Gujarat High Court
Laxman Jagdish Kushwara vs State Of ... on 16 January, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/270/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 270 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India, 1950
or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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LAXMAN JAGDISH KUSHWARA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR SHAKEEL A QURESHI, ADVOCATE for the Appellant(s) No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 16/01/2015
ORAL JUDGMENT
Page 1 of 10
R/CR.A/270/1997 JUDGMENT
1. The present appeal has been filed by the appellant under Section 374 of the Criminal Procedure Code, against the judgment and order dated 27.2.1997 passed by learned Additional Sessions Judge, Surat in Sessions Case No.24 of 1996, whereby the appellant- accused was convicted for the offence under Sections 363 and 366 of the Indian Penal Code. By the impugned judgment the appellant was sentenced to undergo imprisonment for a period of one year and ordered to pay Rs.500/- fine for offence under Section 363 of the Indian Penal Code and in default of payment of fine, simple imprisonment for a period of 10 days was imposed. The appellant was convicted and sentenced to imprisonment for one year and ordered to pay fine of Rs.700/- for offence under Section 366 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of 15 days was imposed.
2. The case of the prosecution in short is that the prosecutrix was minor at the time of the incident and on 6.3.1995, by giving a false promise to the prosecutrix that he would marry her, the accused had kidnapped the prosecutrix from the guardianship of the complainant and thereby committed an offence under Sections 363 and 366 of the Indian Penal Code. A complaint in this regard was given by the complainant, Mafatbhai Hirabhai Vaghela to Pandesara Police Station. 2.1 Thereafter, investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Page 2 of 10 R/CR.A/270/1997 JUDGMENT Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
2.2 In order to bring home the charges against the accused, prosecution has examined several witnesses. The proseuction has also led documentary evidence in support of its case. 2.3 Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him.
2.4 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellant-accused.
2.5 Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 5.7.1990 passed by learned Additional Sessions Judge, Ahmedabad Rural in Sessions Case No.103 of 1989, the appellant - accused has preferred the present appeal before this Court.
3. It is submitted by Mr.Qureshi, learned advocate for the Page 3 of 10 R/CR.A/270/1997 JUDGMENT appellant that the judgement of the learned Additional Sessions Judge is quite erroneous on facts as well as on law. He also submitted that the learned Sessions Judge has not appreciated the evidence on record according to the well settled principle of Criminal Jurisprudence. He further submitted that the Court below has failed to appreciate that there were many glaring and serious infirmities in the case of prosecution which have been very lightly brushed aside by the learned Judge which has caused failure of justice. He also submitted that the learned Additional Sessions Judge has gravely erred in convicting the present appellant u/s. 363, 366 of IPC despite the fact that the learned trial Judge has observed on page 10 that as the prosecution has not proved the case beyond reasonable doubt, therefore, the benefit of doubt is required to be given to the present appellant, however, the learned Additional Sessions Judge has merely on the ground of age of the girl passed the order for conviction and that too when the age has not been proved by the prosecution.
4. Mr.Qureshi further submitted that in the present case the prosecution case is that the girl is minor and to that effect the Doctor has been examined at Ex.6 and as per the deposition given by the Doctor, he has specifically opined that his opinion may differ in respect of the age, it may be 4 years more or it may be less 4 years. More particularly the doctor has also deposed that the radiologist can say the exact age but in the present case admittedly the radiologist has not been examined by the prosecution and in that view of the Page 4 of 10 R/CR.A/270/1997 JUDGMENT fact the prosecution has failed to prove the age of the girl. on the contrary, as per the deposition of the father and mother of the girl at Ex.12 & 14, it has been stated that the elder daughter, Kokila is aged 20 to 21 years and the victim is younger by two years than the Kokila. Therefore. in that view of the fact, the learned Additional Sessions Judge has overlooked the deposition given by the father and mother of the prosecutrix at Exh.12 & 14 and in that view also the prosecution has failed to prove the age of the victim. Therefore, also conclusion by the learned Additional Sessions judge of girl being minor is illegal, improper and against the evidence on record. He also submitted that the prosecution has not examined some important witnesses. Therefore, in that view a1so there is lacuna in proving the case against the accused under Section 363 and 366 of the Indian Penal Code. He submitted that the prosecution has failed to prove the case against the present appellant beyond all reasonable doubt and the witnesses examined could not prove that prosecturix was a minor. On the contrary, as per the deposition of the parents of the girl as well as her fried Sushila who has been examined at Ex.15 says that the victim was around 18 years of age. It is further submitted that the learned trial Judge has categorically observed that as the present appellant and the victim girl were together only for some hours and both have been traced on the same day, therefore, in that view of the fact also it cannot be said that the present appellant has committed an offence u/s.363, 366 IPC. He submitted that in view of above, this appeal may be allowed and the judgment Page 5 of 10 R/CR.A/270/1997 JUDGMENT and order of the lower Court may be reversed. He relied on the following authorities, in support of his submission.
a) Alamelu v. State reported in (2011) 2 SCC 385,
b) Mohd. Imran Khan v. State (Govt. of NCT of Delhi) reported in (2011) 10 SCC 192,
c) S. Varadarajan v. State of Madras reported in AIR 1965 Supreme Court 942,
d) Shyam and Another v. State of Maharashtra reported in AIR 1995 Supreme Court 2169,
e) Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v.
