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2017 DIGILAW 853 (GUJ)

Pravinbhai v. State of Gujarat

2017-04-20

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. The present conviction Appeal has been filed by the appellant-original accused, under Section 374(2) of the Cr. P.C., against the Judgment and order dated 19.02.1999 rendered in Atrocity Case No. 45 of 1999 by the learned Additional Sessions Judge, Vadodara, whereby the appellant-accused was convicted for the offence punishable under Section 363 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine, further simple imprisonment of thirty days, for the offence punishable under Section 366 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine, further simple imprisonment of thirty days, for the offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine, further simple imprisonment of thirty days and for the offence punishable under Section 3(a)(xi) of the Atrocity Act and sentenced to undergo six months simple imprisonment with fine of Rs. 100/-, in default of payment of fine, further simple imprisonment of fifteen days. 2. It is the case of the prosecution that complainant Shankarbhai Gababhai Solanki was residing at Vadodara with his family. His daughter Laliben is married. His twin daughter named Tejal and Gita are aged about 15 years. Prior to two months of the incident i.e. on 22.07.1996, brother in law of babbhai i.e. present appellant-accused herein, who was living in front of the complainant was talking with his daughter Tejal. When the complainant came to know about this fact, the complainant censured him through Babbhai. On 22.07.1996 at about 7:30 in the morning, when the complainant, his wife, daughter Laliben and grandchild went outside of the house, his daughter Tejal found missing. They also inquired whereabouts of his daughter Tejal through relatives, but all in vain. Brother in law of the appellant-accused informed that appellant-accused went away from the house since morning. Therefore, the complainant suspected that the appellant-accused must have eloped with his daughter. Therefore, the complaint in this regard was filed by the complainant before the Makarpura Police Station and offence was registered against the appellant-accused. 3. Thereafter, the investigation was carried out and statement of the witnesses were recorded. Therefore, the complainant suspected that the appellant-accused must have eloped with his daughter. Therefore, the complaint in this regard was filed by the complainant before the Makarpura Police Station and offence was registered against the appellant-accused. 3. Thereafter, the investigation was carried out and statement of the witnesses were recorded. On 13.12.1991, when the victim and appellant-accused appeared, panchnama of physical condition of the was drawn and both were sent for medical check-up to SSG hospital. The recovered muddamal was sent to the FSL for analysis. During the investigation, birth certificate of the victim was also obtained. Thereafter, appellant-accused was arrested. 4. After collecting the evidence by the Investigating Agency, charge-sheet was filed before the learned Judicial Magistrate First Class. As the said case was exclusively triable by the Court of Sessions, learned Judicial Magistrate First Class committed the case to learned Sessions Judge, Vadodara under Section 209 of the Criminal Procedure Code. 5. On the basis of above allegations, charge was framed vide Exh. 8 against the appellant-accused and read-over and explained to the appellant-accused for the alleged offences and plea was recorded, wherein, appellant-accused pleaded not guilty to the charge and claimed to be tried. 6. In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidences. 7. Thereafter, after filing closing pursis by the prosecution, further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant have submitted that a false case is filed against him. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Camp at Vadodara, the present appellant-original accused preferred this appeal. 9. Heard Mr. Chirag Patel, learned advocate for Mr. B.S. Patel, learned advocate for the appellant-accused and Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 10. Mr. Chirag Patel, learned advocate contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 10. Mr. Chirag Patel, learned advocate contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellant and has wrongly convicted the appellant. He then contended that the present complainant has no personal knowledge regarding the incident in question. He drew attention of the Court to evidence of principal Harshadray Ambalal Pandya and contended that age of the victim also creates shadow of doubt and therefore, the same should be discarded. He further submitted that the victim girl was in love with the appellant-accused. Mr. Patel, submitted that the prosecution story is concocted as her evidence is not corroborated by the evidence of complainant Shankarbhai Bababhai Solanki. He then contended that the victim ran away with the appellant-accused on her own will and stayed with him at Bhuj for about four months as husband and wife. Therefore, looking to the conduct of the present appellant-accused, it appears that this is a clear case of consent. The prosecutrix had no idea about the evil design of accused, and she had proceeded with him in good faith and under compulsive circumstances she was raped by the accused person and, therefore, there was really no consent. Further, the prosecutrix did not give any resistance and there were no injury marks on the private parts of the body, which make it clear that she was consenting party. He contended that no evidence was disclosed by the Investigating Officer, who recovered the clothes of the victim and therefore, in the absence of necessary links in the circumstantial evidence would not be suffice to record conviction against the appellant-accused. Mr. Patel, has drawn attention of the Court to a decision rendered in the case of Ravindra v. State of M.P., reported in AIR 2015 SC 1369 and contended that in the evidence of victim herself "adequate and special reason" established for awarding lesser sentence to the appellant-accused. The Apex Court further held that in such type of cases, accused should be awarded lesser sentence. The Apex Court further held that in such type of cases, accused should be awarded lesser sentence. He relied upon one decision rendered in case of S. Varadarajan v. State of Madras, reported in AIR 1965 SCA 942 and contended that