Akbarbhai Rasulbhai Arodia Muman vs The State of Gujarat and Another

Akil Kureshi, J.—Appeal is directed against judgment of conviction recorded by the learned Sessions Judge, Patan in Sessions Case No.

50/2006. By impugned judgment dated 29.3.2007, learned Judge was pleased to convict the present Appellant for offences punishable under

Sections 363, 366, 376 and 506(2) of the IPC. He was sentenced to rigorous imprisonment for three years and fine of Rs. 1000/-for offence u/s

363, rigorous imprisonment for three years and fine of Rs. 1000/-for offence u/s 366, simple imprisonment for one year and fine of Rs. 500/-for

offence u/s 506(2), rigorous imprisonment for seven years for offence u/s 376 and fine of Rs. 2,500/-. Sentences were however, to run

concurrently.

Shortly stated prosecution case was that the Appellant had kidnapped a minor girl ''R'' from her father''s house on 24.1.2006. She was taken

from place to place. Finally they were found in Ahmedabad from where the police on complaint of the father brought them to the police station

where custody of the girl was handed over to the father and the Appellant was sent in judicial custody. Upon completion of investigation, charge-

sheet was filed. Case was committed for trial. Learned Sessions Judge conducted the trial, convicted the accused and sentenced him to

imprisonment for different periods mentioned above. It is against the said judgment of conviction and sentence that Appellant has preferred present

appeal.

Counsel for the Appellant vehemently contended that there was no evidence on record. Appellant had been wrongly convicted. Victim girl ''R''

had not supported prosecution in the witness box. She was declared hostile. In absence of any evidence to connect Appellant with the crime,

conviction has been wrongly recorded.

On the other hand, learned APP for the State submitted that father of the girl had supported the prosecution case. Doctor who had examined

the girl had recorded that girl had stated before him that she was kidnapped and raped. Court had relied on such evidences including statement of

Investigating Officer who had deposed before the Court regarding girl''s statement during the investigation.

Before dealing with rival contentions, evidence in brief may be noted.

5.1 Prosecution examined Dr. Nitinkumar Atmaram Patel(PW.1) at exh.12. He was the doctor who had examined the girl on being referred by the

Investigating Agency. He found that girl had changed her clothes and there were no injuries on her body including her private parts. He found old

rupture of the hymen of the girl. He deposed that while giving history the girl had stated that on 24.1.2006, accused had by misleading her taken to

Ahmedabad wherein in a guest house, he had intercourse with her. She had in fact signed the document in which such history was recorded. Her

age was recorded as 14 and 1/2 years. However, witness had not inquired further about the age factor. Doctor had also examined the accused.

He found no marks of injuries on him. It may be noted that though doctor had collected pubic hair, blood, saliva, etc both of victim girl as well as

accused, the FSL report does not lead to any further establishment of theory of rape.

5.2 Father of the victim girl, Abdulshah Mohammadshah Fakir(PW.5) was examined at exh. 22. He stated that his wife had passed away about

three years back. On the date of incident, he had gone for agricultural labour work. His daughter ''R'' was at home. Other children were not

present. At about 3'' O'' clock in afternoon when he came home, he found the house locked. Since his daughter was not found even after search in

the evening, he filed the police complaint. They continued their search at several places. Finally the daughter was found from Khadiya police station

where she was present along with the accused. His daughter was crying bitterly, whereupon her complaint was recorded by the police.

5.3 One Kanchanben Kantilal Brahman,(PW.6) was examined at exh. 30. She produced School General Register in which date of birth of girl was

recorded as 25.6.1991. No serious cross examination of this witness was carried out regarding the correctness of the date of birth recorded.

Prosecution also produced a certificate of date of birth issued by the school concerned showing date of birth of the girl as 25.6.1991.

5.4 Victim girl ''R'',(PW.10) was examined at exh. 38. She stated that she knew the accused very well. She denied that accused had enticed her to

leave her father''s house and brought her to Ahmedabad. She stated that she was at Ahmedabad and at a tea stall was having tea with the accused

where accused had taken her for cup of tea at which time police arrested them. She was declared hostile and cross examined by the public

prosecutor. She denied that before police she had stated that under threat and coercion she had to submit to the accused''s desire, since he was a

headstrong person.

5.5 Investigating Officer Ramjibhai Kavaji Asari, (PW.13) was examined at exh. 45. He narrated steps taken by him for the investigation including

recording of the statement of the victim girl.

On the basis of such evidence, it may be seen that insofar as sexual intercourse is concerned, there is absolutely no evidence to prove the

charge. The victim girl, as noted above, turned hostile and did not support prosecution. In absence of any statement on oath by the victim girl, there

was hardly any other evidence to bring home the charge. Doctor who examined the girl as well as accused did not find any injury marks, made no

comments on possible sexual intercourse between the two. Samples collected such as pubic hair, saliva, blood, etc, throw no further light even

after FSL reports were available. Father of the victim girl naturally had no clue what might have happened after girl was found missing from the

house till she was handed over to him by Khadiya police.

I am of the opinion that learned Judge committed grave error in convicting the accused on statement of girl before the police. Of-course it is true

that in addition to such statement, we have the history recorded by the doctor who examined the girl. Even in the history recorded by the Doctor,

there is mention only of the sexual intercourse by the accused and there is no mention that the same was forcible or under threat or coercion. The

girl being above 16 years, her consent becomes relevant. However, when the victim girl herself did not support police version and stated nothing

beyond being taken to tea stall by the accused at Ahmedabad, to base conviction of offence as serious as Section 376 would be highly unsafe.

With respect to offence u/s 363 of the IPC, however, I am of the opinion that there was enough evidence to record conviction. Father of the girl

clearly stated that on 24.1.2006, when he had gone for agricultural labour work, girl was alone at home. When he returned in late afternoon, he

found the house locked, girl missing. Despite efforts, girl was not found for few days. Later she was found at Khadiya police station and handed

over to him.

The fact that girl went missing from father''s house for few days cannot be seriously doubted. Question is did Appellant had any role to play in

such disappearance and would that by itself be enough to establish offence of Kidnapping u/s 366 of the IPC.

Here I find that not only father deposed before the Court, doctor''s recording of history of the girl which she had signed, there is also evidence

of the girl herself who stated that she and accused were at tea stall in Ahmedabad from where they were arrested by police. It is difficult to fathom

how a minor girl hardly aged 16 years would be found more than 100 kms away from native place at an unknown place in unknown city that too

with the accused who happens to be of native of same village. In his statement u/s 313 of the Code of Criminal Procedure, accused did not offer

any explanation for such circumstances.

On record, the age of the girl is established. She is stated to be born on 25.6.1991. Alleged incident took place on 24.1.2006. She was thus

barely over 16 years when the incident took place. In any case, she was a minor. Taking her out of the custody of father would thus clearly

establish offence u/s 363 of the IPC.

Here again I find that there are no allegations that such kidnapping had taken place with intention to compel her to marry. Simultaneously,

charge u/s 506(2) is also not established.

In the result, appeal is disposed of in following terms:

Conviction for offences u/s 376, 366 and 506(2) of the IPC are set aside. Conviction for offence u/s 363 of the IPC is upheld. Judgment of the

Sessions Court is modified accordingly.

Since against sentence of three years, of rigorous imprisonment, Appellant has already been in jail for more than three years, he shall be released

forthwith, if not required in any other criminal cases.