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CR.A/947/1994 10/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 947 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
HIRALAL
BABULAL DHOBI - Appellant(s)
Versus
STATE
OF GUJ - Opponent(s)
=========================================================
Appearance
:
MR
DM AHUJA for
Appellant(s) : 1,
MR AJ DESAI Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 04/03/2010
ORAL
JUDGMENT
1. The
present appellant has preferred this appeal under sec. 374(2) of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 25.8.1994 passed by the learned Addl.
Sessions Judge, Court No. 13, Ahmedabad City, Ahmedabad in Sessions
Case No. 268/1990, whereby, the learned Addl. Sessions Judge,
Ahmedabad has convicted the appellant under sec. 363 of IPC and
sentenced to undergo imprisonment of 2 years and to pay a fine of Rs.
200/-, in default, to underfor further R/I for two months. The
appellant is also convicted under sec. 366 of IPC and sentenced to
undergo R/I for a period of 4 years and to pay a fine of Rs. 500/-,
in default, to undergo further R/i for three months, which is
impugned in this appeal.
2. The
brief facts of the prosecution case is as under:
3. As
per the case of the prosecution, on 28.8.1988, the appellant-accused
took minor girl Binaben from the lawful custody of her grand-mother
by giving allurement with a view to marry the girl against her will
and thereafter committed rape on her. The accused took minor Binaben
from the residence of her grand mother Subhadraben situated in
Dariapur Kadvapole to Jay Vijay Guest House by giving inducement and
thereafter committed rape on her.
4. Therefore
a complaint came to be filed by the grand mother of prosecutrix
Binaben before Dariyapur Police Station on the same day, which was
registered vide CR No. 12/1988 and thereafter the police started
investigation. The panchnama of the clothes put on by the victim on
2.9.1988 was prepared in the presence of panch witness and statements
of Binaben and other witnesses were recorded and on completion of the
investigation, charge-sheet was filed in the Court of learned
Metropolitan Magistrate, Ahmedabad. Thereafter, as the case was
exclusively triable by the Court of Sessions, the learned Metrpolitan
Magistrate has committed the case to the Court of Sessions, which was
given number as Sessions Case No. 268/1990.
5. Thereafter,
the charge was framed at Ex. 1 against the appellant. The appellant
accused has pleaded not guilty and claimed to be tried.
6. In
order to bring the home the charge levelled against the appellant-
accused, the prosecution has examined the witnesses and also produced
documentary evidence before the trial Court.
7. Thereafter,
after examining the witnesses, further statement of the
appellant-accused under sec. 313 of CrPC was recorded in which the
appellant-accused has denied the case of the prosecution.
8. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Addl. Sessions Judge, Ahmedabad City
vide impugned judgment and order dated 25.8.1994 held the appellant
accused guilty to the charge levelled against him under sec. 363 and
366 of IPC and convicted and sentenced the appellant accused, as
stated above.
9. Being
aggrieved by and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Addl. Sessions Judge,
Ahmedabad City, the present appellant has preferred this appeal.
10. Heard
Mr. DM Ahuja learned advocate for the appellant and Mr AJ Desai
learned APP for the respondent-State.
11. Mr.
Ahuja learned advocate appearing for the appellant has contended that
the prosecution has examined the PW-1 complainant grand mother of
the prosecutrix at Ex. 7. From the evidence of complainant, it
appears that she is not the witness to prove the ingredients of sec.
363 and 366 of IPC and she has no personal knowledge but due to some
suspicious reasons the complaint was filed. Mr Ahuja has further
argued that the prosecution has not proved that the prosecutrix was
taken away by the accused from the lawful custody of her parents. He
has also contended that the grand mother is not a real and legal
custodian of the prosecutrix. Mr Ahuja after reading the
cross-examination of PW-1 complainant argued that birth date of the
prosecutrix is not proved beyond reasonable doubt. He has also
contended that from the ossification test, it could be considered two
years margin either this side or that side. After going through the
birth certificate, he submitted that the birth date of prosecutrix is
24.9.1970 and the date of offence is 28.8.1988, and after
calculation, it comes to more than 17 years of age of prosecutrix
and, therefore, the prosecution is not right in saying that she was
minor at the time of offence and therefore, the ingredients of sec.
