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CR.A/480/2004 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 480 of 2004
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 ?
=========================================================
STEVAN
CHHOTABHAI RAJWADI - Appellant
Versus
STATE
OF GUJARAT ? Respondent.
=========================================================
Appearance
:
MR
ND NANAVATY, SENIOR ADVOCATE with MR NIRJAR BUCH, for NANAVATY
ADVOCATES for Appellant.
MR UR BHATT, ADDL PUBLIC PROSECUTOR for
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
This
appeal arises out of the judgment and order rendered by the Sessions
Court, Bharuch at Rajpipla, on 15th March, 2004, in
Sessions Case No. 71/2003. The appellant came to be convicted for the
offences punishable under Sections 493 & 376 of the Indian Penal
Code and was sentenced to undergo R.I. for ten years and to pay a
fine of Rs. 15,000/-, in default, to undergo S.I. for two years for
the offence punishable under section 493, and to undergo R.I. for ten
years and to pay a fine of Rs. 2,500/-, in default, to undergo S.I.
for one year for the offence punishable under Section 376 I.P.C. The
Court also ordered that out of the amount deposited by way of fine,
Rs. 10,000/- would be paid to the complainant as compensation.
2. Complainant
Kapilaben, daughter of Rupjibhai Keliya Vasava, lodged an F.I.R. on
28.9.2002 (12.8.2002) against the appellant before the District
Superintendent of Police, Narmada making charges for the offences
punishable under Sections 493 & 376 of I.P.C., alleging that she
is born on 1.6.1974, that, the appellant was her teacher in Indrajit
Vidyalaya, Umarva and was teaching drawing etc. Around January,
1994, when she was about to complete her study in Std.10, the
appellant offered her help for admission and gave guidance about her
education and came closure to her. According to the complaint, the
appellant posed before the complainant as a bachelor and proposed her
for marriage and promised that he may secure admission for her in
Physical Training Course (?SPTC?? for short) and would marry her.
After passing 10th Std.Examination, she again took
admission in Std.11 in Kanya Vinay Mandir, Rajpipla and was staying
in Girls’ Hostel, where she was informed by the appellant-accused
that arrangement for her admission to PTC was made and then took her
to Borsad. For going to Borsad, next morning, he took her to a hotel
and established physical relationship against her will and in spite
of her denials, and thereby committed rape. Thereafter, the appellant
represented before her that establishment of physical relationship is
performance of marriage. According to the complainant, the appellant
took her to village Umalla-Vaghpura and kept her over there and
established physical relationship every day, which she permitted
under a belief that he is her lawfully wedded husband. She, however,
came to know, later on, that the appellant was a married person,
having children, the eldest one being almost of her age.
2.1 On
the basis of the F.I.R., offence was registered and investigated. The
police ultimately filed charge sheet in the Court of learned J.M.F.C.
Rajpipla, who, in turn, committed the case to the Court of Sessions
and Sessions Case No.71/2003 came to be registered. The charge was
framed against the appellant-accused at Exh.4 for the offences
punishable under Sections 493 & 376 of I.P.C., to which he
pleaded not guilty and hence, he came to be tried.
3. On
the basis of the evidence led by the prosecution as well as after
considering the evidence led by the defence, the trial Court came to
the conclusion that the prosecution was successful in establishing
the charges for both the offences and recorded conviction and ordered
punishment, as stated hereinabove. It is against the said judgment
and order that the present appeal is preferred.
4. We
have heard learned Senior Advocate Mr. N.D.Nanavaty appearing with
learned advocate Mr.Nirjar Buch for Nanavaty Advocates for the
appellant, and learned A.P.P. Mr. U.R.Bhatt for the State. We have
also examined the record and proceedings.
5. Learned
Senior Advocate Mr.Nanavaty submitted that the basic ingredients
constituting either of the offences, for which the appellant was
charged and convicted, are not established. He has submitted that,
admittedly, the complainant and the appellant were staying together
openly as husband and wife in a house next door to the house, where
the wife of the appellant was also staying. Admittedly, they have
stayed together for nearly 8 years and there has neither been any
complaint nor any action on the part of the complainant. Mr. Nanavaty
submitted further that the evidence would go to show that there was
an affair between the appellant and the complainant-prosecutrix,
which was then accepted by the Society. They have lived together as
husband and wife. The complainant’s parents were also visiting the
house, where the appellant and the complainant-prosecutrix were
staying as husband and wife and they also used to attend social
functions as husband and wife in the family of the complainant’s
father. Mr. Nanavaty submitted that it has come in evidence that the
prosecutrix also used to identify herself as the wife of the
appellant, to which the appellant never objected and the appellant
also maintained the same relationship. Mr. Nanavaty also submitted
that the evidence shows that the Bank Accounts were also opened in
the joint names posing the complainant-prosecutrix as `wife’ of the
appellant-accused. Mr. Nanavaty submitted that if all these pieces of
evidence are considered together, the element of deceit would be
eliminated and if that is so, offence punishable under Section 493
IPC cannot be said to have been constituted. Similarly, the offence
of rape would also not be constituted because it cannot be said that
the lady consented to physical relationship on her being made to
believe that the appellant is her husband. Mr. Nanavaty, therefore,
submitted that the appeal may be allowed.
6. The
appeal is opposed by learned Additional Public Prosecutor
Mr.U.R.Bhatt. According to him, the trial Court has considered these
very aspects and has also taken a view that such relationship, which
was established in a clandestine manner, should be dealt with
sternly. The judgment is well reasoned and may not be interfered.
