Manish vs State of Gujarat

K.S. Jhaveri, J.—1. Both the above Appeals are directed against the judgment and order of conviction and sentence dated 17.09.1998 passed by the learned Special Additional Sessions Judge, Court No. 23, A''bad City in Atrocity Criminal Case No. 34/1997 whereby the appellant accused herein was convicted for the offence punishable under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of three years and fine of Rs. 5,000/-, and in default of payment of fine, further rigorous imprisonment of six months. However, the accused was acquitted of the offences punishable under Sections 363 and 366 of the Indian Penal Code and under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Criminal Appeal No. 1002/1998 is the Appeal preferred by the accused challenging his conviction and sentence as stated above and Criminal Appeal No. 1148/1998 is preferred by the State seeking enhancement of sentence qua the accused.

The facts of the case is as under:--

"3.1. The complainant who belongs to the Adivasi community and consisting of his wife, one son and two daughters resides with his family in the Isanpur area of Ahmedabad. The date of birth of the daughter of the complainant (the prosecutrix) is stated to 05.09.1997 and she has studied upto Standard IX. The accused herein is involved in his father''s transportation business and the complainant is the tenant of the accused herein. The accused herein is a married man and lives separately from his father at Jagabhai Park and used to occasionally talk with the prosecutrix.

3.2. On 15.11.1996 the complainant and his wife were out of the city and the sister-in-law of the complainant and the prosecutrix were at home. It is stated that the accused came with a scooter, made the prosecutrix sit on the same and took her to his house at Jagabhai Park. From there the prosecutrix took a rickshaw and went to Balvatika. At around 5.45 pm, the accused brought clothes of the prosecutrix and said to her that ''let us go to Ambaji''. The prosecutrix refused to come so that accused is alleged to have threatened the prosecutrix by telling that he would reveal their love affair to everybody. On the insistence of the accused, the prosecutrix went to the State Transport Bus Stand at Geeta Mandir and from there, both sat in a luxury bus and reached Ambaji in the night at around 12 o'' clock. Both stayed for one night at Gayatri Guest House. It is alleged that despite the opposition of the prosecutrix, the accused had sexual intercourse with her. Thereafter, they stayed at Medavala Dharmshala for another three days, and every night, the accused had sexual intercourse with the prosecutrix inspite of her opposition. Thereafter, both went to Mount Abu and stayed in a hotel where again the accused had sexual intercourse with the prosecutrix. Both again travelled back to Ambaji and stayed at a Dharmshala. Later on, both of them came back to Ahmedabad and it is stated that the accused told the prosecutrix that he would come with his Scooter to Kheda and told the prosecutrix to wait at the ST Bus Stand at Kheda. Therefore, the prosecutrix went to Kheda. The accused and his wife Sangita then reached the State Transport Bus Stand as they had to Village Chikotra. The accused thereafter told the prosecutrix that the police was behind him and therefore, the prosecutrix should come to Ahmedabad. The prosecutrix went to Vanswada and from there she went to her uncle''s home where she stayed for a day and night. The next day she went to her aunt''s home (the sister of her father) at Village Tametia where she stayed for three days and thereafter, in the evening she left for Ahmedabad. The prosecutrix reached Ahmedabad in the night and went to her uncle - Shankarbhai''s home and later she informed her father. It is also stated that the accused had given her Rs. 200/-. In the meantime, as the prosecutrix could not be found, efforts were made by the family members to trace her. A complaint in this respect was lodged with Vatva Police Station and the investigation commenced during which the statements of various witnesses were recorded and as the prosecutrix came to the Police Station, she was sent for examination to the Civil Hospital. The accused was arrested and presented before the Court. The muddamal was sent to Scientific Laboratory for analysis. On receipt of the Certificate of the Doctors and the Analysis Report, against the accused chargesheet was led before the Court. The trial Court framed the charge, which was read over to the accused, which the accused totally denied and therefore, the trial commenced.

3.3. At the time of the trial, the prosecution examined the following witnesses :--

The prosecution also relied upon various documentary evidence, some of them are :--

3.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid."

Learned Advocate appearing for the appellant accused Mr. Joshi has submitted that admittedly the prosecutrix was aged more than 16 years at the time of incident. The Birth Certificate produced on record states that she was aged 17 years 2 months and 10 days at the time of incident. It is further submitted that the evidence led also refers to the prosecutrix being habituated for sexual intercourse and the learned Sessions Judge has also recorded in his judgment and order at Paragraph Nos. 22 and 23 that the prosecutrix had consented to the sexual intercourse with the appellant herein and had repeated relations in this respect. It is further submitted that appellant was acquitted of the offence punishable under Sections 363 and 366 of the Indian Penal Code but was convicted under Section 376 of the Indian Penal Code based on his further Statement recorded under Section 313 of the Code of Criminal Procedure. Learned Advocate for the accused has also submitted that the above incident was never part of the chargesheet and the learned Sessions Judge has committed a grave error by relying on this evidence. Considering the above and also the fact that the prosecutrix did not make any attempts to oppose the motives of the appellant, it is submitted that this is a fit case which requires the interference of this Court in the judgment and order of the learned Sessions Judge and the conviction of the accused be upturned.

Learned Additional Public Prosecutor Ms. Shruti Pathak has taken this Court to the facts and circumstances of the case as well as the statement of the prosecutrix and has submitted that the learned Judge has not properly considered the fact that the accused is a married man who had developed sexual relations with the prosecutrix and therefore, had sexually exploited the prosecutrix. It is further submitted that the sentence awarded to be accused be enhanced as it is grossly inadequate considering the conduct of the accused. It is further submitted that considering the statements made by the Managers of the Dharmshalas as well as the statement made by the owner of Vilasvihar, Abu, it is amply clear that that the accused had stayed with prosecutrix for long intervals of time just for satisfying his lust. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be modified and the appeal for enhancement of sentence qua the accused be allowed and the appeal preferred by the accused challenging his conviction be rejected.

We have heard learned Advocates appearing for the respective parties and perused the records of the case. At this stage, it is necessary to reproduce Section 376 of the Indian Penal Code which reads as under :--

"376. Punishment for rape:--(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:"

It transpires from the records of the case that the prosecutrix was a consenting party to the sexual relations with the appellant accused. It is also not in dispute that the accused and the prosecutrix were profusely in love, travelled together in public, stayed at different places and thus, there is no iota of evidence to suggest that the prosecutrix did the above acts out of coercion or fear. Further, the prosecutrix had studied till Standard IX and at every stage, could have availed the opportunity of running away from the accused or shouting for help as the case may be. The Report of the Medical Officer, Civil Hospital qua the prosecutrix also states "no ext. mark of injury over body." The learned Sessions Judge in his judgment and order of conviction and sentence especially at Paragraph 22 has stated in detail the voluntary acts on part of the prosecutrix. In view of the above, we are of the view that this a fit case wherein conviction of the accused under Section 376 be reversed and the impugned judgment and order be set aside.

In the result, Criminal Appeal No. 1002/1998 preferred by the appellant accused is allowed. The judgment and order of conviction and sentence dated 17.09.1998 of the learned Special Additional Sessions Judge, Court No. 23, Ahmedabad City in Atrocity Criminal Case No. 34/1997 is quashed and set aside.

Criminal Appeal No. 1148/1998 preferred by the State for enhancement of sentence is devoid of merits and stands dismissed.

Bail and bail bond, of the appellant, if any, stands discharged. Record and proceedings be sent to the concerned Trial Court forthwith.