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Gujarat High Court · body

2020 DIGILAW 327 (GUJ)

Rahubbhai Ganibhai Undra v. State of Gujarat

2020-02-20

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 05.11.2003 passed by the learned Additional Sessions Judge, Panchmahal, Camp at Dahod in Sessions Case No. 199 of 2001 (hereinafter be referred to as “the Trial Court”) whereby the learned Sessions Judge has held the appellants-accused guilty for the offences under Section 363 read with Section 114 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years for the offence punishable under Section 363 of the Indian Penal Code and fine of Rs. 500/- and in default to undergo further simple imprisonment of three months, accused No. 1-Rahubbhai Ganibhai Undra has filed Criminal Appeal No. 1361 of 2003, accused No. 2-Dineshbhai Nagjibhai Maliwad has filed Criminal Appeal No. 234 of 2004 and accused No. 3 has filed Criminal Appeal No. 2202 of 2004. 2. As all these criminal appeals having been arisen from the same judgment and order, all these appeals are heard together and are being disposed of by this common judgment by treating Criminal Appeal No. 1361 of 2003 as lead matter. 3. Brief facts of the prosecution case is that on fateful day i.e. on 21.05.2001, when the complainant along with her cousins namely Manjulaben Nansinh, Asmitaben Kalubhai, Surataben Jithabhai were in the market of Jhalod, at that time, at about 1.00 p.m. son of brother-in-law of her uncle, Dinesh Nagji and his maternal uncle Rajubhai came there and she was forcibly made to sit in rickshaw which was already there and, at that time, Dinesh covered her mouth by shawl and, thereafter, the rickshaw was taken towards Village: Sukhsar and due to some defect in the rickshaw near Village: Hadmat, though the complainant could not shout, Dinesh has slept her on her chin and at that time, she shouted and on hearing her shout, 2-3 persons from nearby residence came there and they have inquired from both the accused and rickshaw driver and the complainant has told everything to them. It is alleged that at that time, one police constable was coming from Village: Sukhsar and another police personnel came there and they have inquired about the incident. It is further alleged that at that time, the complainant has narrated everything to the police personnel. It is alleged that at that time, one police constable was coming from Village: Sukhsar and another police personnel came there and they have inquired about the incident. It is further alleged that at that time, the complainant has narrated everything to the police personnel. It is also alleged that the persons who came from nearby house were Chokhabhai Kalubhai Charel and Pratapbhai Surmabhai Charel. It is alleged that thereafter, all of them, were taken to Village: Sukhsar and they were also interrogated by the police and, thereafter, both the police personnel have gone to drop the complainant at Jhalod and, thereafter, when the police interrogating the accused, she came to know the names of the rickshaw driver. It is the contention of the complainant that accused Dinesh Nagji has forcibly taken her away with the help of his friends to marry her. On this ground, the complainant has filed the complaint being C.R. No. I-79/2001 before Jhalod Police Station for the offence under Sections 323, 363, 366 and 114 of the Indian Penal Code. After necessary investigation, the accused came to be arrested. 4. After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate First Class for the alleged offences and, thereafter, as one of the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it was registered as Sessions Case No. 199 of 2001. 5. The charge against the accused came to be framed by the Trial Court, vide Exhibit 2 for the aforesaid offence. The charge was denied by the accused. The accused pleaded not guilty to the charge and pleaded for trial. 6. To prove the case, the prosecution has examined the following witnesses:- PW-1 Kavitaben Parsingbhai Damor Complainant Exh.9 PW-2 Parsingbhai Havjibhai Damor Father Exh.11 PW-3 Javsingbhai Valabhai Bhabhor Police Constable Exh.12 PW-4 Kalubhai Badiyabhai Maliwad Panch Witness Exh.14 PW-5 Parsingbhai Punabhai Charel Panch Witness Exh.16 PW-6 Somabhai Lakhabhai Charel Panch Witness Exh.18 PW-7 Pratap Somabhai Charel Witness Exh.19 PW-8 Alkeshkumar Chandravadan Desai Witness Exh.20 PW-9 Surataben Javabhai Bhabhor Witness Exh.22 PW-10 Sanjaykumar Narandas Kalal Panch Witness Exh.23 PW-11 Rameshchandra Surpalbhai Damor Police Constable Exh.24 7. The prosecution has also produced the following documentary evidence:- S. No. Particulars Exhibit 1 First Information Report 10 2 Panchnama of scene of offence 15 3 Seizure panchnama of rickshaw 17 4 Bona-fide and Birth date Certificate 21 8. After closure of the evidence, the statements of the accused under Section 313 of the Criminal Procedure Code, 1973 came to be recorded, wherein also, the accused have denied of having committed any offence and stated that they have been falsely implicated in the alleged offence. 9. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has acquitted the accused from the charges leveled against them for the offence under Sections 323, 366 read with Section 114 of the Indian Penal Code, whereas, the accused have been convicted for the offence under Section 363 read with Section 114 of the Indian Penal Code and, ultimately, passed the order of sentence as referred to hereinabove. 10. Heard Mr. M.R. Bhukhari, learned advocate for Mr. S.K. Bhukhari, learned advocate for the appellants and Ms. Krina Calla, learned Additional Public Prosecutor for respondent-State at length. Perused the materials placed on record. 11. Mr. M.R. Bhukhari, learned advocate for Mr. S.K. Bhukhari, learned advocate for the appellants has submitted that the Trial Court has not considered the entire evidence on record in its proper perspective and committed serious error of facts and law in convicting the accused for the offence under Section 363 read with Section 114 of the Indian Penal Code. While inviting the attention of the Court to the depositions of the complainant as well as her companion and other witnesses, he has submitted that the prosecution has failed to prove the charge under Section 363 read with Section 114 of the Indian Penal Code against the accused. He has also submitted that at the relevant time, the complainant was major. According to him, from the version narrated by the complainant and her companion, it comes on record that the place, from where the accused have kidnapped the complainant, is a market area and there is heavy traffic and crowded area and on account of that, it was not possible to kidnap anybody from the market place. According to him, from the version narrated by the complainant and her companion, it comes on record that the place, from where the accused have kidnapped the complainant, is a market area and there is heavy traffic and crowded area and on account of that, it was not possible to kidnap anybody from the market place. According to him, considering the age of the victim, non-production of the birth certificate from the concerned Panchayat, no reliance can be placed on the school leaving certificate as the person, who has produced the same, has no personal knowledge. He has also submitted that when the Trial Court has acquitted the accused from the main offence under Section 366 of the Indian Penal Code, the evidence on record also not in a nature to held that the accused has committed the offence under Section 363 read with Section 114 of the Indian Penal Code. According to him, the victim has, voluntarily, joined the accused as there was no possibility of any kidnapping of a person from the market place where it was not possible to run away in rickshaw. According to him, the Trial Court has materially erred in convicting the accused for the offence under Section 363 read with Section 114 of the Indian Penal Code and, therefore, the impugned judgment and order of conviction and sentence is required to be interfered with and the same is required to be quashed and set aside. He has prayed to allow the appeals. 11.1 In the alternatively, learned advocate for the appellants has submitted that if the Court comes to the conclusion that the offence is proved against the accused, then, the sentence may be reduced to the extent that whatever sentence has been undergone by the accused may be treated as sufficient punishment and the appeals may be allowed to that extent. 12. Ms. Krina Calla, learned Additional Public Prosecutor for the respondent – State has vehemently submitted that the Trial Court has not committed any serious error of facts and law in convicting the accused and inflicting the sentence thereof. 12. Ms. Krina Calla, learned Additional Public Prosecutor for the respondent – State has vehemently submitted that the Trial Court has not committed any serious error of facts and law in convicting the accused and inflicting the sentence thereof. While referring to Section 361 of the Indian Penal Code, she has submitted that in this case, at the relevant time, the victim was aged of 17 years and as she was below 18 years, even if she has gone with accused as her own willingness, in that case also, such willingness of victim cannot be treated as consent of the guardian. Therefore, the accused are deemed to have been committed the offence under Section 363 of the Indian Penal Code. She has submitted that the defence of the accused that the victim has voluntarily gone with them, has no basis, as at the relevant time, the victim was below the age of 18 years. She has submitted that had the rickshaw was not stopped at Village: Hadmat, the accused might not have been arrested and there is consistence facts reveals from the evidence that the accused have taken away the victim without consent of her guardian and in view of this fact, the Trial Court has properly appreciated the evidence and has convicted the accused for the said offence. She has submitted that the impugned judgment and order is sustainable in the eyes of law and does not warrant any interference. She has prayed to dismiss the present appeals. 13. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 14. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 14. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 15. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 16. On perusal of the evidence of Kavitaben Parsingbhai Damor, PW-1 at Exhibit 9, it transpires that she has deposed in her evidence that before two years of the deposition, she went to the market of Jhalod for grinding of the corns and at that time, Manjula, Surata and Asmita, who were her friends, were with her and they all had gone to the market. She has deposed that at that time, Raju, Dinesh and one rickshaw driver came behind them in rickshaw and, thereafter, she was forcibly taken by Dinesh and her mouth was closed with shawl and, thereafter, they ran away from the place in rickshaw to Village: Hadmatand the rickshaw stopped and at that time, the police personnel came there and, thereafter, she was brought to Village: Sukhsar and, then, the police personnel have dropped her at Jhalod. She has deposed that she has filed her complaint before the concerned Police Station. She has deposed that she has filed her complaint before the concerned Police Station. She has deposed that she does not know why the persons have kidnapped her. She has identified the accused in the Court. 16.1 During her cross-examination, she has stated that she did not know as to the relationship of the accused Dinesh with her uncle and even she did not know as from to which village the accused Dinesh was hailing and she also did not know as to from which village the accused Raju was hailing. According to her, she was not knowing Dinesh and Raju from the very beginning. She has deposed that there is rickshaw stand in the vicinity of Vaswada of Jhalod and there are many shops on both sides of the road. Further, according to her version, there is a weekly market organized, then the people came in the market from nearby villages and it is very difficult for the people to pass through such market. She has admitted that on the date of incident, there was weekly market. She has deposed that when they reached at Village: Hadmat, she herself has removed shawl from her mouth. She has narrated that when she was taken in rickshaw her friends Manjula, Surata and Asmita have raised shout but nobody gathered there nor anybody has tried to stop the rickshaw. She has deposed that when they reached at Village: Hadmat, the police personnel came and, thereafter, the police brought them to Village: Sukhsar. She has deposed that the police has not asked her and accused as to where they were going. She has specifically deposed that when they reached at Village: Hadmat, as the police personnel came there, she was crying and, thereupon police personnel have inquired from her. According to her version, when the police brought her to Village: Sukhsar she remained there at about one and half hours and she has lodged her complaint at Village: Sukhsar and Jhalod. She has deposed that she has lodged her first complaint at Village: Sukhsar, whereas, she reached Jhalod at 6.00 p.m. She has deposed that when she reached at Jhalod Police Station, at that time, her parents, uncle and other persons were arrived there. She has deposed that she has lodged her first complaint at Village: Sukhsar, whereas, she reached Jhalod at 6.00 p.m. She has deposed that when she reached at Jhalod Police Station, at that time, her parents, uncle and other persons were arrived there. She has deposed that her uncle has given the names of the accused and, therefore, she has given the names of the accused as per the say of her uncle. She has deposed that the shawl, by which her mouth was covered, was seized by the police. However, she did not know as to whether the panchnama was prepared or not. She has denied the suggestion that the accused were going in rickshaw and she herself voluntarily sited in the rickshaw. She has also denied the suggestion that at the instance of her uncle, she has filed the false complaint against the accused. 17. On perusal of the evidence of Parsingbhai Havjibhai Damor, PW-2 at Exhibit 11, it reveals that he is father of the complainant and has deposed that at the time of incident, the age of his daughter was 15 years and he has not gone to admit her in school, but, his daughter has, voluntarily, gone to the school for admission. He has deposed that when the incident took place, he was in his in-laws’ village and, the police constable informed him about the incident. 