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Gujarat High Court · body

2020 DIGILAW 111 (GUJ)

Darji Chirag Urmilbhai v. State of Gujarat

2020-01-21

V.P.PATEL

body2020
JUDGMENT : V.P. PATEL, J. 1. The Appellant Accused has filed this Appeal under Section 374 of the Code of Criminal Procedure (“the Code” for short) being aggrieved and dissatisfied with the judgment and order dated 15.10.2005 passed by the learned Additional Sessions Judge and Presiding Officer (5th Fast Track Court) Mahesana (hereinafter referred to as “the learned Sessions Judge”) in Sessions Case No. 104 of 2005. 2. Heard learned Advocate Mr. Vijay H. Patel for H.L. Patel Advocates for the Appellant and learned APP Ms. Jirga Jhaveri for the Respondent-State of Gujarat. Order under challenge: 3. The Appellant Accused has challenged his conviction order dated 15.10.2005 passed by the learned Sessions Judge in Sessions Case No. 104 of 2005 whereby the Appellant Accused was convicted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentenced to undergo RI of 3 years and fine of Rs. 1500/- and in default to undergo further imprisonment of 6 months for the offence under Section 363 IPC. The Appellant Accused was convicted for the offence punishable under Section 366 IPC and was sentenced to undergo RI of 4 years and fine of Rs. 1500/- and in default to undergo further imprisonment of 6 months and was convicted for the offence punishable under Section 376 IPC and was sentenced to undergo RI of 7 years and fine of Rs. 2000/- and in default to undergo further RI of 9 months. Arguments on behalf of the Appellant: 4. Learned Advocate for the Appellant Accused has further argued that the age of the prosecutrix is more than 16 years as her birth date is 23.2.1988. That the prosecutrix has stated in her complaint as well as in her deposition that she had voluntarily gone with the Appellant Accused. That the medical certificate issued by the Doctor does not warrant conviction because it is in favour of the Appellant Accused. That the prosecutrix even though having ample opportunity of making grievance/complaint on the next day of her stay at Surat when she had left along with the Appellant. That the prosecutrix had not made any efforts to run away from the Appellant Accused. Learned Advocate for the Appellant therefore submitted that the offence under Section 376 of IPC is not made out. 5. That the prosecutrix had not made any efforts to run away from the Appellant Accused. Learned Advocate for the Appellant therefore submitted that the offence under Section 376 of IPC is not made out. 5. Learned Advocate for the Appellant further fairly submitted that he has confined his arguments for the offence under Section 376 IPC only. It is further submitted that the Appellant Accused and the victim have made a compromise. The Affidavit dated 21.12.2019 is produced before this court and he requested to take it on record which is taken on record. It is further submitted that the affidavit is genuine. He is ready to bring the victim before this court but it will be a harassment to the victim as she has already married with other person and she is settled in her married life. Arguments of the Defence: 6. Learned APP Ms. Jirga Jhaveri for the Respondent State has argued that the judgment and order passed by the learned Sessions Judge is legal and valid in the eye of law. That the learned Sessions Judge has rightly considered the oral as well as documentary evidences produced on record. That the complaint was filed by the victim who has narrated the incident which had happened. She has deposed on oath as per the complaint filed by her. That the ingredients of the offence under Section 376 IPC are satisfied. Learned APP further submitted that the ingredients of the offence under Section 376 are established by the prosecution with cogent and reliable evidence. Learned APP therefore requested to dismiss the Appeal. Learned APP has submitted the jail remarks which is taken on record. Merits of the case: 7. Learned Advocate for the Appellant has confined his argument only for the offence punishable under Section 376 IPC. The Appellant has submitted the affidavit dated 21.12.2019 of the victim/prosecutrix wherein it is stated as under: “3. I say and submit that the appellant and the deponent herein are of same village and it is further submitted that I am married with one Pragneshbhai Darji and living happily with my family and on the other side accused person also married to one Kajalben and both of us are having children and having family responsibilities, therefore, after the passage of time the dispute between us is amicably settled with the help of relatives and community people. I say and submit that now we all have cordial relation and therefore, I earnestly urge this Hon'ble Court to take into consideration the said aspect and further be pleased to pass appropriate order in the appeal and oblige the appellant as well as the deponent in the interest of justice. 4. I say and submit that as I have settled the dispute amicably with the help of our family members and other members of our community, I do not with to proceed with the criminal appeal and even thereafter if the case is to proceed further on either way the same would lead to shameful and embarrassing situation for me and my other family members. 