{"id":127813,"date":"2008-10-20T00:00:00","date_gmt":"2008-10-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/stevan-vs-state-on-20-october-2008"},"modified":"2016-09-06T18:53:18","modified_gmt":"2016-09-06T13:23:18","slug":"stevan-vs-state-on-20-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/stevan-vs-state-on-20-october-2008","title":{"rendered":"Stevan vs State on 20 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Stevan vs State on 20 October, 2008<\/div>\n
Author: A.L.Dave,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/480\/2004\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 480 of 2004\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.L.DAVE\n \n\n  \nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nSTEVAN\nCHHOTABHAI RAJWADI - Appellant\n \n\nVersus\n \n\nSTATE\nOF GUJARAT ?  Respondent.\n \n\n=========================================================\n \nAppearance\n: \nMR\nND NANAVATY, SENIOR ADVOCATE with MR NIRJAR BUCH, for NANAVATY\nADVOCATES for Appellant. \nMR UR BHATT, ADDL PUBLIC PROSECUTOR for\nRespondent. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.L.DAVE\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.C.UPADHYAYA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 20\/10\/2008 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n
\tThis
\nappeal arises out of the judgment and order rendered by the Sessions
\nCourt, Bharuch at Rajpipla, on 15th March, 2004, in
\nSessions Case No. 71\/2003. The appellant came to be convicted for the
\noffences punishable under Sections 493 & 376 of the Indian Penal
\nCode and was sentenced to undergo R.I. for ten years and to pay a
\nfine of Rs. 15,000\/-, in default, to undergo S.I. for two years for
\nthe offence punishable under section 493, and to undergo R.I. for ten
\nyears and to pay a fine of Rs. 2,500\/-, in default, to undergo S.I.
\nfor one year for the offence punishable under Section 376 I.P.C. The
\nCourt also ordered that out of the amount deposited by way of fine,
\nRs. 10,000\/- would be paid to the complainant as compensation.\n<\/p>\n
2.\tComplainant
\nKapilaben, daughter of Rupjibhai Keliya Vasava, lodged an F.I.R. on
\n28.9.2002 (12.8.2002) against the appellant before the District
\nSuperintendent of Police, Narmada making  charges for the offences
\npunishable under Sections 493 & 376 of I.P.C., alleging that she
\nis born on 1.6.1974, that, the appellant was her teacher in Indrajit
\nVidyalaya, Umarva and was teaching drawing etc.  Around  January,
\n1994, when she was about to complete her study in Std.10, the
\nappellant offered her help for admission and gave guidance about her
\neducation and came closure to her. According to the complaint, the
\nappellant posed before the complainant as a bachelor and proposed her
\nfor marriage and promised that he may secure admission for her in
\nPhysical Training Course (?SPTC?? for short) and would marry her.
\nAfter passing 10th Std.Examination, she again took
\nadmission in Std.11 in Kanya Vinay Mandir, Rajpipla and was staying
\nin Girls’ Hostel, where she was informed by the appellant-accused
\nthat arrangement for her admission to PTC was made and then took her
\nto Borsad. For going to Borsad, next morning, he took her to a hotel
\nand established physical relationship against her will and in spite
\nof her denials, and thereby committed rape. Thereafter, the appellant
\nrepresented before her that establishment of physical relationship is
\nperformance of marriage. According to the complainant, the appellant
\ntook her to village Umalla-Vaghpura and kept her over there and
\nestablished physical relationship every day, which she permitted
\nunder a belief that he is her lawfully wedded husband. She, however,
\ncame to know, later on, that the appellant was a married person,
\nhaving children, the eldest one being almost of her age.\n<\/p>\n
2.1\t\tOn
\nthe basis of the F.I.R., offence was registered and investigated. The
\npolice ultimately filed charge sheet in the Court of learned J.M.F.C.