17.1 In his cross-examination, he has deposed that he has studied upto 8th standard and he did not remember regarding the fact of his marriage. He has deposed that there is Talati in his village and he has registered the birth of his children. He has shown his ignorance as to when the complainant has left the school. He has deposed that he got married his daughters namely Lalita and the complainant. He has deposed that his in-laws’ village is Garadu, Taluka: Jhalod. He has deposed that the distance between Village: Anvarpura and Village: Garadu is about 4 kilometers. He has deposed that police person came to inform him between 12.00 to 1.00 in the noon and he came at his Village: Anvarpura, and thereafter, the police left and, thereafter, his family members went to Village: Garadu to inform him. 17.2 He has deposed that he reached at Jhalod Police Station at about 3.00 p.m. and at that time, his brother Tansing, Lalubhai Jetabhai had gone there. 17.2 He has deposed that he reached at Jhalod Police Station at about 3.00 p.m. and at that time, his brother Tansing, Lalubhai Jetabhai had gone there. He has deposed that they met police constable in Jhalod Police Station. He has deposed that the police of Jhalod Police Station has informed him that his daughter was at Village: Sukhsar and they brought her from there. He has deposed that they have talked with police constable regarding the incident. At one breathe, he has deposed that accused Dinesh is not relative of his brother Tansing, but on the next moment, he has stated that accused Dinesh is relative of his brother Tansing. He has admitted that he was knowing accused Dinesh since many years. He has deposed that he was not knowing Raju prior to the incident. It is his version that his daughter i.e. complainant was brought to Jhalod Police Station from Village: Sukhpar at about 5.00 p.m. to 5.30 p.m. and, thereafter, the statements were recorded which includes the statement of the complainant. He has denied the suggestion that when the accused were in rickshaw, at that point of time, the complainant has, on her own volition, sited in the rickshaw and as he was not liking their relation, a false complaint came to be lodged. 17.3 He has deposed that at the time of incident, accused Dinesh and Raju were in drunken condition and accused No. 3 Rahub Ganibhai was the rickshaw driver and, he was plying rickshaw on rent in Jhalod. He has deposed that he has not produced any birth certificate regarding the age of the victim. 18. On perusal of the evidence of Javsingbhai Valabhai Bhabhor, PW-3 at Exhibit 12, it reveals that he is policeman, who was on patrolling, at the relevant time, has deposed that when he was coming from Village: Sukhsar to Village: Hadmat during his patrolling, at that time, writer Narvat Koyabhai was also with him and when they were coming from Village: Sukhsar to Village: Hadmat, at that time, near the Hadmat Bus Stand, under the beneath of neem tree, one rickshaw was standing and there was mob and they were shouting and due to that they stopped there. He has deposed that one girl and two boys were there and all the three were in the rickshaw. He has deposed that one girl and two boys were there and all the three were in the rickshaw. He has deposed that he has interrogated her and she has narrated that she along with her companion were in the Vora market, out of them, she was compelled to sit in rickshaw and at that time, the girl was crying. It is his version that thereafter, he brought all the three at Sukhsar Police Station and he has asked the names of the accused. He has deposed that thereafter, after bringing them at Village: Sukhsar, he informed the Jhalod Police Station and, thereafter, he handed over the custody of the accused to Jhalod Police, by taking them in jeep at Jhalod Police Station. 18.1 During his cross-examination, he has deposed that the distance between Village: Jhalod and Village: Hadmat is about 12 kilometers, whereas, the distance between Sukhsar to Hadmat is 7 kilometers. He has deposed that generally, there was traffic on the road between Village: Jhalod to Village: Hadmat. He has deposed that there is a weekly market held in Jhalod Village and on that day, the public from nearby villages were coming there and due to that there was heavy traffic in the market. He has deposed that when they reached near neem tree, four to five persons were standing there including one girl and two boys and from there, the bus stand of Village: Hadmat is at a distance of 100 meter away. He has deposed that there were residential premises between the neem tree and the bus stand. He has deposed that when he reached near the rickshaw, the girl was comfortable. He has deposed that he had interaction with the persons of crowd. He has deposed that after hearing