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Gujarat High Court · body

2020 DIGILAW 20 (GUJ)

State Of Gujarat v. Manubhai Bichhubhai Kathi

2020-01-08

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

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JUDGMENT : R.M. Chhaya, J. 1. This appeal is directed against the judgment and order of acquittal dated 30.09.1996 passed by learned Additional Sessions Judge, Bhavnagar camp at Mahuva, in Sessions Case No.30/1995 under Section 378 of the Code of Criminal Procedure (hereinafter referred to as the “Code” for short) only qua the respondent–original accused No.1, whereby the learned trial Court acquitted the respondent from the offence 363, 366, 376, 506(2) and 114 of the Indian Penal Code. 2. The following noteworthy facts emerge from the record of the appeal : 2.1 The case of the prosecution is that, on 10.04.1994 at about 11:30 in the night hours, the accused persons abducted the prosecutrix viz. Nayanaben, who was minor at that time, from the custody of her guardians and thereby, all the accused (total four accused persons) committed an offence of Section 363 read with Section 114 of the Indian Penal Code. 2.2 It is further the case of the prosecution that, original accused No.1 with an intention to force the prosecutrix to marry him and to commit intercourse without her consent, abducted the prosecutrix with the help of other accused and thus, the accused committed an offence under Sections 363, 366, 376, 506(2) read with Section 114 of the Indian Penal Code. 2.3 Pursuant to the said same, FIR was lodged by Jayaben Gokalbhai, who was sister-in-law (Bhabhi) of the prosecutrix, investigation was carried out and ultimately, the charge-sheet came to be filed before the jurisdictional Magistrate against the accused persons. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Cr.P.C. committed the said case to the Court of learned Additional Sessions Judge, Bhavnagar camp at Mahuva, which came to be numbered as Sessions Case No.30/1195. Since, the accused did not plead guilty and claimed to be tried, they were tried for the offences; 2.4 At the trial, in order to bring home the charges levelled against the accused, the prosecution examined 11 witnesses and also relied upon the documentary evidence such as Medical papers, injury certificate, in particular. Since, the accused did not plead guilty and claimed to be tried, they were tried for the offences; 2.4 At the trial, in order to bring home the charges levelled against the accused, the prosecution examined 11 witnesses and also relied upon the documentary evidence such as Medical papers, injury certificate, in particular. 2.5 At the end of the trial and after recording the statement of the accused under Section 313 of Cr.P.C. and upon hearing the arguments on behalf of the prosecution and the defence, the learned trial Court acquitted present respondent – original accused No.1 from the offence under Sections 363, 366, 376, 506(2) and 114 of the Indian Penal Code, vide impugned judgment and order of acquittal dated 30.09.1996 in Sessions Case No.30/1995, as mentioned above; 2.6 Being aggrieved by the same, the appellant–State preferred present appeal under Section 378 of the Code of Criminal Procedure against original accused No.1 considering him to be the main accused. 3. Heard Mr. Mitesh Amin, learned Public Prosecutor assisted by Mr. Hardik Soni, learned Additional Public Prosecutor and Mr. Madansingh Barod, learned counsel for the respondent – original accused No.1. 4. Learned Public Prosecutor has taken this Court through the evidence recorded by the learned trial Court as well as the injury certificate at Exh:11. Mr. Amin, contended that the prosecutrix PW: 8 viz. Nayanaben Narshibhai, who has examined at Exh:57 has clearly deposed before the learned trial Court that, without her consent, the respondent has committed rape on her not once, but as per the statement, at least more than three times. He further contended that, learned trial court has also committed an error in coming to the conclusion that the age of the prosecutrix is between 22 to 25 years even though the school leaving certificate clearly indicates that the age of the prosecutrix on the date of offence was less than 18 years. It was also contended that, the element of consent is totally absent and the deposition of the prosecutrix can be made the basis of conviction without there being any corroboration whatsoever. It was also contended that, the element of consent is totally absent and the deposition of the prosecutrix can be made the basis of conviction without there being any corroboration whatsoever. He further submitted that, there is no reason to disbelieve the version of the prosecutrix and even considering the FSL report at Exh:71 and so also the deposition of PW:3 Vasant Kumari, Medical Officer, who was examined at Exh:47, it clearly appears that the version of the prosecutrix is supported by the medical evidence itself. Referring to the deposition of PW:10 (Investigating Officer), it was contended that the learned trial Court has not properly appreciated the evidence on record and therefore, the order of acquittal is an obvious error and misreading the evidence on record. It was also contended that the learned trial Court has relied upon the materials, which are not germane and the learned trial Court has wrongly disbelieved the version of the prosecutrix. It was also contended that, the prosecutrix has been able to prove the motive behind the offence beyond doubt and therefore, the order of acquittal deserves to be reversed in exercise of appellate jurisdiction of this Court under Section 378 of the Code by allowing this appeal and pass appropriate order of conviction and sentence against the respondent–original accused No.1. 