the Apex Court has considered that taking out of lawful guardianship when the girl is in contact with the accused, there is no threat or inducement on the part of the accused. Therefore, in present case, the appellant-accused was in contact and love with the appellant-accused and therefore, taking away the victim from the legal guardianship is not proved beyond reasonable doubt. He further contended that so far as the school living certificate is concerned, date of birth is dated 29.06.1981 and date of the offence is 22.07.1996 and therefore, the in the instant case the victim is below 15 years and 23 days old at the time of incident. Further, the learned counsel, relying on the Trial Court judgment, contended that the Prosecutrix has failed to establish that her age was below 15 years and in view of the fact that there was no sign of rape or any injury, the present case, at the most, is a case of consent and therefore, trial Judge has awarded very harsh sentence to the appellant-accused and therefore, the same may be required to be reduced. Therefore, considering the above aspects, the learned trial Judge committed grave error by convicting the appellant-accused for the alleged offence and therefore, she prayed to allow this appeal by quashing and setting the judgment and order of the learned trial Court. 11. As against this, Mr. N.J. Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He then contended that in the oral version of father of the victim, he stated that victim was taken away by the appellant-accused from their legal guardianship without their consent. He then contended that the judgments relied upon by the learned counsel for the appellant-accused are not applicable to the present case because there is no adequate and special reason in the present case to reduce the sentence. He then contended that the judgments relied upon by the learned counsel for the appellant-accused are not applicable to the present case because there is no adequate and special reason in the present case to reduce the sentence. When it is coming on record that the victim is below 16 years, then it is the duty of the Court to consider special reasons for lesser punishment. Learned APP contended that in the case between State of Himachal Pradesh v. Shree Kant Shekari, reported in, AIR 2004 SC 4404 , it is held that when the consent of the victim is there, then burden of proof is on the accused to show that there was consent on her part and not on the victim. As per the main ingredient of Section 361, whoever takes or entices any minor under sixteen years of age, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. In present case, the prosecution has established ingredient of Section 361 of the IPC through school living certificate of the victim and therefore, the learned trial Court has rightly penalized the accused. He drew attention of the Court to provisions of Section 375 of the IPC and contended that there are six descriptions in the said provision. Therefore, charges against the appellant under Sections 363, 366 and 376 IPC were fully proved beyond any reasonable doubt. It was primarily on the ground that the prosecutrix was less than 15 years of age on the date of the incident i.e. 22.07.1996 and, therefore, there was no question of giving any consent by her and the alleged consent was of no value. He contended that the victim belongs to Scheduled Caste family and appellant-accused was neighbour of the victim. It was within the knowledge of the appellant-accused that victim belonged to Scheduled Caste and therefore, the learned trial Judge has rightly convicted the appellant-accused under the provisions of Atrocity Act. He contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with and therefore, he prayed to dismiss the present appeal. 12. He contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with and therefore, he prayed to dismiss the present appeal. 12. I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant. 13. It is argued by Mr. Patel, learned advocate that the appellant-accused was in love with the victim and with her own consent, she eloped with the accused and stayed with him for about four months. It is further argued by learned counsel for the appellant that this is a clear case of consent. In present case, date of the victim had entered in the school leaving certificate, was is 26.09.1981 and the incident took place on 22.07.1996. On that calculation, her age was found to be 15 years and twenty-three days and therefore, the victim was below 15 years. Therefore, reliance placed by learned advocate for the appellant upon Ravindra v. State of M.P (Supra) and S. Varadarajan v. State of Madras (Supra), for a finding of exoneration, is misconceived. In the instance case, not a single iota of evidence is record to consider there is adequate and special reasons. Here the victim, who was below 15 years at the time of incident, was taken away by the appellant-accused from the legal guardianship of the parents and stayed with her for about four months like husband and wife. The next facet relates to the facet of consent. It needs no special emphasis to state that once it is held that the prosecutrix is below 15 years of age, consent is absolutely irrelevant and totally meaningless. The devilish design and the crafty manipulation of the appellant is manifest. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. The devilish design and the crafty manipulation of the appellant is manifest. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the "fon juris" of our Constitution. The said rights are constitutionally secured. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrator of the crime must realize that when he indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution. 14. I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the appellant-accused. Therefore, no interference is required. The judgment and order of conviction dated 19.02.1999 rendered in Atrocity Case No. 45 of 1999 by the learned Additional Sessions Judge, Vadodara is hereby confirmed. The present Appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Therefore, no interference is required. The judgment and order of conviction dated 19.02.1999 rendered in Atrocity Case No. 45 of 1999 by the learned Additional Sessions Judge, Vadodara is hereby confirmed. The present Appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The bail bond of the applicant-accused shall stand cancelled and he is directed to surrender before the jail authority within a period of six weeks from today.