Sunilji Vishnuji Thakor vs State Of Gujarat

Umesh A. Trivedi, J

[1.0] This Appeal under Section 374 of the Code of Criminal Procedure, 1973 is filed by the appellant â€" accused challenging the judgment of

conviction and order of sentence passed by the learned Sessions Judge, Mehsana dated 04.03.2014 in Sessions Case No.54 of 2013.

[2.0] The appellant â€" accused is found to have committed an offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. He has

been ordered to undergo five years Rigorous Imprisonment with fine of Rs.5000/- and in default of payment of fine five months Simple Imprisonment

for an offence punishable under Sections 363 and 366 of the Indian Penal Code for each of the offence whereas the appellant â€" accused is ordered

to undergo seven years Rigorous Imprisonment with fine of Rs.5000/- and in default of payment of fine five months Simple Imprisonment for an

offence punishable under Section 376 of the Indian Penal Code.

[3.0] As per the case of the prosecution, the appellant â€" accused, on 06.02.2013, at about 5:30 p.m. took away the prosecutrix from the lawful

guardianship of her father, with an intention that she may be compelled, to marry against her will, or seduced to illicit intercourse, and kept her in the

field of the appellant â€" accused and committed rape over her against her will where parents of the appellant are also said to have abetted that

offences. However, on conclusion of the trial, the parents of the appellant were acquitted by the learned trial Judge of all the charges levelled against

them whereas the appellant â€" accused is convicted and is ordered to undergo imprisonment as aforesaid.

[3.1] To prove the case against the appellant â€" accused the prosecution examined five witnesses, including the Investigating Officer and produced

and proved nearly 19 documents to bring home the charge against the appellant â€" accused. Vide Exh.5 charge for the aforesaid offences came to

be framed against the appellant - accused alongwith other two accused, who are the parents of the appellant, on 13.09.2013. The prosecution

examined P.W. No.1 - Dr. Dilipkumar Keshavlal Thakkar vide Exh.14, who medically examined the appellant â€" accused as also the victim on

13.02.2013. According to the deposition of the Doctor, the victim had given the history to him, which revealed that, on 06.02.2013, she called the

appellant near Sadhimata Temple, Kherwa as her parents wanted her to marry someone else whereas she wanted to marry the appellant, and

therefore, she had called the appellant to run away from there. It has been further deposed to by the Doctor, who recorded the history, that she had

threatened the appellant that she would die if he did not accompany her, and therefore, they had gone to the field of the appellant. It is further stated

that the appellant had sexual intercourse with her for five times. No doubt she has further stated in the history that it was under force /duress. Though

she is candid enough that there is no injury on her body but last intercourse was on the day before yesterday to the date of the examination. In short,

the history revealed that, she had on the contrary compelled the appellant to accompany her. Likewise the Doctor has deposed with regard to the

history given by the appellant â€" accused also. He has confirmed the history given by the victim. However, he has asserted that the sexual

intercourse was with her consent and will. Through the Doctor, Medical Certificate vide Exh.15, for examination of the appellant, was produced. Vide

Exh.18, Medical Certificate of the victim was produced and proved by the Doctor. Through the Doctor, vide Exh.21, OPD case papers alongwith

Radiological test performed over the victim was also produced. According to the Radiological finding, as deposed to by the Doctor, the age of the

victim is opined to be more than 17 years and less than 19 years.

[3.2] Vide P.W. 2, at Exh.22, the prosecutrix was examined before the Court where she deposed her date of birth to be 04.09.1995. She has further

deposed that she studied up to Standard Xth in Jaykorba Vidyamandir, Kherwa and she produced the certificate issued by the Principal of that School

showing her date of birth to be 04.09.1995, as recorded in School Register. The said certificate is produced and proved vide Exh.23. With regard to

the incident, she has slightly deviated from the history given to the Doctor. According to her deposition before the Court, she has deposed that on

06.02.2013 at about 5:30 p.m. while she had gone for clearing the dustbin near Hanumanji Temple, the appellant was standing there with bike and he

was drunk. It has been further deposed that she was forced to accompany the appellant or else he had threatened to kill her alongwith her family

members. It is further deposed that she was forced to sit on his bike holding her hand and he took her to his field. Thereafter, in the evening, he had

provided her food but she was weeping and did not eat the food. It is further deposed that she was threatened to be killed alongwith her family

members by the appellant if she moves from there. She has further deposed that forcefully he removed her clothes and had intercourse with her. On

07.02.2013, in the morning, the appellant came and provided her tea and went back as also he provided her meal two times in the morning and evening

and went back. Similarly, on 08.02.2013 also, he provided her tea as also meal two times. On 09.02.2013, she was provided with tea and meal as

aforesaid and he went back. However, at late night, after consuming liquor, he had sexual intercourse under force /duress with her. On 10.02.2013,

similar is the position with regard to providing tea as also meal. However, on 11.02.2013, tea and meal was served to her but in the evening, after

consuming liquor, he had sexual intercourse under force /duress with her. The witness â€" victim was cross examined in detail where she admitted

that the appellant â€" accused was studying in the same school where she was studying. In the cross examination, she has denied to have given any

history to the Doctor as also the Doctor did not ask her any history. The Police had interrogated her and noted down whatever was told by her.

