State of Gujarat vs Dipak Sakharam Mahale

Akil Kureshi, J.—These appeals arise out of the same judgment dated 24.6.2011 passed by the learned Sessions Judge, Surat in Sessions Case No. 167 of 2009. The original accused was charged with offences punishable u/s 363, 366 and 376 of the Indian Penal Code and by the impugned judgment he was convicted for such offences and sentenced to rigorous imprisonment for 5 years, 7 years and 10 years respectively. The accused challenged his conviction and sentence by filing Criminal Appeal No. 1464 of 2011. State seeking enhancement of sentence has preferred Criminal Appeal No. 1101 of 2011. Briefly stated, the prosecution version was that daughter of the first informant (hereinafter to be referred to as ''the victim'') aged about 14 years was kidnapped by the accused on 16.4.09 at about 21 hours with an intention of marriage. They remained together for about 17 days during which period, the accused also raped her. She was brought back on 4.5.09 before Katargam Police Station. The parents were given custody of the girl on the next day.

Suresh Gullani, PW-1, Ex. 9, father of the girl and the first informant deposed that his daughter was born on 18.6.95. On 16.4.09, at about 9 O''clock after she had gone out of the house to dispose of old rotis, she did not return. He had searched for her about 3 to 4 days and thereafter intimated Katargam Police Station on 19.4.09. A few days later, he received a call from his daughter informing him that accused Dipak had taken her. On 4.5.09, the accused had returned his daughter. He brought back his daughter from the police station on the next day. She had informed him that the accused had kidnapped her showing a knife and had taken her to Raigad where in a temple even the ceremony of marriage was performed. He produced at Ex. 10, the FIR dated 4.5.09.

In the cross-examination, he admitted that his daughter used to leave the house quite often.

Mother of the victim girl, Vijayaben, PW-2 was examined at Ex. 12. She gave similar version of her daughter not returning in the night of 16th April 2009 after she had gone outside the house. She had also inquired from her daughter when she returned as to what had happened. She was also informed by the victim girl of the accused having forcibly taken her to Raigad. This witness produced at Ex. 15, the birth certificate of the victim issued by the Maharashtra administration showing her date of birth as 18.6.95.

Victim girl, PW-13, Ex. 42 deposed that when she was studying in 9th standard, on 16.4.09 at about 8.30 to 9.00 at night, she had gone to the end of the lane of her society to give rotis to an old lady. The accused came there at that time on a Honda motorcycle, showed her a knife and asked her to sit on the motorcycle or else he would murder her parents. She got scared and sat with him. He took her to railway station and then to bus stand from where by bus she was taken to village Gorswadi in Raigad. He forced her to marry and even sprinkled hot oil on her body causing her burn injuries. She was taken to a temple where he tied a mangalsutra. Parents and uncles of the boy were also present there. At night, he committed forcible intercourse with her. Babu, brother of the accused thereafter came to fetch them. She was taken to Surat Police Station by the accused and his brother.

In her cross-examination, suggestion was put that there was love affair between the accused and the victim which she denied. She, however, admitted that there were many houses in her society occupied by many people. When she was brought to Katargam Railway Station, many people were present there. At the bus stand also, many people were present. At the railway station as well as at the bus stop, police stations were located. When they travelled by bus, many bus-stands came where also many people were present. She admitted that when she was taken from her society, she had not shouted for help nor she had shouted at any other places, such as railway station or bus stops. She never tried to get down from the motorcycle. She clarified that since ''mama'' of the accused was sitting on the motorcycle, she could not get down. She immediately admitted that in her examination in chief, she had not mentioned about the presence of ''mama'' on the motorcycle.

Dr. Rajiv Narayan, PW-5, Ex. 25, had examined the accused as well as the victim. He had found the accused physically mature and able to perform sexual acts. After examination, he referred the victim to the Gynecology Department where Dr. Rujutaben Desai, PW-4, Ex. 22 had also examined her. She had found the hymen of the girl torn which was an old tear and her vagina permitted entrance of two fingers easily, on the basis of which, she concluded that the girl was used to sexual intercourse. For age estimation, the victim girl was examined by Dr. Pankaj Gandabhai, PW-3, Ex. 19. On the basis of the x-ray, he estimated the age of the girl between 14 and 16 years as on 7.5.09.

Samsing Vasava, PW-17, Ex. 55, was the Investigating Officer. He gave detailed account of the steps taken by him for investigating the offence.

One Tanaji Raut, PW-18, was the Principal of the primary school where the victim had been admitted. In his deposition at Ex. 66, he produced the extract of school register at Ex. 67 in which also, the birth date of the victim was shown as 18.6.95.

This in nutshell is the evidence on record.