5. I say and submit that the complaint was filed by me and therefore I am filing this affidavit with my free will and consent and I would request that the impugned judgment may kindly be set aside in the interest of justice and the appellant may kindly be acquitted from the order of conviction in the larger interest.” Age of the prosecutrix: 8. So far as the age of the prosecutrix is concerned, the prosecution has produced berth certificate issued by the Gram Panchayat Vizapur, District Mahesana at Exh.42 and the extract of the register of the birth and death maintained by the Vijapur Nagar Palika, District Mahesana at Exh.43. The prosecution has examined PW-11 Vishnubhai Maganbhai Patel at Exh.39. These two documents are proved and executed in his deposition. As per this certificate issued by the Gram Panchayat, the date of birth of the victim is 23.2.1988. 9. The prosecution has also produced School Leaving Certificate at Exh.46. The prosecution has also examined PW-12 Babubhai Harjibhai Damor at Exh.41. The School Leaving Certificate, same is proved, in his deposition and exhibited. As per this School Leaving Certificate the birth date of the victim is 23.2.1988. 10. The date of incident was 17.11.2004. Considering the date of birth of the prosecutrix as 23.2.1988, the victim was 16 years 8 months and 24 days as on date of the incident i.e. to say she was above 16 years. 11. As per the definition of ‘Rape’ under Section 375 IPC Explanation VI as regards to the circumstances falling under Category VI with or without her consent when she is under 16 years of age. The incident was of 2004. 11. As per the definition of ‘Rape’ under Section 375 IPC Explanation VI as regards to the circumstances falling under Category VI with or without her consent when she is under 16 years of age. The incident was of 2004. The new amendment is not applicable to this case. Offence of Rape under Section 376 of IPC: 12. Learned Advocate for the Appellant has vehemently argued that the Appellant Accused and the victim were in love with each other. The defence has produced the letters written by the victim at Exh.28 to 30. All the love letters are written by the victim. These letters are shown to her during the deposition of the victim and she has admitted her signature and her handwriting on the love letters and these love letters are accepted. 13. On perusing the letters at Exh.29 it is stated that she is in love with Appellant Accused. She wanted to marry with the Appellant Accused but her mother was not agreed for such a relation. It is further stated that on Sunday she talked about her love affair with the Appellant Accused and her mother had beaten her. Not only that but her mother had poured kerosene on the victim and the match stick was ignited. At that time the victim had shouted. However the matchstick was not thrown on the victim. The another incident was narrated is that when the victim talked about her relation with the Appellant Accused, her mother had given Gamaxin (poison) to the victim because of which she became unconscious and fell down and thereafter her grandfather had taken care and after sometime she became conscious. 14. On perusing the letter Exh.30, it is stated that all these letters are addressed to the Appellant Accused by the victim. It is stated that she loved the Appellant Accused very much. However her mother refused for such relationship and had harassed her. Therefore she is depressed. It is further stated that her mother has shown one boy for victim’s engagement but the victim had denied. At that time the victim has shown her willingness to marry with the Appellant Accused but the mother of the victim has given a knife blow on her right hand due to which the bleeding was not stopped. All such story is narrated in the love letters. At that time the victim has shown her willingness to marry with the Appellant Accused but the mother of the victim has given a knife blow on her right hand due to which the bleeding was not stopped. All such story is narrated in the love letters. From the above letters, it appears that the victim was in love with the Appellant Accused. 15. In her cross-examination, the victim has admitted that she wanted to marry the Appellant Accused but only with the consent of her parents. It is also admitted that at the time when she ran away from the house she carried all her clothes and filled her bag herself. It is also admitted that at TB hospital the Appellant Accused waiting in the rickshaw and at that time she was asked to come and sit in the rickshaw which she did. Medical Evidence: 16. The prosecution has examined PW-6 Dr. Nileshbhai Arvindbhai Brahmbhatt at Exh.22. This witness has examined the victim. He has stated that the vagina is capable of inserting one finger. There was no stain of bloods or semen. The vaginal swab was sent to the FSL laboratory but no spermatozoa was found. It is further stated that according to his opinion he cannot opine that rape is committed. In his cross examination this witness has stated that it is true that the vagina is not torn and therefore he cannot opine as to whether the rape is committed or not. The medical case papers are produced at Exh.17. The prosecution has produced the medical certificate at Exh.11 wherein it is stated that no external injury on any part of the body or vagina region is found. Considering the medical evidence and the deposition of the Doctor, it is established that the medical evidence has not supported the version of the victim. 