5. Per contra, Mr. Madansingh Barod, learned counsel for the respondent contended that, even if, the deposition of prosecutrix is taken into consideration, conduct of the prosecutrix itself shows that there was a placid consent between the prosecutrix and the respondent. Referring to the depositions of prosecutrix as well as PW:9 Dilipbhai Narshibhai (brother of the prosecutrix), whereby, the respondent has been attempted to be connected with the alleged offence, is not believable at all. He further contended that the statement of the prosecutrix on the contrary goes to show that she voluntarily came with the respondent and that too on her own wish and consent and with approval of her brother namely Dilipbhai Narshibhai. Referring to the deposition of the prosecutrix, it appears that even according to the deposition of the prosecutrix, it was her brother, who took the respondent and prosecutrix together on his motorcycle. According to learned counsel for the respondent, said fact would lead to only one conclusion that no offence is committed by the respondent and the respondent has been wrongly involved in the present offence. According to learned counsel for the respondent, said fact would lead to only one conclusion that no offence is committed by the respondent and the respondent has been wrongly involved in the present offence. He further contended that the learned trial Court has correctly appreciated the evidence on record and has committed no error in recording the order of acquittal against respondent No.1 as well as other accused. Referring to the deposition of PW:3 viz. Dr. Vasant Kumari, it was contended that injury certificate issued by said witness, who had examined the prosecutrix after the FIR was lodged, on the contrary goes to shows that intercourse was committed just before five hours considering the physical situation on the body of the prosecutrix. He further contended that as per the medical evidence on record, the age of the prosecutrix was not 16 years, but 22 to 25 years. Even if, the school leaving certificate is taken into consideration, the age of the prosecutrix was admittedly more than 16 years and referring to para 12 of the deposition of the prosecutrix, Mr. Barod contended that element of consent is clearly proved by the accused even from the statement of the prosecutrix herself. On the aforementioned grounds, it was contended that the learned trial Court has committed no error in recording the order of acquittal. Mr. Barod, learned counsel for the respondent on the afore-stated grounds, submitted that, present appeal being merit-less, deserves to be dismissed. No other or further submissions have been made by learned counsel for both the sides. 6. We have considered the submissions and have also considered the evidence on record. At the outset, it deserves to be noted that as per the FIR at Exh:76, there were four accused in the present case and all four have been acquitted, whereas present appeal has been filed against respondent No.1. Further, Pws:5, 6 and 7 have turned hostile. Considering the deposition of PW:4 Bhikharam (School Teacher), who was examined at Exh:50, date of birth of the prosecutrix as recorded in the school register was 01.06.1976 and therefore, on the date of offence i.e. 10.04.1994, the prosecutrix was 19 years old. The prosecutrix has been examined at Exh:57, in her examination-in-chief, she narrated the manner in which the offence was committed. The prosecutrix has been examined at Exh:57, in her examination-in-chief, she narrated the manner in which the offence was committed. However, it deserves to be noted that, in her examination-in-chief, it is stated by the prosecutrix that she was taken to the field by her brother and she was informed that she has to stay at the field. Her examination-in-chief itself further indicates that she was taken to another field by the respondent on his motorcycle where she prepared food (rotla). It was also narrated by the prosecutrix that during the night time, her brother left the field and recommended to the respondent to see that the prosecutrix is not abused in any manner. Further narration also indicates that on her refusal, the respondent did not commit any intercourse on that night. Even if, further examination-in-chief is taken into consideration, the same narrates that the prosecutrix voluntarily went to the house of the respondent, stayed there overnight and again went to the field with the respondent and at that moment, the police intercepted them. Even in her cross-examination, it is noteworthy that she has admitted the fact that in the field where she was taken by the respondent, many other persons were working and she did not make any complaint to anybody. She has also denied the fact that the respondent used to leave her alone and go to the town. Further noteworthy fact which can be culled out from the cross-examination of the prosecutrix comes out from para 12 of the said deposition. The said version of the prosecutrix in a nutshell indicates that she stayed freely with the respondent in the field where she went out and answered natural call and to take bath. 7. Considering the deposition of the prosecutrix as a whole and even if, the age of the prosecutrix is considered as per the school leaving certificate, the prosecution has not been able to prove beyond doubt the offence under Sections 363, 366 and 376 of Indian Penal Code. Conduct of the prosecutrix even as per her statement on the contrary shows that what was done on the date of the offence, was with her consent and willingness. Conduct of the prosecutrix even as per her statement on the contrary shows that what was done on the date of the offence, was with her consent and willingness. As per the law, the prosecutrix was aged more than 16 years and therefore, the reasons which are recorded by the learned trial Court are based on correct interpretation of the evidence on record and the learned trial Court has committed no error in recording the order of acquittal. Even if, other piece of evidence including the FSL report at Exh : 71 is taken into consideration, the same does not take the case of the prosecution any further. Upon examining the deposition of the complainant Jayaben (Bhabhi of the prosecutrix) at Exh: 16, it clearly borne out that the prosecutrix was taken by her brother i.e. PW: 9 Dilipbhai narshibhai on his motorcycle. As far as other version of the prosecution witness is concerned, she is not an eyewitness and the prosecution has not been able to cull out anything contrary against the respondent. 8. Upon further examining the observations made by the learned trial Court, we find that the learned trial Court has rightly appreciated the evidence of PW: 3 Dr. Vasant Kumari, who was examined at Exh:47 and the evidence of PW: 9 Dilipbhai Narshibhai (brother of the prosecutrix), who was examined at Exh:58. Even considering the evidence of PW: 10 Investigating Officer, who was examined at Exh: 59, the same does not in any manner be considered as any further proof and thus, the prosecution has failed to prove the offence alleged against the respondent herein. Therefore, we find that the learned Sessions Court has rightly appreciated the evidence as a whole and has rightly acquitted the accused and therefore, the learned Sessions Court has committed no error in passing the impugned judgment and order of acquittal. 9. In totality of the facts, this Court is of the opinion that no different view needs to be taken in exercise of appellate jurisdiction of this Court under Section 378 of the Code of Criminal Procedure. 10. For the foregoing reasons, present appeal is liable to be dismissed and is hereby dismissed. Bail bond stands cancelled.