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CR.A/2151/2006 1/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2151 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MURGANAD
@ LALLA VADVEL RAMASWAMI - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MS
SADHANA SAGAR for
Appellant(s) : 1,MR HEMANG R RAWAL for Appellant(s) : 1,
MR DC
SEJPAL APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 22/03/2010
ORAL
JUDGMENT
1. This
appeal is preferred under Section 374 of the Code of Criminal
Procedure, 1973 (for short, the Code ) against judgment and
order of conviction dated 28.09.2006 passed by the learned Additional
Sessions Judge, F.T.C. No.1, City Sessions Court, Ahmedabad City in
Sessions Case No.134 of 2006 by which, the learned Judge convicted
the appellant under Sections 363 and 366 of I.P.C. and sentenced for
R.I. of three years and fine of Rs.500/-, in default, S.I. for 10
days under each Section and under Section 376 of I.P.C. for R.I. of 7
years and fine of Rs.500/-, in default, S.I. of 10 days.
2. The
complaint was given by the mother of the victim before Amraiwadi
police station on 03.09.2005 which was registered as C.R.No.I-574 of
2005.
3. As
per the prosecution case, the victim was staying with her mother
Savitaben K Parmar near Jantanagar, Ramol road, Ahmedabad. The
date of birth of the victim as per school leaving certificate is
06.06.1990. On 01.09.2005, when the victim was going to Ashwamegh
High School on cycle, the appellant came in auto-rickshaw at
Gurukrupa school with his friend Bharat. The appellant and said
Bharat threatened the victim and asked her to sit in the rickshaw by
force. Thereafter, they went to Rabari Colony at the house of the
aunt of the appellant and stayed there on that day. On the next day,
the appellant and the victim went to the area-Sona-ni-Chal and
thereafter, went to Minawada, near Kathlal by
travelling in a passenger rickshaw with the other passengers. The
appellant then took the victim to Kalupur railway station and brought
ticket for Vadodara. Thereafter, they went to Surat and as the
arrangement could not be made for stay in Surat, they came to
Mehmadabad by train and went to the hut of the appellant’s friend.
The appellant committed sexual intercourse with the victim and also
administered threat to her. In view of the aforesaid facts and
circumstances, the mother of the victim lodged the said complaint. On
the strength of the complaint given by the mother of the victim, the
police visited the place of incident and prepared panchnama thereof.
Muddamal was recovered and sent to F.S.L. for detailed analysis and
panchnama to that effect was prepared. The victim and appellant were
taken for medical examination. The statements of witnesses from the
neighbourhood were recorded. On receiving the medical report, F.S.L.
report etc., the appellant was chargesheeted for the offence
punishable under Sections 363, 366 and 376 of the Indian Penal Code
in the Court of learned Judicial Magistrate First Class, Ahmedabad.
As the case was triable by the Sessions Court, the learned J.M.F.C.,
Ahmedabad made over the case to the Sessions Court under Section 209
of the Code which was numbered as Sessions Case No.134 of 2006. The
charge against the appellant was framed by the learned Sessions Judge
and the appellant pleaded not guilty to the charge levelled against
him.
4. The
prosecution has examined following witnesses in order to bring home
the guilt against the appellant.
P.W.
Name
of witness
Exh.
1.
Suresh
Vasantbhai
6
2.
Jagdish
Babubhai
7
3.
Victim
8
4.
Complainant-Savitaben
Keshavlal
9
5.
Mahendrabhai
Mahadevbhai
12
6.
Naresh
Shyambabu
13
7.
Dr.Bhavin
Shyamlal
14
8.
Prahladbhai
Shambhubhai
18
9.
Natwarbhai
Mansukhbhai
24
10.
Chaturbhai
Chaganbhai
25
11.
Jagdishbhai
Govindbhai
26
12.
Rampratap
Ramlal
27
13.
Ranjitsinh
Balusinh
28
14.
Dr.Reenaben
Kaushikbhai
29
15.
Rameshbhai
Manibhai
34
16.