7. We
have taken into consideration the rival side submissions. Upon going
through the record and proceedings, we find that prosecutrix
Kapilaben has deposed at Exh.8, her father Rupji is examined at
Exh.55, her mother Dhanuben is examined at Exh.57 and her brother
Deepsingh is examined at Exh.58. Her maternal uncle Hepubhai is
examined at Exh.56.
8. The
prosecutrix has deposed on the lines of her complaint and has stated
that she was lured by the accused-appellant by offering monetary help
and guiding her in her studies. She states that she was taken to a
hotel, where she was forced into an intercourse and when they were
taken to police station, the accused introduced themselves as
spouses, and from there, they were taken to Court, where also he said
the same thing. She was driven out from the Hostel because of such
relationship and then she was taken by the appellant-accused to his
house. She has been cross-examined at length, where she has admitted
that when she was staying in the hostel, she had never objected to
the appellant meeting her at every week end. She has also admitted
that she had obtained consent from the hostel authorities for going
with the appellant to Borsad for getting admission in PTC. She also
admits that she herself had told the police that they are husband and
wife and when they were taken to Court, she again said the same
thing. She admits that she had not stated before the police that she
was deceitfully taken to the hotel by the accused-appellant. During
her cross-examination, it is revealed that she had stayed with the
appellant for a long span, without any complaint and with the
knowledge about his being married and his wife stayed in the house
next to the house where she was staying. She has also admitted a
number of letters written by her to the appellant. She also admits
her presence in several photographs of social functions. According to
her, she was staying with the accused-appellant not from 1992, but,
from 1994 till 2001. She admits that she lodged the complaint about
13 months after she left the house of the appellant with her parents.
She tries to explain the delay in lodging the complaint by saying
that they were trying to persuade the appellant.
8.1 The
father of the prosecutrix Rupjibhai Vasava is examined at Exh.55. His
evidence is more or less in the form of hearsay evidence i.e. on the
basis of what has been told to him by the prosecutrix. He states that
the appellant lured the prosecutrix and impressed upon her that they
were lawfully wedded and are spouses. During his cross examination,
he admits that he had not given any complaint because his daughter
Kapilaben was staying with the accused at village Umalla and that her
future would have been bright while staying with him. He also felt
that the accused-appellant used to keep her well and, therefore, he
felt that she was staying with the accused-appellant of her own
volition. He also admits that while she was staying with the
appellant for 7 years, he used to visit her often. He also admits
that he had attended the obituary of the mother of the appellant. He
also admits that he used to visit Jamnaben, wife of the appellant. He
also admits that even the appellant and the complainant were visiting
his house and he used to maintain good respect for the appellant.
8.2 The
deposition of Dhanuben, mother of the prosecutrix, is recorded at
Exh.57. From her deposition, it emerges that once they had gone to
the house of the prosecutrix and the accused and there was a quarrel
between the accused and the prosecutrix on return of the accused, and
the accused drove them out of the house and ultimately they lodged
the F.I.R.
9. If
the above pieces of material evidence are considered, it is clear
that the relationship between the accused and the prosecutrix
developed somewhere before 1994 when she was studying. That
relationship ultimately culminated into a love affair and the
appellant used to extend all possible help to the prosecutrix, either
for education or to cater to her financial needs. It also appears
that consistently both, the appellant as well as the prosecutrix,
have accepted the relationship as that of husband and wife and that
relationship they have enjoyed publicly and appears to have been
accepted, by and large, by the society, including the wife of the
appellant and the parents of the prosecutrix. This is not a case of
solitary instance of entering into coitus by deceitful means by
creating a make believe situation that the relationship of husband
and wife is established between the two and was a design to, in fact,
exploit the prosecutrix by the accused.
10. The
F.I.R. is delayed by about 13 months and her explanation coming
forward is that they were trying to persuade the accused. In our
opinion, the evidence is not sufficient to indicate that the
relationship between the accused and the prosecutrix developed on any
deceitful means attributable to the appellant. It is not a case where
by impression upon the prosecutrix that she is now the lawfully
wedded wife of the accused, the accused had taken any undue advantage
of the situation. That relationship somehow got established and was
publicly established by the accused as well as by the society to an
extent that they attended social functions as husband and wife and
even Bank Accounts were opened under their joint names.
10.1 The
problem seems to have started when there was some quarrel between
the two and the appellant drove out the prosecutrix along with her
parents. Till that moment, there seemed to be no dispute. Even after
that incident, the F.I.R. was lodged after 13 months. We are,
therefore, of the view that the ingredients of the offence
punishable under Section 493 IPC cannot be said to have been
constituted by the evidence led by the prosecution, nor can the
offence of rape be said to have been proved. Though, not very
emphatically, the learned Additional Public Prosecutor indicated that
Fourthly of Section 375 IPC would be attracted, we are afraid that it
is not possible to accept this contention for the reason that we find
that the element of deceit is missing in the entire episode. We have
also found that the offence punishable under Section 493 also cannot
be said to have been constituted. The trial Court committed an error
in recording the conviction on the basis of the bare allegations made
by the prosecutrix, overlooking the surrounding circumstances. The
trial Court also missed the fact that a man may tell a lie, but,
circumstances do not tell lie.
11. In
the light of what is discussed hereinabove, we are inclined to accept
this appeal and set aside the conviction.
12. The
appeal is allowed. The conviction and sentence imposed by the learned
Additional Sessions Judge, 2nd Fast Track Court, Bharuch
at Rajpipla, in Sessions Case No.71/2003, on 15th March,
2004 is hereby set aside. The appellant be set at liberty forthwith,
if his presence is not required in respect of any other offence.
Fine, if any, paid, shall be refunded to the appellant.
[
A.L. Dave,J.]
[
J.C.Upadhyaya,J.]
(patel)
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