everything, he sent all of them in Jeep to Village: Sukhsar. He has deposed that he has seen the accused for the first time at the place of incident and earlier he was not knowing them. He has deposed that he has informed the girl to lodge the complaint and, therefore, he sent her to Jhalod Police Station and he himself has gone to the Jhalod Police Station at 4.30 p.m. At that time, Police Inspector, Jhalod Police Station was present in the Police Station. He has deposed that he has informed the girl to lodge the complaint and, therefore, he sent her to Jhalod Police Station and he himself has gone to the Jhalod Police Station at 4.30 p.m. At that time, Police Inspector, Jhalod Police Station was present in the Police Station. He has deposed that he has narrated fact regarding happening of the incident in the village to the Police Sub Inspector and he handed over the accused to him and instructed the girl to file the complaint. He has deposed that the P.S.O. has recorded the complaint as per the version made between complainant and the Police Sub Inspector and, thereafter, the signature of the complainant was taken. He has deposed that he was remained there at half an hours in the Police Station and his statement was recorded during the investigation. 18.2 He has admitted that he has not narrated the facts in the Police Station that the rickshaw was lying under the neem tree at Village: Hadmat where there was a crowd of persons standing nearby and due to shouting, he rushed there. He has admitted that he has not narrated in his statement that while interrogating the girl, he has told that when she was in Vora market with her companion, she was forced to sit in the rickshaw. He has admitted that if one has to come from Village: Jhalod to Village: Hadmat, he has to pass through vehicular traffic. 19. On perusal of the evidence of Kalubhai Badiyabhai Maliwad, PW-4 at Exhibit 14, it appears that he has deposed in his evidence that he was called by the police constable, Jhalod and obtained his signature on the panchnama of the scene of offence which is produced at Exhibit 15 and at that time, one Sanjay was present and except him, nobody was present. He has denied that the said panchnama was prepared in his presence and, therefore, he has been declared hostile by the prosecution and he has been, thoroughly, cross-examined by the prosecution. However, in such cross-examination, he has not supported the version of the prosecution. On reading of the panchnama at Exhibit 15, it reveals that another panch namely Sanjay was present. 20. However, in such cross-examination, he has not supported the version of the prosecution. On reading of the panchnama at Exhibit 15, it reveals that another panch namely Sanjay was present. 20. On perusal of the evidence of Parsingbhai Punabhai Charel, PW-5 at Exhibit 16, it appears that he has not supported the basic version of the prosecution that the panchnama at Exhibit 17 was prepared in his presence and the fact that one Chokhabhai Kalubhai has produced the rickshaw and the panchnama thereof was prepared in his presence. As he has not supported the version of the prosecution he has been declared hostile by the prosecution and he has been cross-examined, thoroughly, by the prosecution. In such cross-examination also, he has not supported the case of the prosecution. 21. On perusal of the evidence of Somabhai Lakhabhai Charel, PW-6 at Exhibit 18, it appears that in his evidence, he has deposed that the police has called him at Village: Hadmat where rickshaw was lying in his house and the police has taken away the rickshaw and the panchnama was prepared in his presence. 22. On perusal of the evidence of Pratapbhai Somabhai Charel, PW-7 at Exhibit 19, it appears that he has deposed in his evidence that the incident took place before two years and at that time he was in his house. According to him, the incident took place between 11.00 to 12.00 hours and the rickshaw was standing near his residence and upon shouting by one girl, he rushed to there and found that there were three male persons and one girl in the rickshaw. It is his version that when he reached there, one girl came out from the rickshaw and, thereafter, police came there. According to him, thereafter, the police took away the girl and all the male persons with them. He has identified the accused in the Court. 