Sushilaben Kanubhai Tevar and Anr. reported in 2009 3 G.L.H. 664,
f) Mussauddin Ahmedabad v. State of Assam reported in (2009) 14 SCC 541 and
g) Bhupatbhai Somabhai Sardiya v. State of Gujarat reported in (2012) 31 GHJ 140.
5. Per contra, Ms.Bhatt has taken this Court through the evidence and has submitted that the judgment of the learned Trial Judge is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. She has submitted that the age of the prosecutrix was below 16 years and the fact that she was forced to leave the parental home without consent of her parents would be the material aspect and, therefore, Sections 363 and 366 of Page 6 of 10 R/CR.A/270/1997 JUDGMENT the IPC would be attracted. She submitted that since the prosecutrix was minor, her consent cannot be taken into consideration. She has submitted that the judgments cited by learned Counsel for the appellant would not apply to the facts of this case as the age of the prosecutrix was below 16 years; even if she was a consenting party, that fact is of no consequence. She also relied on the latest decision of the Apex Court reported in Naushad v. State of Uttar Pradesh (Criminal Appeal No.4505/2005, decided on 16.03.2007). She has therefore submitted that in view of the fact the accused had promised her to marry, this is a ground to uphold the judgment of the learned trial Judge. Ms.Bhatt has also tried to distinguish the decision reported in the case of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr. reported in 2009 3 G.L.H. 664 and has stated that the girl in the said case was more than 18 years. Therefore, the said decision will not apply to the facts of this case. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed.
6. Before considering the case on merits, it would be profitable to refer to the Provisions of Section 363 and 366 of the Indian Penal Code, which are 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.
XXX XXX XXX
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R/CR.A/270/1997 JUDGMENT
366. 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; 1[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 she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid].
7. At this stage, it is relevant to reproduce herein below certain observations made by the respective Courts :-
7.1 In S. Varadarajan v. State of Madras (supra) "She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her.
She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own that perhaps an unlettered girl hailing from a rural area."
7.2 In Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan (supra) "We have heard learned Counsel for the respective parties and have perused the oral as well as documentary evidence on record. It is a matter of record that the prosecutrix went missing from her house in the noon hours of 07.09.2004. The document on record at Ex.11 is the School Leaving Certificate of the prosecutrix, which is a conclusive piece of evidence for the purpose of ascertaining the age of a person. In the said document, the date of birth has been shown as 31.08.1986. Page 8 of 10
R/CR.A/270/1997 JUDGMENT Even otherwise, the said date of birth has not been disputed by the prosecution. Therefore, admittedly and evidently, on the day when the prosecutrix went missing from her house, she was more than 18 years of age."
7.3 In Bhupatbhai Somabhai Sardiya (supra) "8.1 The prosecutrix then goes on to depose that similar act was committed repetitively by accused - Bhupat not only at mine, but at other places including the hut and that time, there were other persons present in the hut during the night. At that point of time, she did not raise any cry for help. It also emerges from her evidence that she had moved with accused - Bhupat at different places in public transport as well and on motorcycle and she did not raise any shout for help at that time also."
8. Having considered the evidence on record, the prosecution has failed to prove the age of the prosecutrix by cogent evidence,as there is variance in the deposition of the witnesses. Though ossification test was conducted and parents of the victim were examined, there are contraditions in their evidence and the age of the prosecutrix could not be proved by the prosecution. It is a matter of fact that the accused and prosecutrix were in love with each other and they were willing to marry each other. Therefore, it cannot be said that the accused-appellant has committed offence under Sections 363 and 366 of the Indian Penal Code. It appears that learned trial Judge has convicted the accused on conjecture and surmises and the judgment is not based on evidence, which is borne out from record.
9. Considering the facts and circumstances of the case and evidence on record, I am of the opinion that the decision in the case Page 9 of 10 R/CR.A/270/1997 JUDGMENT of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr. would apply to the facts of this case as in this case also, it is not proved beyond reasonable doubt that the girl was below the marriageable age. It would not be out of place to state that the prosecutrix was a consenting party she was neither abducted nor was seduced. Therefore, the appeal is required to be allowed by reversing the impugned judgment of the learned Additional Sessions Judge.
10. The Criminal Appeal is allowed. The judgment and order dated 27.2.1997 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.24 of 1996 is quashed and set aside. The accused is acquitted of the charges levelled against him. As the accused is on bail, the bail and bail bond stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to him by the respondent-State. Record and Proceedings be sent back to the trial Court concerned forthwith.
Sd/-
(K.J.THAKER, J) *malek Page 10 of 10