However, she claimed that her statement was not read over to her. She has admitted in her cross examination that when her statement was recorded,

her parents and relatives were present there. It is deposed that till today no complaint to any higher Police Officer is made that her statement is not

recorded in terms to what she said. She was asked this question very specifically, as she had deliberately omitted to depose before the Court, which

was disclosed in her statement that they were in deep love and meeting frequently. Not only that, in her police statement she has stated that they both

were studying in the same School and they had sexual intercourse thrice in an open field near Sadhimata Temple and on knowing about their relations,

her parents scolded her. Though these facts were omitted to be deposed before the Court she has denied it to have so stated it to the Police, however,

it has been proved through the deposition of the Investigating Officer that she had so stated in her statement. Not only that, it has been so stated

before the Investigating Officer that after the appellant left from job, according to her, she met him in the field and obtained his mobile number and she

used to talk to him from the mobile phone of her mother. According to that police statement, every time she was calling him to meet her at different

places, though she has denied to have stated in her statement that she wanted to marry him and he did not like his wife. It was also stated in the

statement that as she had not completed the age of majority, they had decided to run away. However, the said statement, denied by her, is brought on

record through the deposition of the Investigating Officer. In short, from the deposition of the victim, it reveals that sexual intercourse with the

appellant was either under force or duress. However, the relations with the appellant is established through her own evidence.

[3.3] Vide Exh.27, the prosecution examined P.W. 3 â€" Sangeetaben Khodidas Sathwara, mother of the victim, who also confirmed the date of birth

of the victim to be 04.09.1995. Though, she is not a witness to the incident of kidnapping or of rape, she has deposed that when she was out to

purchase vegetables, while returning home, she did not find her daughter in the house, and therefore, she had inquired in the nearby vicinity but was

not successful. On the next day, when her nephew was asked about the victim, he had stated that he had seen the appellant â€" accused taking her

away towards Sadhimata Temple road, and therefore, they had gone to the house of the appellant where his parents were residing and on asking them

they got enraged and threatened them not to involve their son unnecessarily, and therefore, she did not make any inquiry about the victim. However,

she had registered the complaint with Mehsana Taluka Police Station, which she produced and proved at Exh.28. She has further deposed that, on

12.02.2013, the Police could find her daughter out and took her to the Civil Hospital for the purpose of examination and thereafter she was entrusted

to them. She had identified the appellant â€" accused before the Court, though nothing much turns on the cross examination of the witness. Suffice it

to say, she has denied that her daughter used to call from her mobile to the appellant.

[3.4] Vide Exh.29, Rajubhai Vithaldas Kadia, P.W. 4 was examined by the prosecution to prove the panchnama of the scene of offence. Since

nothing in particular, which may corroborate on the incident against the appellant, is found either in the panchnama or in the deposition of the panch

witness, it is not dealt with in detail hereafter.

[3.5] Vide Exh.33 the prosecution examined Arvindkumar Vinodchandra Patel â€" Investigating Officer, who recorded the FIR as also investigated

the case. Importantly, the witness was shown Exh.23, which is the certificate issued by the school authority, reflecting the date of birth of the victim

collected during the course of investigation. However, through the said witness, certain omissions were proved, as denied by the victim to have been

so stated in the statement. The Investigating Officer has already been cross examined to prove certain contradictions and inconsistency in the

deposition of the victim as also the mother of the victim but they are not so important to be dealt with in the facts of this case.

[4.0] Shri P.H. Buch, learned advocate for the appellant, vehemently submitted that considering the history given by the victim to the Doctor, who is

an independent witness, it is established beyond doubt that she was having love affair with the appellant and had relations with him since her school

days, and therefore, he has submitted that this is not a case where an offence under Sections 363, 366 or 376 of the Indian Penal Code could be

invoked against the appellant - accused. He has further submitted that the prosecution has miserably failed to prove the date of birth of the victim by

producing or proving the age through contemporaneous record. He has further submitted that the certificate of birth issued by the local authority would

be reliable instead of the certificate issued by the Principal of the School with regard to the date of birth. He has further submitted that the certificate

reflecting the date of birth, vide Exh.23, is said to have been issued by the Principal of the School where the victim studied is not duly proved as the

person, who issued it, is not examined by the prosecution, and therefore, he has submitted that the victim is not below the age of 18 years and

considering the evidence brought on record, it is clear that she had on her own left the lawful guardianship of her parents and joined the company of

the appellant and even if it is presumed that there is any sexual intercourse in between the victim and the appellant, it was on her free will and

voluntary consent, which is established from the evidence and surrounding circumstances on record, and therefore, the appellant â€" accused cannot

be convicted for the offences as aforesaid.

