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Gujarat High Court · body

2019 DIGILAW 78 (GUJ)

Ashokkumar Juthalal Maldev v. State of Gujarat

2019-01-30

R.P.DHOLARIA

body2019
JUDGMENT : 1. This is an appeal under Section 374 of the Code of Criminal Procedure against the judgment and order of conviction dated 15.12.200 recorded by learned Special Judge, Ahmedabad in Atrocity Criminal Case No. 32 of 2000. The record & proceedings indicates that the present appellants were charged for the offence punishable under Sections 363, 366, 372, 373, 376 read with Section 34 of the Indian Penal Code (hereinafter referred to as “the Act” for short), however at the conclusion of trial, the learned trial court acquitted accused No.4-Kishor Shah, whereas present appellants came to be convicted for the offence punishable under Sections 372 and 373 of the IPC. 2. The case of the prosecution is short is that on 25.04.1995 at about 12.30 hours, appellant Nos. 2 & 3 – accused Nos. 2 & 3 had abducted the daughter of the complainant in order to get her married with appellant No.1-accused No.1 and thereby, they committed an offence punishable under Sections 363, 366, 372, 373, 376 read with Section 34 of the Indian Penal Code. 3. Investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, the charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 3.1 In order to bring home the charges against the accused, the prosecution has examined witnesses and produced the documentary evidence. 3.2 Thereafter, after filing of closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused have denied the case of the prosecution and submitted that a false case is filed against them. 3.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge delivered the impugned judgment. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 15.12.2000 recorded by learned Special Judge, Ahmedabad in Atrocity Criminal Case No. 32 of 2000, the appellants-accused have preferred the present appeal before this Court. 4. Learned advocate Mrs. Falguni Patel as well as learned advocate Mr. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 15.12.2000 recorded by learned Special Judge, Ahmedabad in Atrocity Criminal Case No. 32 of 2000, the appellants-accused have preferred the present appeal before this Court. 4. Learned advocate Mrs. Falguni Patel as well as learned advocate Mr. M. M. Tirmizi for the appellants have taken this Court through the entire record & proceedings, impugned judgment and order and read over the evidence of material witnesses. They argued that the learned trial court has not properly appreciated the evidence on record and wrongly convicted the present appellants. 5. On the other hand, learned APP has supported the judgment of learned trial court and has argued that the learned trial court, after appreciating the evidence on record, rightly delivered the judgment which calls for no interference. 6. This Court has minutely gone through the record & proceedings and the evidence of material witnesses. 7. Prosecution witness No.1-Lilaben Sureshbhai Parmar-mother of the victim deposed in parallel line in which she lodged the complaint on 19.06.1995 wherein she stated that one Sanjay and Shailesh eloped her daughter, however since they were not arraigned as accused in the present proceedings, her evidence is not at all relevant for consideration of the matter. 8. Prosecution witness No.2-Surekha Sureshbhai Parmar-victim deposed that her date of birth is 22.09.1977 and she studied upto 7th Standard. She deposed that on 25.04.1995, she had voluntarily left her home with Shailesh, friend of Sanjay with whom she was in love, with five pairs of cloth and thereafter, she could not meet the Sanjay. She deposed that thereafter, she had gone to the place known as Hartkeshwar and visited her friend Radhika and thereafter, one Santaben who took her to Janmnagar where she met 2-3 boys. She deposed that though she was not in full agreement, she got married with appellant No.1-Ashok and resided with him for about three years, during which period, she had miscarriage for about three times. She also narrated certain things involving accused No.4 in examination-in-chief. However, in the cross-examination, she clearly and categorically admitted that she had not complained as regards any sort of sexual relationship by accused No.4. She further admitted that she was in love with Sanjay, however her parents were not allowing her to meet him and Shailesh was the friend of Sanjay. However, in the cross-examination, she clearly and categorically admitted that she had not complained as regards any sort of sexual relationship by accused No.4. She further admitted that she was in love with Sanjay, however her parents were not allowing her to meet him and Shailesh was the friend of Sanjay. She also admitted that she had left her home voluntarily and while she was residing at the house of accused-Santa for about a month, at that time, she never desired to go back to her home. She also admitted that the accused Ashok had never beaten her nor harassed her. She further admitted that though accused Ashok told him to go to her parental home, she refused all the time. She also admitted that during her marriage time with accused Ashok, she was suffering from T.B. and she was treated at Jamnagar and Bombay and even the accused-Ashok was treating her well as also used to satisfy her all demands. She also admitted that when she met accused Ashok, at that time, she made a false representation that she belongs to the community of Levua Patel. She also admitted that when she got married with Ashok, she communicated the same in writing to her parents, though her parents had never tried to meet her. 9. In view of aforesaid factual scenario, since the present appellants came to be convicted for the offence punishable under Sections 372 and 373 of IPC, it would be fruitful to extract the provisions of Sections 372 and 373 of IPC as under:- “372. Selling minor for purposes of prostitution, etc.— Whoever sells, lets to hire, or otherwise disposes of any 1[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. 373. 373. Buying minor for purposes of prostitution, etc.— Whoever buys, hires or otherwise obtains possession of any 1[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.“ 10. On making overall evaluation of evidence on record, indisputably, the FIR at Exh.8 came to be lodged in the year 1995 by the complainant – mother of the victim. However, the victim- Surekha had not lodged any complaint that she was taken away for the purpose of prostitution or for the offence punishable under Sections 363, 366 or 376 of IPC. All throughout, she remained at the house of appellant-Ashok after marriage in the year 1995. Further, she was found out by the police in pursuance of the aforesaid complaint as regards her missing filed by her mother in the year 1995. She came to be found out in the year 1999 after about four years, during which period, neither she made any complaint nor she raised any objection. In view of clear admission made by the victim in her deposition, no offence as alleged is being constituted as for about three years, by representing herself to be belonging to the community of Levua Patel, she herself got married with appellant Ashok and resided with him for about more than three years, during which period, they were residing as husband wife and she had miscarriage for more than three times. The victim had also undergone ailment for curing T.B. at Jamnagar and Bombay. She was residing publicly and had never complained and even her deposition is also not suggesting that any offence as alleged is being constituted against the present appellants. 11. In view of aforesaid evidence on record, the learned trial court failed to consider the evidence in its proper perspective and wrongly convicted the appellants for the offence under Sections 372 and 373 of the IPC which is not sustainable in law. 12. As a result, this appeal is allowed. 11. In view of aforesaid evidence on record, the learned trial court failed to consider the evidence in its proper perspective and wrongly convicted the appellants for the offence under Sections 372 and 373 of the IPC which is not sustainable in law. 12. As a result, this appeal is allowed. The judgment and order of conviction dated 15.12.2000 recorded by learned Special Judge, Ahmedabad in Atrocity Criminal Case No. 32 of 2000 is quashed and set aside. The accused-appellants are acquitted of the charges levelled against them. Since the appellants are on bail, they need not to surrender. The bail and bail bond, if any, stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to them by the respondent-State. 13. Record and Proceedings be sent back to the trial Court concerned forthwith.