From the above evidence, the following aspects immediately become clear. Firstly, the victim girl was less than 14 years of age on the date of the incident. Her date of birth was consistently shown in different official records as 18.6.95. In the certificate produced at Ex. 11, date of birth was shown as 18.6.95. In the extract of the school register produced by the Principal of the school, Ex. 67, also the same date of birth was shown. Birth certificate issued by the Government Authorities, Ex. 15, also recorded the same date of birth. There was thus clear, consistent and reliable documentary evidence of the date of birth of the victim. These documents were contemporaneous and existed long before the incident. There was no need or possibility of any manipulation. Such documentary evidence was also corroborated by the medical evidence. Age estimation of the girl as per Dr. Pankaj Gandabhai, PW-3, was between 14 and 16 years. This was done on the basis of x-rays of the girl.

Second important aspect of the matter is that the victim girl and the accused disappeared on 16.4.09. This has come through reliable evidences of the complainant, Suresh, PW-1, father of the victim girl, Vijayaben, PW-2, mother of the victim and the victim herself, PW-13. As per the deposition of the parents of the victim, on 16.4.09, at about 9 O''clock night, the victim went out of the house for a small errand. She did not return thereafter. The family looked for the girl for 3 to 4 days before lodging a missing persons report before the police which was produced at Ex. 18. The accused returned with the victim to the police station on 4.5.09. The girl''s custody was handed over to the police. Even the victim girl, PW-13, herself had similarly stated that on 16.4.09, when she had gone out of the house till the end of the lane, the accused came and took her on a motorcycle. She was thereafter taken to bus-stand from where she was taken to the village of the accused in Raigad district. The victim also stated that during the period when she was with the boy, he performed ceremony of marriage with her and at night had intercourse with her. In the cross-examination, the defence did not seriously challenge the victim on these aspects of the matter. The main thrust of the cross-examination was that the victim had voluntarily gone with the accused since she had love affair with him. The significant statement of the victim that the accused committed intercourse with her was not even challenged.

In view of the above conclusion, in our opinion, offences u/s 363, 366 and 376 are established against the accused. He had kidnapped the girl below 14 years of age. He had tried to perform marriage with her. He also had intercourse with her while she was with him for about 17 days. Though these offences are established from the evidence on record, in order to decide the sentences, it would be necessary to look little more closely the events of 16.4.09 and shortly thereafter. Though sought to be projected by the victim and her parents that the accused forcibly took her away on his motorcycle on 16.4.09, the evidence suggests to the contrary. In this respect, depositions of PW-1 and PW-2 parents of the victim would be of no use since they were not eyewitnesses nor did they claim to have any information about any previous incident which would throw some light on the nature of events which took place on 16.4.09. In this context, deposition of the victim herself would be crucial. We may recall, in the examination in chief, she did assert that the accused came on his motorcycle and forced her to sit behind him in the motorcycle under the threat of causing serious harm to her parents and she was taken away at a knife point. However, in the cross-examination, she admitted that there were many houses occupied by many people in her society. There were movements of people around at that time. There were many people at the railway station and at the bus stop where she was taken by the accused. In the bus stands which came on way to Raigad also, there were many people. She did not shout for help at any of these places, either in her society when she was being forced by the accused, or at the railway station or at the bus stops. Even while being taken on the motorcycle, she neither shouted nor tried to get down. This she explained by suggesting that since ''mama'' of the accused was with them on the motorcycle, she could not escape. This was clearly an afterthought. In her examination in chief, she never mentioned about the presence of ''mama''. Her consistent version was that the accused came on a motorcycle and showed her a knife, threatened her with dire consequences and forced her to sit on the motorcycle.

In view of the above discussion, we find that the testimony of the victim on being forcibly kidnapped by the accused is wholly unreliable. The defence had in fact suggested previous love affair between the two, which of course, the victim denied. Nevertheless, her assertion that she was forced to sit on the motorcycle against her wish and was taken at a distant place by bus and kept there against her wish for 17 days cannot be believed.

Since the victim was just 14 years of age, in the context of the offence of kidnapping and rape, her consent was wholly irrelevant. The above conclusion would, however, have a bearing on the nature of sentence to be awarded. We may recall that the learned Judge has awarded sentence of 10 years for offence u/s 376 of the Indian Penal Code and lesser sentences for offences u/s 363 and 366 of the Indian Penal Code. The accused himself was aged about 19 years at the time of the incident. He was thus an young boy who undoubtedly committed the offence, in our opinion, should not be visited with the punishment as harsh as sentencing him to rigorous imprisonment for 10 years. Offence of rape u/s 376 of the Indian Penal Code prescribes minimum punishment of 7 years unless for adequate and special reasons to be recorded in the judgment. Looking to the tender age of the victim girl, we may not reduce the sentence to below 7 years. Nevertheless, sentence of more than 7 years, in our opinion, is too harsh. In the result, conviction of the accused for offences u/s 363, 366 and 376 of the Indian Penal Code is confirmed, but for offence u/s 376, his sentence is reduced to seven years of rigorous imprisonment. Rest of the sentences and the direction for payment of fine recorded by the learned Sessions Judge remain unchanged. All sentences to run concurrently.

Accordingly, Criminal Appeal No. 1464 of 2011 filed by the accused is allowed in part. Criminal Appeal No. 1101 of 2011 of the State for enhancement is dismissed.

R & P be transmitted to the Trial Court.