17. Considering the deposition of the victim and medical evidence produced on record it appears that the prosecution has not established that rape is committed by the Appellant Accused against the victim’s will and without her consent. Thus offence under Section 376 of IPC is not made out. Offence under Section 363 - Abduction: 18. The charge of the offence punishable under Section 363 and 366 IPC are also framed. Section 363 of IPC reads as under: “363. Thus offence under Section 376 of IPC is not made out. Offence under Section 363 - Abduction: 18. The charge of the offence punishable under Section 363 and 366 IPC are also framed. Section 363 of IPC reads 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.” 19. The definition of ‘kidnapping’ is also defined under Section 361 as under: “Kidnapping from lawful guardianship - Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, 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. Explanation - The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.” 20. The prosecution has examined PW-10 Durgeshkumar Madhavlal Darji father of the victim at Exh.32. He has stated in his deposition that on the date of incident at about 1:30 pm the Appellant Accused kidnapped his daughter. Thereafter he made a search for her but he could not find her. Thereafter on the second day he lodged a complaint before the Vijapur Police Station which is exhibited at Exhibited at Exh.35. 21. The Hon'ble Apex Court in a judgment in case of State of Haryana vs. Raja Ram, AIR 1973 SC 819 has observed as under: “The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in s. 361, are significant. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in s. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control, further the guardian's charge and control-appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial, it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have, been by means of force, or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.” 22. To prove the offence under Section 363 the prosecution has to establish that the girl (below the age of 18 years) was taken away or enticed her out of the lawful guardianship of her parents. As per Section 363 the consent of guardian is required and no consent of minor is required. Considering the deposition of the father of the victim, the ingredients of Section 363 are established. Offence under Section 366 of IPC: 23. As far as Section for the offence under Section 366 is concerned, the kidnapping or abducting or enticing a woman with intent to compel to marry any person against her will or any order that she may be forced or seduced to illicit intercourse. As far as Section 366 is concerned, the kidnapping or abducting is required to be done by the accused person with intention. Section 366 reads as under: “Kidnapping, abducting or inducing woman to compel her marriage, etc. As far as Section 366 is concerned, the kidnapping or abducting is required to be done by the accused person with intention. Section 366 reads as under: “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 [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 that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].” 24. Considering the deposition of the victim the prosecution has not established that she was compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. As per the love letters produced at Exh.28 to 30 the Appellant Accused has established that the victim was in love affair with the Appellant Accused. The letters show that she was very eager to marry the Appellant. Therefore the ingredient of Section 366 are not established by the prosecution. Conclusion: 25. Considering the reasons stated in the memo of Appeal, the arguments advanced by the learned Advocate for the Appellant as well as the learned APP, considering the oral as well as documentary evidences produced by the prosecution and the facts and circumstances of the case, I am of the view that the victim was below 18 years of the age at the time of incident. She was taken away out of keep of the lawful guardianship without the consent of the father or the mother of the victim. Thus, the ingredients of the offence under Section 361 read with Section 363 of IPC are established. 26. Learned Advocate for the Appellant has argued that the incident took place in the year 2004. More than 15 years have been passed. Thus, the ingredients of the offence under Section 361 read with Section 363 of IPC are established. 26. Learned Advocate for the Appellant has argued that the incident took place in the year 2004. More than 15 years have been passed. That the victim has filed an affidavit stating that she had married with another person and she is living a happy married life. The Appellant Accused has also married one Kajalben and he is also living a happy married life. They have harmonious relation with each other. He requested that the Accused may be sentenced for the period already undergone. 