuries on the person of the victim. From the evidence on record, following aspects emerge: (a) The prosecutrix had moved from place to place with the accused and she did not at all complain. (b) There were no marks of injury on the person of the accused. (c) The important aspect is that the prosecutrix had time to complain but she had never stated that the accused had raped her, though she had chances. (d) They moved from one place to another place and stayed together for three months. (b) There were no marks of injury on the person of the accused. (c) The important aspect is that the prosecutrix had time to complain but she had never stated that the accused had raped her, though she had chances. (d) They moved from one place to another place and stayed together for three months. 10.1 Therefore, it is clear that the prosecutrix had voluntarily moved from place to place. The purpose and justification behind sentencing is not only retribution, incapacitation, rehabilitation but deterrence as well. A young boy of 19 years is already deterred as he is in jail. He is required to be rehabilitated, therefore, while upholding the conviction of the accused, sentence is required to be modified suitably. I am supported in my view by the decision of the Apex Court in the case of State of Chhattisgarh v. Lekhram reported in AIR 2006 SC 1746 . In the said case, similarly the prosecutrix was below 16 years of age, however, she was married and the respondent-accused who working in the house of father of prosecutrix abducted her and committed rape on her. While deciding the question of sentence, the Honourable Apex Court observed as under: 16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws' place. The Respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the Respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the Respondent again may not arise. She lived for some time with the Respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The Respondent preferred an appeal before the High Court in the year 1987. The same remained pending about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. The same remained pending about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the Appellant back to prison. 17. For the aforementioned reasons, while setting aside the judgment of the High Court and affirming that of the Trial Court, we are of the opinion that the interest of justice would be met if the Respondent is directed to be sentenced to the period already undergone by him. This appeal is allowed with the aforementioned directions." 23. But, here in the case on hand, it is emerging from the evidence on record that the prosecutrix has stayed with the appellant accused at various places and her testimony is not safe to be relied upon to pass an order of conviction and, therefore, the Court is of the opinion that these facts are peculiarly emerging which would necessitated the Court to extend the benefit of doubt in favour of the appellant accused. 24. From the overall appreciation of other decisions which have been cited, since it is emerging that the prosecution has not been able to establish beyond reasonable doubt some of the important aspects, as referred to above, it cannot be said that it has discharged its burden to prove the case beyond reasonable doubt and the trial court appears to have fallen in error in passing an order of conviction. 25. In the aforesaid background, Mr. Ronak Raval, learned APP has relied upon a decision in case of Salim Dalubhai Sepayi v. State of Gujarat, reported in 2010 (3) GLR 582. 25. In the aforesaid background, Mr. Ronak Raval, learned APP has relied upon a decision in case of Salim Dalubhai Sepayi v. State of Gujarat, reported in 2010 (3) GLR 582. Now, this judgment delivered by this Court is with respect to an issue related to imposing of minimum sentence by the trial court and having found that there were no adequate and special reasons to reduce the sentence, the conviction and sentence came to be maintained and, therefore, this judgment principally appearing to be very sound, but has no bearing upon the facts on hand and, therefore, cannot be pressed into service. It is settled position of law that a judgment and the ratio can be relied upon and to be followed as a part of judicial discipline. But if the facts are different, it would make a world of difference in applying such principle and, therefore, some of the observations from the decision delivered by the Supreme Court in case of State of Madhya Pradesh v. Narmada Bachao Andolan & Ors., reported in (2011) 7 SCC 639 , deserves to be quoted which reads, thus: "Precedence - Doctrine: 64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analyzing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: MCD v. Gurnam Kaur, AIR 1989 SC 38 , Govt. of Karnataka & Ors. v. Gowramma & Ors., AIR 2008 SC 863 and State of Haryana & Anr. v. Dharam Singh & Ors., (2009) 4 SCC 340)." 26. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: MCD v. Gurnam Kaur, AIR 1989 SC 38 , Govt. of Karnataka & Ors. v. Gowramma & Ors., AIR 2008 SC 863 and State of Haryana & Anr. v. Dharam Singh & Ors., (2009) 4 SCC 340)." 26. The overall analysis as indicated above constitutes one fact that prosecution has not been able to maintain and prove the case beyond reasonable doubt against the appellant - accused. What degree of proof is required, is not a mere imagination or a mere possible doubt. There should be a fair doubt based upon reason and common sense. The Supreme Court, while dealing with concept of reasonable doubt theory, has made some observations which are worth to be taken into consideration at this stage. For this purpose, relevant observations made by the Supreme Court in a decision in case of Krishnan & Anr. v. State represented by Inspector of Police, reported in (2003) 7 SCC 56 , are worth to be taken into consider which are in Para. 22 to 24 which reads, thus; "22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. Referring to probability amounts to 'proof' is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another, a learned author says: (See "the Mathematics of Proof II"; Glanville Willimas; Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)). "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other." 23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained institutions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uniformed legitimisation of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachalia, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal and another, AIR 1988 SC 2154 ." 27. This position was illuminatingly stated by Venkatachalia, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal and another, AIR 1988 SC 2154 ." 27. Yet another observations with regard to appreciation of evidence are worth to be taken in aid where it has been propounded that there is always a danger that conjecture or suspicion may take place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hodge, reported in (1838) 2 Lew 227 where he said 'The mind was apt to take a pleasure in adapting circumstance to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." Therefore, overall analysis of material and in consideration of the proposition of law if to be looked into in co-relation with the reasons which are assigned and conclusion arrived at by the trial court, it appears that this is a fit case in which a benefit of doubt deserves to be extended to the appellant - accused. Hence, the Court finds it difficult to accept the order of conviction in as it is form on the basis of present record of the case and, therefore, the Court deems it proper to set aside the same. 28. The present appeal is allowed. The judgment and order of conviction and sentence dated 5.8.2016 passed by learned Special Judge (POCSO), Mehsana in Special (POCSO) Case No. 81 of 2014, is hereby quashed and set aside. The appellant - Zala Ranubhai Nanubhai is acquitted of all the charges framed against him. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.