363 of IPC, are not proved beyond reasonable doubt. After reading
oral evidence of PW-2 prosecutrix Ex.16, Mr Ahuja has submitted that
there was a consent and due to the consent, she had gone with the
appellant and there was love affair between them and there was no
temptation for the illicit relation. He, therefore, submitted that
the ingredients of sec. 366 of IPC are not proved and, therefore, the
learned Judge has committed an error in convicting the
appellant-accused for the offence punishable under sec. 366 of IPC.
After going through the cross-examination of PW-2, Mr Ahuja has
submitted that looking to the admission on the part of the
prosecutrix in her cross-examination, the ingredients of sec. 366 of
IPC are not proved by the prosecution beyond reasonable doubt. He
further submitted that birth certificate of the prosecutrix cannot be
considered because it is not admissible in the eye of law. He has
further submitted that the prosecution has not examined any person of
the school to prove the birth certificate Ex. 23. Mr. Ahuja,
submitted that considering the over all facts and circumstances of
the case and the oral as well documentary evidence produced on
record, the impugned judgment and order of conviction and sentence
passed by the learned Judge is required to be quashed and set aside.
12. On
the other hand, learned APP Mr AJ Desai has submitted that the grand
mother is a legal guardian of minor and defence has no right to say
that her guardianship cannot be considered. Mr Desai after going
through the oral evidence of complainant has further submitted that
it is established before the trial Court that without her permission
minor prosecutrix was taken away by the appellant and he also
submitted from the oral evidence of prosecutrix PW-2 that it is
admitted by the defence that she was with accused. Mr Desai has
further submitted that it is not denied by the defence that she was
not with him and she was not taken away by appellant from the lawful
guardianship of grand mother. Mr Desai also submitted that she was
tempted by the present appellant and some illegal physical relation
was established by the present appellant- accused. Mr Desai has
fairly admitted that the learned Judge has not considered the charge
under sec. 376 of IPC, but Mr Desai has drawn my attention to the
oral evidence of PW-2 prosecutrix which establishes that the
ingredients of sec. 375 of IPC are proved beyond reasonable doubt.
Mr. Desai has also drawn my attention to the Rule- 130 of the Bombay
Primary Education Rules, 1949 and sec. 35 of the Evidence Act and
submitted that maker of Ex. 23 birth certificate is a public servant
and entry regarding birth date has been made by a public servant and
it is made as per rule 130 of the Bombay Primary Education Rules,
1949. Mr Desai has further submitted that at the time of incident,
she was minor and ingredients of sec. 361 of IPC are already proved
before the trial court beyond reasonable doubt by the prosecution. Mr
Desai has also submitted that nowadays, some strict view is required
to be taken in such type of offence as minor girls are not safe in
the society and they do not know their future. Mr Desai has also
submitted that sentence of 4 years imposed upon the appellant by the
trial court is not sufficient and the same is required to be enhanced
and offence under sec. 376 of IPC is also proved before the trial
Court by the prosecution, therefore, suo motu this issue may be
taken up by this Court.
13. I
have gone through the oral as well as documentary evidence produced
on the record. I have read the oral evidence of prosecutrix and
complainant and also perused the charge framed against the appellant.
It is true that against the present appellant, the charge was framed
for the offence punishable under sec. 363 and 366 of IPC. I have gone
through the oral evidence of PW-1 complainant Ex. 7 and found that no
sense was taken by the appellant-accused when prosecutrix was taken
away from the lawful guardianship of the grand mother PW-1. I am
not agree with the submission of learned advocate Mr Ahuja for the
appellant that the grand mother is not a legal guardian. It is
established law that in absence of mother and father, the grand
mother is the real guardian. I have also perused the oral evidence of
PW-2 prosecutrix and it is established before the trial Court that
she was taken away by the appellant from the lawful and legal
guardianship of the complainant and at that time prosecutrix was
minor. Sec. 361 of IPC reads as under:
Kidnapping
from lawful guardianship.
361.
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 of
such guardian, is said to kidnap such minor or person from lawful
guardianship.