22.1 During the cross-examination on behalf of the accused, he has stated that his house is on Santrampur-Jhalod Road and besides his house, one house was situated wherein Chokhabhai was residing. He has deposed that the road which is passing near his house is a public road and the buses, rickshaws etc. are plying. He has deposed that the rickshaw was standing on the road, but not under the neem tree. He has deposed that the road which is passing near his house is a public road and the buses, rickshaws etc. are plying. He has deposed that the rickshaw was standing on the road, but not under the neem tree. According to him, the neem tree is almost 15 meters away from where rickshaw was standing and the bus stand is 500 meters away from where the rickshaw was standing. He has deposed that the distance between his house and the rickshaw was just 50 to 75 meters. He has denied the suggestion that he has not narrated before the police that the incident took place between 11.00 to 12.00 hours in the noon. He has further deposed that he did not remember as to whether he has stated before the police that the rickshaw was standing near his house and the girl was shouting and, therefore, he had gone there. 23. On perusal of the evidence of Alkeshkumar Chandravandan Desai, PW-8 at Exhibit 20, it appears that he has deposed in his evidence that he was serving in Maniben Keshavlal Desai High School, Jhalod as Clerk and has produced the copy of the general register of birth of the victim. According to him, the birth date narrated therein is 11.06.1983. He has deposed that as per the record, earlier, she was studying in Anvarpura Primary School. 23.1 During his cross-examination on behalf of the accused side, he has deposed that the birth date written in the record of High School was based on the school leaving certificate issued by the earlier school. He has deposed that in the primary school, there is no insistence of birth certificate of the Gram Panchayat, but in another school, the entry is made on the basis of the school leaving certificate. 24. On the perusal of the evidence of Surataben Jithabhai Bhabhor, PW-9 at Exhibit 22, it appears that she has deposed in her evidence that at the time of incident, she along with the complainant, Manjula and Asmita were with her in the market of Jhalod and the incident has happened at 4.00 p.m. According to her, three persons came in rickshaw and they kidnapped the victim. She has deposed that she did not recognize them at the relevant time and, therefore, she cannot identify the accused in the Court. She has deposed that she did not recognize them at the relevant time and, therefore, she cannot identify the accused in the Court. 24.1 During her cross-examination, she has stated that when she went to the market, it was weekly day for market which was in Vora market and at that time, there was crowd in the market. She has denied the suggestion that when the rickshaw came, the victim herself has sit in the rickshaw. She has deposed that the police has not recorded her statement. She has stated that the entire police proceedings were taken out by the victim’s father. 25. On perusal of the evidence of Sanjaykumar Narandas Kalal, PW-10 at Exhibit 23, it appears that he has deposed in his evidence that Jhalod police has called him in Vora market at Jhalod wherein the panchnama was prepared which is at Exhibit 15 and he has put his signature in the panchnama. 25.1 During his cross-examination, he has deposed that he did not remember the name of the girl. He has deposed that the panchnama was dictated by the police and it was being written by another police. He has deposed that there were many shops on both sides of the road and there were crowd of the people at the time of incident and if anybody is forcibly taken into rickshaw then it will be difficult to go through such traffic. He has deposed that if anybody raises shout at that place then almost 200-500 people will gather there and the vehicle can be seized, at any time. He has deposed that there is also police point near the Bus Stand of Jhalod. He has deposed that on the date of incident as he was doing his business he has not seen the incident. 26. On perusal of the evidence of Rameshchandra Surpal Damor, PW-11 at Exhibit 24, it appears that he has deposed in his evidence that on 21.05.2001, he was serving as head constable at Jhalod Police Station, at that time, the investigation of FIR being C.R. No. I-79/2001 was handed over to him. He has deposed that thereafter, he prepared the panchnama of the scene of offence and recorded the statement of the police constable of Village: Sukhsar, who has arrested the accused and also recorded the statement of other police constables and witnesses thereof. He has deposed that thereafter, he prepared the panchnama of the scene of offence and recorded the statement of the police constable of Village: Sukhsar, who has arrested the accused and also recorded the statement of other police constables and witnesses thereof. He has deposed that as the accused were caught hold, they were arrested and he has prepared the panchnama of the rickshaw and got the birth certificate from Maniben High School, Jhalod of the complainant. According to him, having found sufficient evidence, he has filed the charge-sheet before the concerned Court. 