26.1 Learned Advocate for the Appellant has relied upon the judgment of the Hon'ble Apex Court in the case of Ravindra vs. State of M.P. (2015) 4 SCC 496 wherein in paragraph 16, 17 and 18 the Hon'ble Apex Court has observed as under: “16. The fourth ground of defence taken by the appellant is that under proviso to Section 376(2) of IPC, the legislature has empowered the Court to award lesser sentence where "adequate and special reasons" exist. The incident in the present case had taken place 20 years ago. The victim (prosecutrix) and the accused have entered into a compromise stating therein that the prosecutrix does not want to proceed with the case against the accused and wants to close the case. Both of them are married (not to each other) and have settled in life. Learned counsel for the appellant contends that this is an "adequate and special reason" for awarding lesser sentence. 17. This Court has in the case of Baldev Singh and Others vs. State of Punjab, (2011) 13 SCC 705 , invoked the proviso to Section 376 (2) (g) of IPC on the consideration that the case was an old one. The facts of the above case also state that there was compromise entered into between the parties. 18. In light of the discussion in the foregoing paragraphs, we are of the opinion that the case of the appellant is a fit case for invoking the proviso to Section 376(2)(g) of IPC for awarding lesser sentence, as the incident is 20 years old and the fact that the parties are married and have entered into a compromise, are the adequate and special reasons. Therefore, although we uphold the conviction of the appellant but reduce the sentence to the period already undergone by the appellant. The appeal is disposed of accordingly. 26.2 Learned Advocate for the Appellant Accused has further relied upon the judgment of the Hon'ble Apex Court in case of Baldev Singh and Others vs. State of Punjab, (2011) 13 SCC 705 wherein in paragraph 4 and 5 the Hon'ble Apex Court has observed as under: “5. On the facts of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence already undergone in view of the proviso to Section 376 (2) (g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rupees 50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of the IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be given to the victim.” 27. Learned Advocate for the Respondent State has argued that considering the facts and circumstances of the case and the fact that the matter is settled between the parties, the court has discretion for awarding less sentence. In view of this, it is requested that just and appropriate order may be passed. 28. Learned APP has produced the jail remarks. On perusing the jail remarks, it is stated that the Appellant Accused has undergone 2 months and 2 days imprisonment during trial and the set off was given for that period. It is further stated that the Appellant Accused has undergone one month and 24 days imprisonment after his conviction. Therefore the total period he has undergone is 3 months and 26 days. 29. In view of the above, the Appellant Accused has been convicted for the offence punishable under Section 363 of IPC. Considering the facts of the case, this court has to decide what punishment is adequate. This court has considered the following circumstances for awarding sentence and fine: (a) That the Appellant was arrested and thereafter he was released on bail during trial. Considering the facts of the case, this court has to decide what punishment is adequate. This court has considered the following circumstances for awarding sentence and fine: (a) That the Appellant was arrested and thereafter he was released on bail during trial. (b) That after conviction the trial court taken him into custody. During the pendency of this Appeal, the Appellant was released on bail. (c) As per the jail remarks, the Appellant Accused remained in jail for a period of 3 months and 26 days. (d) The original complainant, victim and the present Appellant are of the same community and they have settled the dispute amicably. (e) At present, the Appellant and the complainant have good and harmonious relation with each other. (f) The incident took place on 17.11.2004 i.e. more than 15 years ago. (g) The punishment prescribed for the offence is imprisonment and fine. There is no minimum sentence prescribed under the law for the offence. 30. In view of the above discussion, the facts and circumstances of the case, I am of the view that the ends of justice shall be met in the case of sentence of imprisonment awarded by the learned Trial Court against the Appellant Accused be reduced to the period already undergone. Hence, the following final order: FINAL ORDER: (i) For the reasons recorded herein above, the present Appeal is partly allowed. (ii) The conviction order under Sections 366 and 376 of the IPC vide judgment and order dated 15.10.2005 passed the learned Sessions Judge and Presiding Officer of 5th Fast Track Court, Mehsana, in Sessions Case No. 104 of 2005 is hereby quashed and set aside. (iii) The conviction under Section 363 of the IPC under the impugned judgment and order is hereby confirmed and sentence is modified to the extent for a period already undergone and fine of Rs. 5000/-. It is noted that the fine of Rs. 5000/- has already been paid by the Appellant Accused on 15.10.2005. (iv) The bail bond stands discharged. (v) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (vi) R&P be sent back to the trial court forthwith.