[4.1] He has further submitted that the appellant was aged 21 years, who developed the relation with the victim since they were studying in school

together. Not only for the time period which the prosecution relies and proves on record even prior thereto they had physical relations as deposed to

by the victim, though denied to have so stated in the police statement, same has been proved through the Investigating Officer. He has further

submitted that if this offence would have been committed a day prior to 03.02.2013, from the established facts on record, since it being with consent of

the victim, the appellant could not have been convicted for an offence under Section 376 of the Indian Penal Code. According to him, Clause Sixthly in

Section 375 of the Indian Penal Code came to be substituted with 18 years of age on 03.02.2013. Prior thereto, it was 16 years of age. At any rate,

according to his submission, when she has already crossed the age of 17 years 5 months and 2 days, she has reached near the age of discretion, and

therefore, it cannot be said that the appellant has committed any offence, as aforesaid, in view of the evidence brought on record, and therefore, he

has requested to acquit the appellant - accused of all the charges levelled against him.

[5.0] Ms. Moxa Thakkar, learned Additional Public Prosecutor, as against that, submitted that even if it is presumed that the alleged act, which

constituted offfence, was with consent of the victim, since an offence is committed after 03.02.2013 and when it is proved that she is below the age of

18 years, an offence under Section 376 of the Indian Penal Code can be said to have been committed and for which minimum punishment provided for

is 7 years, which is imposed by the learned trial Judge. Not only that, according to her submission, the act of the appellant of sexual intercourse is

supported by scientific evidence. In view of the the serological report, which is at Exh.42, where in the urethral swab and vaginal swab, presence of

semen is found, though the group could not be determined. So far as age of the victim is concerned, according to her submission, since the victim

herself has deposed about her birth date and it is supported through the certificate as to date of birth recorded in the school register, as the same is

issued by the school authority, which is at Exh.23 and as on the date of the incident, the victim is proved to be below the age of 18 years, the appellant

â€" accused has committed all the offences charged against him. There are certain contradictions in the deposition of the victim but since it is not in

respect of the material aspect, it is of no consequence, and therefore, the Appeal is required to be dismissed.

[6.0] Heard learned advocates for the appearing parties. For determining this Appeal, the age of the victim is most relevant. According to the

deposition of the victim, her date of birth is 04.09.1995, which is supported by the deposition of her mother also. Not only that, the said date of birth is

supported by the certificate at Exh.23 issued by the school authority, according to their Register maintained at the time of admission in the school. Not

only that, the age to be more than 17 years and less than 19 years is also supported by ossification test. The certificate issued by the Doctor, who

deposed, opined her age to be more than 17 years and less than 19 years. Therefore she could be of 17 years also. There is no reason to discard the

date of birth of the victim to be 04.09.1995. There is no material on record or any cross examination on that aspect. If the victim cannot say her date

of birth, her mother, who has given birth to the child, has specified the date of birth of the victim. Not only that, it is supported by the documentary

evidence like certificate issued by the school authority, according to the Register maintained in the course of their duty, and therefore, non examination

of Principal of the School, who is said to have issued that certificate, is of no consequence. The age of the victim to be 17 years and 5 months 2 days

also gets corroboration from scientific evidence in the form of ossification test conducted by the hospital. The same is also deposed to before the

Court by the Doctor, who has produced the certificate too. In absence of any submission with regard to the falsehood of the date of birth or any

contrary evidence produced by the appellant - accused, it can be conclusively held that the date of birth of the victim was 04.09.1995 therefore her

age to be 17 years 5 months and 2 days as on the date of the incident.

[6.1] Shri P.H. Buch, learned advocate is not successful in showing any other date of birth of the victim or to create at least any doubt with regard to

her date of birth. Of course he cannot change the evidence, which is already produced before the trial Court and hence, he has failed to show the age

of the victim to be more than 18 years. The only reliance on higher range of age stated in ossification test will not be of any help to the appellant as the

lower age of the victim shown in the ossification test itself is supported by not only ocular evidence but also documentary evidence in the form of

certificate of birth issued by the school authority as mentioned in their Register maintained during their official duty and in absence of any other

contrary evidence led by the defence, if the date of birth of the victim is proved to be less than 18 years, either sexual intercourse was with consent or

without consent pales into insignificance. Considering Clause Sixthly as substituted in Section 375 of the Indian Penal Code with effect from

03.02.2013 any sexual intercourse with the victim, with or without her consent, when she is under 18 years of age is an offence of rape. As such,

considering even the history by the victim to the Doctor, as also the deposition before the Court, the act of sexual intercourse was under force /duress

at the instance of the appellant, and therefore, irresistible conclusion is that the appellant â€" accused has committed an offence under Section 376 of

the Indian Penal Code. Not only that, for an offence under Section 363 of the Indian Penal Code, since the appellant took the victim to the field and

kept her nearly for 6 days when she is aged below 18 years, offence under Section 363 as also Section 366 of the Indian Penal Code can be said to

have been made out. Considering the overall evidence led before the Court, I see no reason to interfere with the judgment of conviction and also order

of sentence as recorded by the trial Court as he has imposed only minimum sentence for an offence under Section 376 of the Indian Penal Code.

[7.0] In that view of the matter, the Appeal fails and it is hereby dismissed. The judgement of conviction and order of sentence imposed by the trial

Court is hereby confirmed. The bail bond shall stand cancelled. The appellant is given eight weeks time to surrender, failing which the trial Court is at

liberty to issue warrant against him.