26.1 During his cross-examination, he has stated that the offence has been registered at 20.30 hours at Jhalod Police Station on 21.05.2001, whereas, the accused were arrested at 22.15 hours. According to him, the accused were brought by the P.S.O. Sukhsar Police Station. He has deposed that the police constable of Sukhsar brought the accused at Jhalod Police Station at about 20.30 hours. He has deposed that when the complaint was registered, he was not present at Jhalod Police Station. He has deposed that when he received the message of the complaint being handed over to him for investigation, he reached the Police Station at 20.45 hours. According to him, when he reached Jhalod Police Station, the accused were not in the Police Station as well as the complainant was also not present. He has further stated that during his investigation, he has not recorded further statement of the complainant. He has admitted that he has not recorded the statement of the owners of the shops which are situated in Vora market, Jhalod. He has deposed that it was not revealed during his investigation that the girls came for grinding the corns. He has admitted that the place of occurrence is an open market and there is having heavy traffic point and if anybody shouts for help, then, the rickshaw could not move up ahead and it would stop. He has deposed that during his investigation, he has tried to get the birth certificate of the victim from the Gram Panchayat but Talati did not meet him. He has deposed that he did not try to get the birth certificate from earlier primary school where the complainant was studied. He has deposed that he has not given in writing to the Talati for forwarding the birth certificate of the victim. He has deposed that he did not try to get the birth certificate from earlier primary school where the complainant was studied. He has deposed that he has not given in writing to the Talati for forwarding the birth certificate of the victim. He has deposed that he has not seized any shawl during the investigation. According to him, he has recorded the statements of two police personnel on the same day, whereas, the statements of other witnesses were recorded on the next day. He has also deposed that accused No. 3 was plying rickshaw on rental basis. 27. Now, on perusal of the evidence as well as re-appreciation of the entire evidence on record, it is clearly found that there is consistent in evidence on record that the alleged incident of kidnapping has taken in the market place where there was a crowd and there are shops on both sides of the road. It is come on record that if someone is forced to sit in the rickshaw and he/she raises shout then many persons might come to rescue that fellow and even the rickshaw could not move from the place. It also reveals from the record that at the time of incident the other three girls accompanied the complainant. It reveals from the evidence of police personnel, who was, initially, reached at the place where the rickshaw was standing at Village: Hadmat, some people were there along with the girls and the accused persons were standing. It also reveals that according to police witness, when he reached near the rickshaw, the girl i.e. victim was in comfortable mood. 28. It is also borne out from the evidence on record that the complainant was interrogated, Village: Hadmat and she has narrated everything to the police personnel. Thus, the first information was given to the concerned police at Village: Hadmat, but that fact has not been reduced in writing at the relevant time. It also reveals from the evidence of the friend of the complainant that the entire complaint was being narrated by the victim’s father. It also appears from the evidence that the complainant has given name of accused at the instance of her uncle. 29. It also reveals from the evidence of the friend of the complainant that the entire complaint was being narrated by the victim’s father. It also appears from the evidence that the complainant has given name of accused at the instance of her uncle. 29. Now, so far as the age of the victim is concerned, as per the evidence of Alkeshkumar Chandravadan Desai, PW-8 at Exhibit 20, he has produced the bona-fide and birth certificate wherein the age of the victim is shown as 11.06.1983. However, no evidence is collected from the Village Panchayat by the Investigating Officer. The Investigating Officer, in his evidence, has, also categorically, stated that he has approached the Talati of the village. But at the same time, he has admitted that he has not addressed any requisition to the Talati for the birth certificate of the victim. If this Court considers the birth date of the victim as 11.06.1983, considering the date of happening of the incident i.e. 21.05.2001, then, on the date of the incident the age of the victim would come to 17 years 11 months and 10 days, which shows that she was to reach at the age of 18 years within 20 days