Rameshbhai Thakersibhai Maheriya vs State of Gujarat

K.J. Thaker, J.—The present appellant has preferred this appeal under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 28-12-2010 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Rajkot in Sessions Case No. 70 of 2009, whereby, the learned Judge has convicted the appellant under Sec. 363 of I.P.C. and sentenced to undergo S.I. for seven years and to pay a fine of Rs. 5,000/-, in default, to undergo further S.I. for six months. The appellant is also convicted under Sec. 366 of I.P.C. and sentenced to undergo S.I. for a period of seven years and to pay a fine of Rs. 5,000/-, in default, to undergo further S.I. for six months. The appellant is also convicted under Sec. 376 of I.P.C. and sentenced to undergo S.I. for a period of seven years and to pay a fine of Rs. 5,000/-, in default, to undergo further S.I. for six months, which is impugned in this appeal. The brief facts of the prosecution case is as under:

2.1. The complainant-Ushaben Mahendrabhai Pipadiya lodged her complaint dated 5-1-2009 with Assistant Sub-Inspector, Gandhigram Police Station, Rajkot alleging that the appellant-accused on 28-12-2008 enticed her minor daughter - the prosecutrix and took her from the lawful guardianship of the complainant on false pretext and promise to marry her with intent to commit sexual intercourse and thereby abducted her and committed sexual intercourse with her against her will. Therefore, the said complaint came to be lodged against the accused.

Thereafter, the accused came to be charge-sheeted on before the Court of the learned Chief Judicial Magistrate First Class, Rajkot for the alleged offence punishable under Secs. 363 , 366 and 376 of I.P.C. The case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 70 of 2009.

The accused was charged vide at Exh. 8. The appellant - accused pleaded not guilty and claimed to be tried.

In order to bring home the charge leveled against the appellant-accused, the prosecution has examined the following witnesses:

Ushaben Mahendrabhai Exh. 16

Dr. Kavitaben Maiyaram Dudharejiya Exh. 19

Dr. Pravinchandra Dayalal Vala Exh. 23

The prosecutrix/victim Exh. 27

Jaswantsinh Chandrasinh Sindha Exh. 28

Bhaskarbhai Rameshchandra Upadhyaya Exh. 29

Niraliben Mahendrabhai Exh. 31

Niruben Kishorgiri Goswami Exh. 34

Pratik Pareshbhai Shingala Exh. 35

Shivrajbhai Kathadbhai Jebaliya Exh. 37

Payalben Kantibhai Kalriya Exh. 39

Rakeshbhai Maganbhai Ghaghada Exh. 42

Ashwinbhai Maganbhai Ladva Exh. 44

Rajshriben Jaswantsinh Sindha Exh. 45

Babubhai Ghusabhai Bhatti Exh. 46

Mansinh Jagabhai Hamirpara Exh. 48

Gautambhai Anilbhai Ghanani Exh. 53

Dhagat Vijay Dolatbhai Exh. 57

Rajmukundsinh Balvantsinh Exh. 60

Abdulbhai Karimbhai Chotiyara Exh. 61

The prosecution has also produced the following documentary evidence before the trial Court:

Complaint Exh. 17

Medical certificate of accused Exh. 24

Medical certificate of victim Exh. 20

Panchnama of clothes of victim Exh. 43

Copy of register of Mahasiddhi Hotel Exh. 54

Complaint under Sec. 154 of Cr.P.C. Exh. 62

Yadi of muddamal sent to F.S.L. Exh. 63

Letter of Zanana Hospital Exh. 64

Letter of Zanana Hospital to F.S.L., Junagadh Exh. 65

Receipt of F.S.L. Exh. 66

F.S.L. Report Exh. 67

Thereafter, after examining the witnesses, further statement of the appellant-accused under Sec. 313 of Cr.P.C. was recorded in which the appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. Sessions Judge, Rajkot vide impugned judgment and order dated 28-12-2010 held the appellant-accused guilty to the charge leveled against him under Secs. 363 , 366 and 376 of I.P.C. and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Rajkot the present appellant has preferred this appeal.

Heard Mr. B.B. Naik learned Senior Advocate appointed as amicus curiae for the appellant and Ms. Monali Bhatt learned A.P.P. for the respondent-State.

Mr. Naik learned Senior Advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under Secs. 363 , 366 and 376 of I.P.C. is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Naik learned Advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities, and therefore, the same deserves to be quashed and set aside.

Per contra, learned A.P.P. Ms. Bhatt has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Bhatt learned A.P.P. further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused to undergo imprisonment of seven years, and therefore, the present appeal deserves to be dismissed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant and considered the submissions made by the learned Advocates appearing for the parties. Considering the evidence on record, the conviction imposed upon the appellant cannot be sustained even for a minute because the age of the prosecutrix even on the date of the incident was more than 16 years and in light of the decision of the Apex Court in the case of Alamelu and Another Vs. State represented by Inspector of Police, and the statement of the prosecutrix. Even before the Medical Officer, she has stated that she was in love with the accused since one and 1/2 years and therefore, she had eloped with him and went to Ankleshwar and stayed there as husband and wife. The provisions of Secs. 363 , 366 and 376 of I.P.C. reads as under:

"363. Punishment for kidnapping:-Whoever kidnaps any person from (India) or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Kidnapping, abducting or inducing woman to compel her marriage, etc.:-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid).

Punishment for rape:-(1) Whoever, except in the cases provided for in sub-sec. (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine."

Even from the evidence of prosecutrix and the medical evidence produced on record, the conviction will have to be up-turned. The conviction is also required to be up-turned only on the short point of age of the prosecutrix in view of the latest decision of the Apex Court. Had the learned trial Judge up-dated himself with the decision of the Apex Court relating to the age, he could not have held that the victim was below 15 years. The medical evidence and the latest decisions of the Apex Court in the case of : (1) Alamelu and Another Vs. State represented by Inspector of Police, , (2) K.P. Thimmappa Gowda Vs. State of Karnataka, , and the decision of this Court in the case of Bhupatbhai Somabhai Sardiya v. State of Gujarat, reported in 2012 (31) GHJ 140, will enure for the benefit of the accused who was in love with prosecutrix. Having gone through the oral testimony of the prosecutrix herself and the facts and circumstances of the case, it appears that there was no rape, on the contrary, the prosecutrix in her testimony admits that she had gone with the appellant from place to place and her age at the time of incident to be of more than 16 years. A view reasonably possible that prosecutrix had sex with appellant with her consent and hence there was no offence under Sec. 376 because sex with a woman above 16 years of age with her consent is not rape, is what been held by the Hon''ble Apex Court in the case of K.P. Thimmappa Gowda Vs. State of Karnataka, . However, this takes this Court to Secs. 363 and 366 of I.P.C. Elopement at her own will not make the accused guilty. In that view of the matter, considering the oral evidence as well as documentary evidence produced on record, the present appeal deserves to be allowed. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 28-12-2010 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Rajkot in Sessions Case No. 70 of 2009 is hereby quashed and set aside. The accused is acquitted of all the charges leveled against him and he is ordered to be set at liberty forthwith, if he is not required for any other offence. R. & P. to be sent back to the trial Court.