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CR.A/6/2003 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 6 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
RAMESHBHAI
KIKALABHAI BARIYA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for Appellant(s)
: 1,MS FARHANA Y MANSURI for Appellant(s) : 1,
MR UR BHATT, APP
for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 24/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
By
preferring this appeal, the appellant who was original accused in
Sessions Case No. 128/2001, has challenged the legality and validity
of the impugned judgment and order dated 29/11/2002 passed by the Ld.
Addl. Sessions Judge, Fast Track Court No. 3, Bharuch, [for short
‘Ld. Trial Judge’] in the aforesaid Sessions Case. The Ld. Trial
Judge was pleased to convict the appellant accused for the
offences punishable under sections 363, 366 and 376 of the Indian
Penal Code [IPC] and sentenced to undergo rigorous imprisonment [RI]
of 3 years, RI of 5 years and RI of 10 years respectively with fine.
Being aggrieved and dissatisfied with the impugned judgment and
order, the original accused preferred this appeal.
2. The
facts, in short, leading to the prosecution case are as under :-
2.1. On
23/2/2001 at about 6.30 a.m., Hansaben, daughter of Javsing Vestabhai
Parmar, was returning to her home after attending the natural call,
at that time the appellant accused along with one Kamleshbhai and
Shardaben [both juvenile offenders] intercepted Hansaben and she was
kidnapped in a car with intention to compel her to marry against her
will and that she may be forced or seduced to illicit intercourse.
That at that time Hansaben was aged about 15 years and thus she was
kidnapped from her guardianship. As per the prosecution case, the
appellant accused caused sexual intercourse with Hansaben.
Navsing Vestabhai lodged police complaint in connection with these
offences before the police. The police registered the complaint and
commenced investigation. The police recorded statements of material
witnesses and collected medical evidence of Hansaben and the accused
and after completion of the investigation, the police filed
charge-sheet against the accused in the Court of the Ld. Judicial
Magistrate First Class, Bharuch. Since the offence was exclusive
triable by the Court of Sessions, the Ld. Magistrate committed the
case to the Court of Sessions. The Ld. Trial Judge framed charge
against accused at exh. 9. Since the accused did not plead guilty and
claimed to be tried, the prosecution adduced its oral and documentary
evidence. After completion of the evidence adduced by the
prosecution, the Ld. Trial Judge recorded the further statement of
the accused under section 313 of the Code of Criminal Procedure [Cr.
P.C.], wherein the accused pleaded denial and stated that because of
some monetary dispute, he was falsely implicated in this case. The
Ld. Trial Judge, after appreciating the evidence on record and after
hearing arguments advanced on behalf of both the parties, delivered
the impugned judgment and order and the Ld. Trial Judge came to the
conclusion that the prosecution proved beyond reasonable doubt the
offences charges against the accused and passed order of conviction
and sentence as stated above.
3. On
behalf of the appellant accused, learned advocate Ms. Mansuri
submitted that the impugned judgment and order delivered by the trial
Court is contrary to law and evidence on record. That the basic
defect in the prosecution case is the name of the prosecutrix. As per
the prosecution case, the name of the prosecutrix is Hansaben.
However, considering the copy of birth certificate produced at exh.
34 in this case, the name which is shown is ‘Sanudiben’ and
the date of birth of Sanudiben is shown to be 24/10/1986. Prosecution
did not produce any certificate wherein the name of Hansaben appears.
That the panchas who are examined by the prosecution relating to
panchnama of scene of occurrence and panchnama of recovery of cloth
of the prosecutrix, have turned hostile. That the deposition of
Hansaben is full of material contradictions. That the prosecution
miserably failed to prove that at the time of so called offence, the
prosecutrix was aged about 15 years. That the so called motor car in
which the prosecutrix was alleged to have been kidnapped, is not
seized by the police. That no test identification parade of the
accused was held by the police. That the evidence adduced by the
prosecution is quite unnatural and without any credibility.
Therefore, it is submitted that the appeal be allowed and the
impugned judgment and order passed by the trial Court be set aside
and the appellant accused be acquitted from all the offences
charged against him.