of the incident. It is an admitted fact that the birth certificate from the school is based on the school leaving certificate of the previous school where she was studied in primary education. Now, the victim’s father in his deposition has categorically stated that he has registered the birth date of his all children before Village Panchayat. Thus, the real date of birth of the victim could have been proved by the prosecution by producing the certificate from Talati of the Village Panchayat. However, in this case, no such exercise has been carried out by the prosecution. As such, though primary evidence was available with the prosecution yet no primary evidence has been produced by the prosecution and the evidence produced regarding birth date is based on the birth date record in the previous school. 30. At this juncture, it is pertinent to note that as per the version of the complainant’s father, he has not gone to the school for admitting his daughter and his daughter has admitted herself in the school. 30. At this juncture, it is pertinent to note that as per the version of the complainant’s father, he has not gone to the school for admitting his daughter and his daughter has admitted herself in the school. It is also pertinent to note that the victim’s father has narrated that at the time of incident, the age of victim was only 15 years. However, in view of the birth certificate produced on record, the father has narrated false age of the victim. It is also pertinent to note that the victim in her evidence, which was recorded on 15.09.2003, has categorically stated that the incident has happened before two years. Now, on perusal of her deposition, it appears that while taking oath, she has narrated her age as 20-25 years. Thus, this fact also suggests that at the relevant time, the age of the victim might be 18 years or more. There is no cogent or reliable evidence on record to suggest that the victim was minor. It is also pertinent to note that on considering the evidence of the victim as well as her friends and the police witness, it transpires that considering the situation of the market where many persons are coming from nearby villages and there is always crowd on the weekly market and no one can run away from the place in vehicle and if somebody shouts then many people would gather there and can stop the vehicle immediately, then the conduct of the victim suggests that she might have with her own volition went in the rickshaw. At this stage, it is pertinent to note that the defence has put up their defence that the victim has at her own volition set in the rickshaw, has been raised in the cross-examination of the witnesses. Of course, the witnesses have denied such facts. However, considering the conduct of the complainant as well as her friends and the police witnesses, it is crystal clear that no cogent primary evidence regarding her birth date is produced by the prosecution and in view of that fact, the evidence on record, is not sufficient to connect the accused with the alleged crime and the benefit of doubt is required to be extended to the accused. 31. 31. It is pertinent to note that so far as accused No. 3 is concerned, he was merely a driver of the rickshaw and he is plying the rickshaw on rental basis as has been narrated by eye witnesses and the police witnesses. As such the driver ought not to have joined as an accused, but he would have been better witness for the prosecution to prove the guilt against the remaining accused. Be that as it may. 32. Considering the entire evidence on record, it appears that the prosecution is unable to prove the case under Section 363 read with Section 114 of the Indian Penal Code against the accused beyond reasonable doubt. On re-appreciation of the entire evidence on record, it reveals that the benefit of doubt is required to be extended to the accused. On perusal of the impugned judgment and order, it appears that the aforesaid facts have not been considered by the Trial Court and, therefore, the impugned judgment and order is deserves to be quashed and set aside and the accused are deserves to be acquitted from the charges leveled against them for the offence under Section 363 read with Section 114 of the Indian Penal Code on the principles of benefit of doubt. 33. In view of the above, the present appeals are allowed. The impugned judgment and order dated 05.11.2003 passed by the learned Additional Sessions Judge, Panchmahal, Camp at Dahod in Sessions Case No. 199 of 2001 is hereby quashed and set aside. The appellants-original accused are acquitted, on the principles of benefit of doubt, from the charges levelled against them for the offence under Section 363 read with Section 114 of the Indian Penal Code. Fine, if any, paid by the appellants-original accused be refunded to them. Bail bond stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.