Medical
officer Ravjibhai Valjibhai Damor
37
5. The
prosecution has produced documentary evidence such as, complaint
given by Savitaben vide Exh.38, report under Section 157 vide Exh.39,
Yadi sent to Ashwamegh school vide Exh.40, certificate given by
Ashwamegh school vide Exh.23, panchnama of seizure of clothes put on
by the victim vide Exh.41, panchnama of seizure of clothes put on by
the accused vide Exh.42, panchnama of seizure of rickshaw vide
Exh.43, certificate with regard to age of the victim vide Exh.17,
medical certificate of the victim vide Exh.32, medical certificate of
the accused vide Exh.52, muddamal sent to the F.S.L. and report
given by F.S.L. vide Exh.51, report given by civil hospital,
radiology department vide Exh.16, school leaving certificate of
Khokhra vide Exh.20, school leaving certificate given by Ashwamegh
school at Exh.21, extract of register of Ashwamegh school vide
Exh.22, xerox copy of birth certificate of victim vide Exh.11 and
entries made in the register with regard to date of birth of the
victim vide Exh.36 to the present case.
6. The
learned Judge considered the entire evidence on record of the case as
well as the oral deposition and documentary evidence on which
reliance was placed by the prosecution and held that the appellant
committed rape on the victim without her consent and, as the victim
was minor i.e. below the age of 16 years, the learned Judge imposed
sentence under Sections 363 and 366 of I.P.C. for R.I. of three years
and fine of Rs.500/-, in default, S.I. for 10 days under each Section
and under Section 376 of I.P.C. for R.I. of 7 years and fine of
Rs.500/-, in default, S.I. of 10 days. The learned Judge placed
reliance on the deposition adduced by the victim vide Exh.8 and
complainant vide Exh.9 and held that the deposition adduced by the
victim has been corroborated by the deposition of complainant
Savitaben Keshavlal vide Exh.9. PW.7-Dr.Bhavin Shyamlal has been
examined vide Exh.14 and PW.14-Dr.Reenaben Kaushikbhai, who has
examined the victim and gave certificate to her, has been examined
vide Exh.29 to the present case. Both the depositions given by
Dr.Bhavin and Dr.Reena further corroborate the prosecution case
indicating inextricable involvement of the appellant in the
commission of crime. The oral depositions adduced by the prosecution
witnesses are supported by the documentary evidence such as,
complaint given by Savitaben vide Exh.38, panchnama of seizure of
clothes put on by the victim and appellant vide Exhs.41 and Exh.42
respectively, report given by the hospital authority on examination
of the victim vide Exh.32, school leaving certificate of victim
produced at Exh.20 and xerox copy of the birth certificate of victim
vide Exh.11 produced to the present case. Thus, the learned Judge
held that considering the aforesaid aspect, the prosecution has
established the entire link connecting the appellant with the
commission of offence and, therefore, the learned Judge convicted the
appellant for the offence punishable under Sections 363, 366 and 376
of the Indian Penal Code.
7. Learned
advocate Ms.Sadhna Sagar for the appellant submitted that even on
perusal of the deposition adduced by PW.7-Dr.Bhavin vide Exh.14, age
of the victim shown therein is between 16 and 18 years and,
therefore, provisions of Section 375 of the Indian Penal Code would
not be attracted. The deposition of the victim and school leaving
certificate are not corroborated by the deposition of doctors and,
therefore, there is no positive evidence with regard to the age of 16
years of the victim on the date of incident. Therefore, she submitted
that considering the aforesaid aspect, the appellant deserves to be
acquitted forthwith. The learned Judge has committed error in not
appreciating the evidence in its true perspective while convicting
the appellant for the offence punishable under Sections 363, 366 and
376 of the Indian Penal Code. Considering the entire gamut of oral
deposition and documentary evidence, no case is made out against the
appellant and, therefore, the order passed by the learned Judge
suffers from infirmity and the same deserves to be quashed and set
aside and the appellant be set at liberty forthwith.
