RAJUBHAI SON OF VITTHALRAO @ MITHANLAL KHATIK vs STATE OF GUJARAT

By way of present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of acquittal dated 31.3.2000 passed by the learned Sessions Judge, Ahmedabad, in Sessions Case No.268 of 1998. The said case was registered against the appellant - original accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The appellant is sentenced to undergo R.I. for a period of 02 years on each of the counts that is under Section 363 as well as under Section 366 of the Indian Penal Code. Both the sentences to run concurrently. The period of sentence undergone during trial is ordered to be given set of. No separate order for fine is passed. The accused is acquitted for the offence punishable under Section 376 of the Indian Penal Code.

The brief facts of the case is that the prosecution was initiated on the basis of FIR Ex.9 lodged by Sumanben wife of Raghunandan Sharma mother of prosecutrix. According to the prosecution on and around 2.12.1995 the husband of the complainant was hospitalized and the complainant was required to attend the hospital leaving her children at his residence. That on 3.12.1995 she went to Sanand to have Darshan of Godess Viratmata. That on that day the prosecutrix Jtoyiben alias Shardaben was requested to attend her father in the hospital as alleged. That on that day as the complainant returned from Sanand at about 10:30 p.m. her other children viz. Kirti and Kalpna informed her that that prosecutrix had left the hospital under the guide of going to residence but in fact had been induced by the accused to leave home and complainant?s lawful guardianship without the consent of anybody. Upon hearing this, she inquired about the prosecutrix at diferent places, however the prosecutrix could not be traced. In the meanwhile the complainant also came to know that the prosecutrix had taken away Rs.1500/and silver ornaments with her. With these allegations FIR Ex.9 referred to above was lodged with Amraiwadi Police Station on 4.12.1996 i.e. on next day of the incident. On the strength of the FIR the offence was registered at C.R.No.587 of 1995 under Sections 363 and 366 only of the Indian Penal Code but after completing the investigation the chargesheet was filed in the Court of learned Metropolitan Magistrate Court No.7 on 1.7.1996 for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. Since the offences under Sections 366 and 376 of the Indian Penal Code being exclusively triable by the Court of Sessions, the learned Magistrate vide his order dated 19.8.1998 committed the matter to the Sessions Court as provided under Section 209 of the Criminal Procedure Code. Thus, upon receipt of record and proceedings from the Court of Magistrate Sessions Case No.268 of 1998 was registered and proceeded in accordance with law.

Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused person was arrested and, ultimately, chargesheet came to be filed against him in the Court of learned Magistrate.

Thereafter, charge came to be framed and explained to the accused person, to which the accused person not pleaded guilty and claimed to be tried.

In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidence.

Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.

After hearing both the sides, the learned Sessions Judge, Ahmedabad, by his judgment and order dated 31.3.2000 passed in Sessions Case No.268 of 1998, convicted the accused person as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 31.3.2000 passed by the learned Sessions Judge, Ahmedabad, the appellant has preferred the present appeal before this Hon''ble Court.

Heard Mr.Umang H. Oza, learned advocate appearing for appellant and Mr.N.J.Shah, learned Additional Public Prosecutor appearing on behalf of the respondent - State.

Mr.Umang H. Oza, learned advocate appearing for appellant has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.

He has contended that chargesheet was filed for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. He has contended that present appellant was acquitted for the offence punishable under Section 376 of the Indian Penal Code. He has contended that from oral version of the victim and from crossexamination of the victim it is proved and established fact that physical relation was made by the appellant with the consent of the victim. He has further contended that she stayed with the appellant - accused at different places for not less than four months. He has further contended that prosecutrix was in love with the appellant - accused and at the time of socalled offence she was aged 17 years, 02 months and 18 days. He has contended that so far as provisions of kidnapping from the legal guardianship of the Indian Penal Code are concerned, no doubt at the time of incident the victim was minor but with her own consent she joined with the present appellant - accused on her own will, therefore learned Judge has wrongly convicted appellant - accused for 02 years for each offence punishable under Sections 363 and 366 of the Indian Penal Code. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.

Mr.N.J.Shah, learned Additional Public Prosecutor appearing on behalf of the respondent - State has drawn attention of the Court to the provisions of Sections 363 and 366 of the Indian Penal Code and contended that age of the prosecutrix at the time of incident was below 18 years of age. She was taken from the legal guardianship of her parents without their consent. He has contended that the learned Judge has rightly considered the issue in question. He has contended that main ingredients of Sections 363 and 366 of the Indian Penal Code are prima facie proved beyond reasonable doubt. He has prayed to dismiss the appeal of the appellant and confirm the judgment and order of the conviction.

Heard learned advocates for the respective parties. I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesscomplainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties.

In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while convicting the appellant - accused and adopting the said reasons, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.

In the result, the Appeal is hereby dismissed. The impugned judgment and order of conviction dated 31.3.2000 passed by the learned Sessions Judge, Ahmedabad, in Sessions Case No.268 of 1998, is hereby confirmed. The bail bond, if any, shall stand cancelled. The appellant is directed to surrender before the jail authority within four weeks from today. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.