\nRajpipla, who, in turn, committed the case to the Court of Sessions
\nand Sessions Case No.71\/2003 came to be registered. The charge was
\nframed against the appellant-accused at Exh.4 for the offences
\npunishable under Sections 493 & 376 of I.P.C., to which he
\npleaded not guilty and hence, he came to be tried.\n<\/p>\n
3.\tOn
\nthe basis of the evidence led by the prosecution as well as after
\nconsidering the evidence led by the defence, the trial Court came to
\nthe conclusion that the prosecution was successful in establishing
\nthe charges for both the offences and recorded conviction and ordered
\npunishment, as stated hereinabove. It is against the said judgment
\nand order that the present appeal is preferred.\n<\/p>\n
4.\tWe
\nhave heard learned Senior Advocate Mr. N.D.Nanavaty appearing with
\nlearned advocate Mr.Nirjar Buch for Nanavaty Advocates for the
\nappellant, and learned A.P.P. Mr. U.R.Bhatt for the State. We have
\nalso examined the record and proceedings.\n<\/p>\n
5.\tLearned
\nSenior Advocate Mr.Nanavaty submitted that the basic ingredients
\nconstituting either of the offences, for which the appellant was
\ncharged and convicted, are not established. He has submitted that,
\nadmittedly, the complainant and the appellant were staying together
\nopenly as husband and wife in a house next door to the house, where
\nthe wife of the appellant was also staying. Admittedly, they have
\nstayed together for nearly 8 years and there has neither been any
\ncomplaint nor any action on the part of the complainant. Mr. Nanavaty
\nsubmitted further that the evidence would go to show that there was
\nan affair between the appellant and the complainant-prosecutrix,
\nwhich was then accepted by the Society. They have lived together as
\nhusband and wife. The complainant’s parents were also visiting the
\nhouse, where the appellant and the complainant-prosecutrix were
\nstaying as husband and wife and they also used to attend social
\nfunctions as husband and wife in the family of the complainant’s
\nfather. Mr. Nanavaty submitted that it has come in evidence that the
\nprosecutrix also used to identify herself as the wife of the
\nappellant, to which the appellant never objected and the appellant
\nalso maintained the same relationship. Mr. Nanavaty also submitted
\nthat the evidence shows that the Bank Accounts were also opened in
\nthe joint names posing the complainant-prosecutrix as `wife’ of the
\nappellant-accused. Mr. Nanavaty submitted that if all these pieces of
\nevidence are considered together, the element of deceit would be
\neliminated and if that is so,  offence punishable under Section 493
\nIPC cannot be said to have been constituted. Similarly, the offence
\nof rape would also not be constituted because it cannot be said that
\nthe lady consented to physical relationship on her being made to
\nbelieve that the appellant is her husband. Mr. Nanavaty, therefore,
\nsubmitted that the appeal may be allowed.\n<\/p>\n
6.\tThe
\nappeal is opposed by learned Additional Public Prosecutor
\nMr.U.R.Bhatt. According to him, the trial Court has considered these
\nvery aspects and has also taken a view that such relationship, which
\nwas established in a clandestine manner, should be dealt with
\nsternly. The judgment is well reasoned and may not be interfered.\n<\/p>\n
7.\tWe
\nhave taken into consideration the rival side submissions. Upon going
\nthrough the record and proceedings, we find that prosecutrix
\nKapilaben has deposed at Exh.8, her father Rupji is examined at
\nExh.55, her mother Dhanuben is examined at Exh.57 and her brother
\nDeepsingh is examined at Exh.58. Her maternal uncle Hepubhai is
\nexamined at Exh.56.\n<\/p>\n
8.\tThe
\nprosecutrix has deposed on the lines of her complaint and has stated
\nthat she was lured by the accused-appellant by offering monetary help
\nand guiding her in her studies. She states that she was taken to a
\nhotel, where she was forced into an intercourse and when they were
\ntaken to police station, the accused introduced themselves as
\nspouses, and from there, they were taken to Court, where also he said
\nthe same thing. She was driven out from the Hostel because of such
\nrelationship and then she was taken by the appellant-accused to his
\nhouse. She has been cross-examined at length, where she has admitted
\nthat when she was staying in the hostel, she had never objected to
\nthe appellant meeting her at every week end. She has also admitted
\nthat she had obtained consent from the hostel authorities  for going
\nwith the appellant to Borsad for getting admission in PTC. She also
\nadmits that she herself had told the police that they are husband and
\nwife and when they were taken to Court, she again said the same
\nthing. She admits that she had not stated before the police that she
\nwas deceitfully taken to the hotel by the accused-appellant. During
\nher cross-examination, it is revealed that she had stayed with the
\nappellant for a long span, without any complaint and with the
\nknowledge about his being married and his wife stayed in the house
\nnext to the house where she was staying. She has also admitted a
\nnumber of letters written by her to the appellant. She also admits
\nher presence in several photographs of social functions. According to
\nher, she was staying with the accused-appellant not from 1992, but,
\nfrom 1994 till 2001. She admits that she lodged the complaint about
\n13 months after she left the house of the appellant with her parents.