4. On
behalf of the respondent State, Ld. APP Mr. Bhatt fully supported
the impugned judgment and order delivered by the Ld. Trial Judge. It
is submitted that by documentary evidence, the prosecution
successfully proved that the date of birth of the prosecutrix was
24/10/1986, the incident took place on 23/2/2001. Therefore, at the
time of incident, the prosecutrix was below 15 years of age. That
considering the deposition of prosecutrix herself together with
depositions of her father Javsing Vestabhai and uncle [first
informant] Navsing Parmar, it has come on record that Hansaben was
known as Sanudiben. That thus the name of Hansaben was ‘Sanudi’.
That, therefore, there is no reason to doubt the birth registration
certificate produced by the prosecution and said certificate relates
to the prosecutrix. That prosecutrix Hansaben categorically
described the incident, she deposed in clear terms that the accused
caused sexual intercourse with her while she was abducted by him and
was under his control. That the version given by the prosecutrix in
her deposition on oath gets support by medical evidence. Therefore,
it is submitted that the appeal be dismissed.
5. The
deposition of prosecutrix – Hansaben Parmar is recorded at exh. 20.
First of all, considering her deposition, she clearly stated that her
nickname is Sanudi. In her deposition she described the incident
about her kidnapping by the accused and two juvenile offenders named
Kamlesh and Shardaben. She stated that in a Tata Sumo car she was
taken to various places. According to her say, accused kept her with
him for the period of appropriately two months and during this
period, on more than one occasion, the accused caused sexual
intercourse with her without her consent. Considering the
cross-examination made on behalf of the defence of the prosecutrix,
it appears that the defence intended to take up a defence that this
was a case of love affairs between the prosecutrix and the accused.
However, she outrightly denied the suggestion that the accused was
known to her. However, she stated that by name, she was knowing the
accused, but denied the suggestion regarding her having any affairs
with the accused. Considering her cross-examination, no dispute
regarding her age appears to have been raised. Only argument advanced
on behalf of the appellant accused is about the name mentioned in the
birth certificate exh. 34 that the certificate bears the name of
Sanudi; whereas prosecutrix is Hansaben. However, Hansaben herself
deposed that her nickname is Sanudiben. Over and above this,
considering the deposition of her father Javsing Parmar exh. 30 and
deposition of her uncle Navsing Parmar exh. 19, who is the first
informant before the police, it clearly transpires that both these
witnesses deposed that nickname of Hansaben is Sanudi.
6. In
view of above, considering the impugned judgment delivered by the Ld.
Trial Judge, it clearly transpires that the Ld. Trial Judge
elaborately discussed the depositions of Hansaben the
prosecutrix, her father and her uncle and rightly came to the
conclusion that nickname of prosecutrix Hansaben is Sanudiben and
the birth certificate exh. 34 relates to her. As emerged from the
evidence on record and as appreciated the said evidence in the
impugned judgment, we are of the considered opinion that the Ld.
Trial Judge rightly came to the conclusion that at the time of
incident, the prosecutrix was aged about 15 years. When such is the
situation, even if there be any consent from the side of the
prosecutrix, the same cannot be considered. However, considering the
entire deposition of Hansaben, there is nothing that there was any
love affair between herself and the accused and that she ever
consented for sexual intercourse.
7. Considering
the medical evidence on record in the form of deposition of Dr.
Makwana exh. 40 and the certificate exh. 42, it is revealed that
there was tear of hymen and that she had undergone repeated
intercourses. Thus, the Ld. Trial Judge rightly came to the
conclusion that the version of the prosecutrix is supported by
medical evidence on record. When such is the situation, the fact that
Panchas of the panchnamas regarding the scene of offence and the
recovery of cloth of the prosecutrix, turned hostile, or that the car
which was used by the accused for kidnapping the prosecutrix was not
seized by the police, can never be a ground to acquit the appellant
accused, discarding the cogent and credit worthy evidence adduced by
the prosecution to connect the accused with the crime.
8. For
the foregoing reasons, we are of the opinion that the appeal deserves
to be dismissed. The appeal, therefore, stands dismissed.
(
A. L. DAVE, J.)
(
J .C. UPADHYAYA, J. )
*Pansala.
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