14. The
words ‘lawful guardian’ in this section include any person lawfully
entrusted with the care or custody of such minor or other person. It
is also proved beyond reasonable doubt before the trial court that
she was in the lawful custody of PW-1 complainant and she was the
legal guardian of the prosecutrix. I have also considered the oral
evidence of prosecutrix. It appears from the record that the defence
has not denied that the prosecutrix has not been taken away by the
appellant from the lawful custody of the complainant PW-1. It is
an admitted fact that prosecutrix was with the appellant and at that
time, she was minor and ingredients of sec. 366 of IPC are satisfied.
Main ingredient of sec. 366 of IPC is that 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.
From the oral evidence of prosecutrix PW-2, it is also established
that some sexual relation was established and the present appellant
has made intercourse with her. The conduct and intention of the
appellant has been proved beyond reasonable doubt that there was an
intention of the appellant to force the prosecutrix for illicit
sexual intercourse also. No doubt, the learned Judge has not
considered that there was a rape. In view of the provision of sec.
375 of IPC, it is not established that at that time, she was below 16
years of the age. I have perused Rule-130 of the Bombay Primary
Education Rules, 1949 and sec. 35 of the Evidence Act. The Birth
Certificate Ex. 23 is proved by the prosecution before the trial
Court beyond reasonable doubt as the birth certificate was already
exhibited and admitted by the learned advocate for the
appellant-accused before the trial court and there was an endorsement
at List of the documents at Ex. 4 produced by the prosecution. Mr AJ
Desai learned APP has also relied upon the decision in the case of
State of Maharashtra vs. Gajanan Hemant Janardhan Wankhede,
reported in (2009)8 SCC 38. Mr Desai has also submitted that
in the case of Harpal Singh and Anr. vs. State of Himachal
Pradesh, reported in 1981 Cri. L.J. p. 1, wherein, the Apex
Court has observed that school leaving certificate is sufficient
evidence to prove the case of the prosecution. Today, learned
advocate Mr Ahuja is not in a position to convince this Court that
the learned Judge has committed any error while convicting and
sentencing the appellant-accused for the said offence. Considering
the overall facts and circumstances of the case and the oral as well
as documentary evidence produced on record and the judgment of the
trial court, I am of the opinion that punishment imposed upon the
appellant-accused for the offence punishable under sec. 363 and 366
of IPC is sufficient in the eye of law. Looking to the oral evidence
of prosecutrix and particularly the age of prosecutrix which is
admittedly about 17 years and 11 months, it cannot be said that the
sexual intercourse from the appellant-accused with the prosecutrix
was against her will or without her consent. It is pertinent to note
that as deposed by her in her deposition, she has admitted that
earlier also the appellant has done intercourse with her. The
prosecutrix has every opportunity to return back to her home. She has
also deposed that for one night she has stayed alone in the house of
her friend and on the next day, she again went and met the
appellant-accused at the place as instructed by the
appellant-accused. Therefore, in view of provisions of sec. 375 of
IPC, it cannot be said that the appellant-accused has committed rape
on the prosecutrix punishable under sec. 376 of IPC. In this view of
the matter, the submission of Mr AJ Desai learned APP to take
cognizance of offence under sec. 376 of IPC suo motu is not tenable
in law.
15. I
am in complete agreement with the findings, ultimate conclusion and
resultant order of conviction and sentence passed by the trial Court
and I am of the view that no other conclusion except the one reached
by the trial Court is possible in the instant case as the evidence on
record stands. Therefore, there is no valid reason or justifiable
ground to interfere with the impugned judgment and order of
conviction and sentence.
16. In
the result, this appeal is dismissed. The impugned judgment and order
of conviction and sentence passed by the learned Addl. Sessions
Judge, Ahmedabad City, Court no. 13, Ahmedabad in Sessions Case No.
268/1990 is hereby confirmed. Bail bond stands cancelled. R & P
to be sent back to the trial court forthwith.
17. The
appellant ori. Accused is directed to surrender before the Jail
Authority within a period of three weeks from the date of this order,
failing which, the concerned Sessions Court shall issue
non-bailable warrant to effect the arrest of the appellant-ori.
Accused.
(Z.K.SAIYED,
J.)
mandora/
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