\nShe tries to explain the delay in lodging the complaint by saying
\nthat they were trying to persuade the appellant.\n<\/p>\n
8.1\t\tThe
\nfather of the prosecutrix Rupjibhai Vasava is examined at Exh.55. His
\nevidence is more or less in the form of hearsay evidence i.e. on the
\nbasis of what has been told to him by the prosecutrix. He states that
\nthe appellant lured the prosecutrix and impressed upon her that they
\nwere lawfully wedded and are spouses. During his cross examination,
\nhe admits that he had not given any complaint because his daughter
\nKapilaben was staying with the accused at village Umalla and that her
\nfuture would have been bright while staying with him. He also felt
\nthat the accused-appellant used to keep her well and, therefore, he
\nfelt that she was staying with the accused-appellant of her own
\nvolition. He also admits that while she was staying with the
\nappellant for 7 years, he used to visit her often. He also admits
\nthat he had attended the obituary of the mother of the appellant. He
\nalso admits that he used to visit Jamnaben, wife of the appellant. He
\nalso admits that even the appellant and the complainant were visiting
\nhis house and he used to maintain good respect for the appellant.\n<\/p>\n
8.2\t\tThe
\ndeposition of Dhanuben, mother of the prosecutrix, is recorded at
\nExh.57. From her deposition, it emerges that once they had gone to
\nthe house of the prosecutrix and the accused and there was a quarrel
\nbetween the accused and the prosecutrix on return of the accused, and
\nthe accused drove them out of the house and ultimately they lodged
\nthe F.I.R.\n<\/p>\n
9.\tIf
\nthe above pieces of material evidence are considered, it is clear
\nthat the relationship  between the accused and the prosecutrix
\ndeveloped somewhere before 1994 when she was studying. That
\nrelationship ultimately culminated into a love affair and the
\nappellant used to extend all possible help to the prosecutrix, either
\nfor education or to cater to her financial needs. It also appears
\nthat consistently both, the appellant as well as the prosecutrix,
\nhave accepted the relationship as that of husband and wife and that
\nrelationship they have enjoyed publicly and appears to have been
\naccepted, by and large, by the society, including the wife of the
\nappellant and the parents of the prosecutrix. This is not a case of
\nsolitary instance of entering into coitus by deceitful means  by
\ncreating a make believe situation that the relationship of husband
\nand wife is established between the two and was a design to, in fact,
\nexploit the prosecutrix by the accused.\n<\/p>\n
10.\tThe
\nF.I.R. is delayed by about 13 months and her explanation coming
\nforward is that they were trying to persuade the accused. In our
\nopinion, the evidence is not sufficient to indicate that the
\nrelationship between the accused and the prosecutrix developed on any
\ndeceitful means attributable to the appellant. It is not a case where
\nby impression upon the prosecutrix that she is now the lawfully
\nwedded wife of the accused, the accused had taken any undue advantage
\nof the situation. That relationship somehow got established and was
\npublicly established by the accused as well as by the society to an
\nextent that they attended social functions as husband and wife and
\neven Bank Accounts were opened under their joint names.\n<\/p>\n
10.1\t\tThe
\nproblem seems to have  started when there was some quarrel between
\nthe two and the appellant drove out the prosecutrix along with her
\nparents. Till that moment, there seemed to be no dispute. Even after
\nthat incident, the F.I.R. was lodged after 13 months. We are,
\ntherefore, of the view that the ingredients of the  offence
\npunishable under Section 493 IPC cannot be said to have been
\nconstituted by the evidence led by the prosecution, nor can the
\noffence of rape be said to have been proved. Though, not very
\nemphatically, the learned Additional Public Prosecutor indicated that
\nFourthly of Section 375 IPC would be attracted, we are afraid that it
\nis not possible to accept this contention for the reason that we find
\nthat the element of deceit is missing in the entire episode. We have
\nalso found that the offence punishable under Section 493 also cannot
\nbe said to have been constituted. The trial Court committed an error
\nin recording the conviction on the basis of the bare allegations made
\nby the prosecutrix, overlooking the surrounding circumstances. The
\ntrial Court also missed the fact that a man may tell a lie, but,
\ncircumstances do not tell lie.\n<\/p>\n
11.\tIn
\nthe light of what is discussed hereinabove, we are inclined to accept
\nthis appeal and set aside the conviction.\n<\/p>\n
12.\tThe
\nappeal is allowed. The conviction and sentence imposed by the learned
\nAdditional Sessions Judge, 2nd Fast Track Court, Bharuch
\nat Rajpipla, in Sessions Case No.71\/2003, on 15th March,
\n2004 is hereby set aside. The appellant be set at liberty forthwith,
\nif his presence is not required in respect of any other offence.
\nFine, if any, paid, shall be refunded to the appellant.\n<\/p>\n
\t\t\t\t\t\t\t[
\nA.L. Dave,J.]<\/p>\n
\t\t\t\t\t\t\t[
\nJ.C.Upadhyaya,J.]<\/p>\n
(patel)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Stevan vs State on 20 October, 2008 Author: A.L.Dave,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-127813","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nStevan vs State on 20 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/stevan-vs-state-on-20-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Stevan vs State on 20 October, 2008 - 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