8. Learned
A.P.P. Mr.D.C. Sejpal, representing the respondent-State, submitted
that the prosecution has produced cogent and convincing evidence in
order to indicate involvement of the appellant in the commission of
offence. The prosecution has examined as many as 16 witnesses. The
victim has been examined vide Exh.8 and her deposition is supported
by the deposition of her mother-Savitaben vide Exh.9. The depositions
adduced by Dr.Reena at Exh.29 and Dr.Bhavin vide Exh.14, support the
versions given by the victim as well as complainant Savitaben. The
prosecution has also examined PW.8-Prahladbhai Shambhubhai vide
Exh.18, who has deposed in his testimony that the victim was born
on 06.06.1990 and the entries made in the register were also
produced vide Exh.22. The aforesaid aspect is supported by the school
leaving certificate issued by Ashwamegh school wherein, date of birth
of the victim has been mentioned as 06.06.1990. The school leaving
certificate of Khokhra school is also produced wherein, date of birth
of the victim is shown as 06.06.1990. Thus, considering the aforesaid
aspect as well as the medical papers which are produced in the
present case, the learned A.P.P. submitted that the victim, on the
date of incident, was below the age of 16 years and as the appellant
has committed offence of kidnapping and rape within the meaning of
Sections 363,366 and 376 of the Indian Penal Code, the learned Judge
has rightly convicted him for the said offence and no interference is
called for in the judgment and order rendered by the learned Judge
and as the appeal is devoid of merits, the same be dismissed.
9. Heard
learned advocate Ms.Sadhna Sagar for the appellant and learned A.P.P.
Mr. D.C. Sejpal for the respondent-State at length and in great
detail. I have considered the reasons assigned by the learned Judge
while convicting the appellant for the offence punishable under
Sections 363,366 and 376 of the Indian Penal Code. The prosecution
has, in order to bring home the guilt against the appellant, examined
16 witnesses. The victim has been examined vide Exh.8. She has
deposed in her testimony as to how and in what manner the appellant
induced her, took her from the lawful guardianship of her parents and
committed rape on her against her will and desire.
The deposition adduced by the victim is supported by the deposition
of complainant-Savitaben, who has been examined vide Exh.9 and her
own complaint at Exh.38. In order to prove age of the victim, the
prosecution has examined PW.8-Prahladbhai Shambhubhai vide Exh.18
wherein, he has deposed that the date of birth of the victim is
06.06.1990 and he has also made entries in the register. The
deposition adduced by Prahladbhai is supported by the leaving
certificate of Khokhra school vide Exh.20, certificate given by
Ashwamegh school vide Exh.21 as well as extract of general register
of Ashwamegh school vide Exh.22 produced in the present case. I have
also perused the depositions adduced by two doctors as well as the
certificate and F.S.L. report produced in the present case.
Considering the entire evidence on record, it becomes clear that date
of birth of the victim is 06.06.1990. The incident in question took
place on 01.09.2005. Thus, on the date of incident, the victim was
admittedly of 15 years and two months and, therefore, considering the
provisions of Section 375 of I.P.C., the learned Judge, in my view,
has rightly convicted the appellant for the offence punishable under
Sections 363,366 and 376 of I.P.C. The learned advocate for the
appellant placed reliance on the judgments rendered in case of
Rajasthan Public Service Commission V/s. Kaila Kumar Paliwal and Anr.
reported in AIR 2007 SC 1746 and in case of Arjun Singh V/s. State of
H.P. reported in 2009 Cri.L.J., 1332 in support of the submission
that if the consent is given by the victim then provisions of Section
376 of the Indian Penal Code cannot be attracted. However,
considering the overall evidence on record of the case and in view of
the clear provisions of Section 375 of I.P.C., I am of the view that
the learned Judge has rightly convicted the appellant and there is no
infirmity in the judgment rendered by him which calls for any
interference in the appeal preferred under Section 374 of the Code.
10. For
the foregoing reasons, there is no merit in the
appeal preferred by the appellant and the same is hereby dismissed.
Judgment and order of conviction dated 28.09.2006 passed by
the learned Additional Sessions Judge, F.T.C. No.1, City Sessions
Court, Ahmedabad City in Sessions Case No.134 of 2006
is hereby confirmed. The muddamal articles are to be disposed
of in terms of the order passed by the learned Judge.
(H.B.ANTANI,
J.)
Hitesh
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