Gujarat High Court
Tulsibhai Somabhai Parmar vs State Of ... on 8 January, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/160/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 160 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 as No
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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TULSIBHAI SOMABHAI PARMAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR CB GUPTA with MR BM GUPTA, ADVOCATE for the Appellant(s) No. 1
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 08/01/2015
ORAL JUDGMENT
Page 1 of 13
R/CR.A/160/1997 JUDGMENT
1. Heard learned Advocate/s for the Appellant and learned Additional Public Prosecutor Ms. Monali Bhatt for the respondent - State.
2. This appeal is directed against the judgment and order of the learned Additional Sessions Judge, Ahmedabad (Rural) dated 06.02.1997 in Sessions Case No.39/1990.
3. The appellant was put to trial for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and he came to convicted for these offences under Section 235(1) of the Code of Criminal Procedure and was directed to suffer imprisonment as under :-
Rigorous Imprisonment for a period of one year and ½ years for each of the offences and payment of fine of Rs.1,000/= each, and in default simple imprisonment for a period of one and ½ years.
The accused came to be convicted after the trial was over.Page 2 of 13
R/CR.A/160/1997 JUDGMENT
4. Learned Counsel for the appellant Mr. C.B. Gupta for the appellant has taken this Court through the entire evidence and even the operative part of the conviction.
As pointed out, in light of the provisions of Sections 363, 366 and 376 of the Indian Penal Code, when there is a doubt about the age of the prosecutrix just on the say of the complainant, when there is no corroboration from the prosecutrix and against the medical evidence, the learned Trial Judge ought not to have convicted the accused in this case. It is further submitted that the prosecutrix and the accused were both very young and were having a love affair. It is a matter of fact and undisputed that the prosecutrix had eloped with the accused from 22.05.1989 to 15.06.1989 and they both volunteered to appear before the police authorities and were thereafter taken in custody. While perusing the medical evidence, learned Advocate Mr. Gupta has submitted that the Doctor in his cross examination has accepted that the girl was major. The Birth Certificate as well as Page 3 of 13 R/CR.A/160/1997 JUDGMENT the ossification test also indicates that the age of the prosecutrix was a girl above 16 years, although the parents claim that the girl was of the age of 15 years. Therefore, the consent of the prosecutrix, if so was a relevant factor. He relied on the following authorities :-
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
e) Bhupatbhai Somabhai Sardiya v. State of Gujarat reported in (2012) 31 GHJ 140.
5. Per contra, learned Additional Public Prosecutor Ms. Monali Bhatt has taken this Page 4 of 13 R/CR.A/160/1997 JUDGMENT 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. It is 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 and later on did not marry her, this is a ground to uphold the judgment of the learned Trial Judge.
Further, the learned Additional Public Prosecutor Ms. Monali Bhatt has tried to distinguish the decision reported in the case of Bhartiben W/o. Sureshbhai Page 5 of 13 R/CR.A/160/1997 JUDGMENT 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.
6. Therefore, four aspects emerge that :-
(a) from 22.05.1989 to 15.06.1989 the prosecutrix had moved from place to place with the accused and she did not at all complain.
(b) They were no marks of injury on the person of the accused.
(c) The important aspect is that the prosecutrix had time to complain. If she had stated that the accused had raped her by showing a knife, she did not reveal this to anyone, though she had chances. It cannot be said that there was threat or inducement on part of the accused.
(d) The Birth Certificate reveals her age to be more than 17 years on date of incident.
7. Having heard learned Advocates Page 6 of 13 R/CR.A/160/1997 JUDGMENT appearing for the parties, I am of the opinion that the decision in the case 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. She having moved from place to place with the accused, it would not be out of place to state that she was a consenting party. It cannot be said that she was abducted or was seduced.
8. At this stage, it would be relevant to refer to the Provisions of Section 363, 366 and 376 of the Indian Penal Code, which reads as under :-
"363. Punishment for kidnapping :-
Whoever kidnaps any person from 1[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
366. Kidnapping, abducting or inducing Page 7 of 13 R/CR.A/160/1997 JUDGMENT 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].
XXX XXX XXX
376. Punishment for rape: -(1)
Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own Page 8 of 13 R/CR.A/160/1997 JUDGMENT wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(1) Whoever:
-(a) Being a police officer commits rape--
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or
(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's Page 9 of 13 R/CR.A/160/1997 JUDGMENT institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) Commits rape on a woman knowing her to be pregnant; or
(f) Commits rape when she is under twelve years of age; or
(g) Commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
9. At this stage, it is relevant to reproduce hereinbelow certain observations made by the respective Courts :-
In S. Varadarajan v. State of Madras Page 10 of 13 R/CR.A/160/1997 JUDGMENT (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."
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. 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."
Page 11 of 13R/CR.A/160/1997 JUDGMENT 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."
10. Having heard learned Advocates for the parties and perusing the records of the case, the Criminal Appeal is allowed. It cannot be said that the Court below was justified in convicting the accused as the prosecutrix was a consenting party, was not a minor and the accused did not take her forcibly. The evidence of the Doctor also proves that the accused did not force her or abduct the prosecutrix. This Court therefore, reverses the conviction of the accused
11. In view of the aforesaid discussion, this Court is of the view that the Court Page 12 of 13 R/CR.A/160/1997 JUDGMENT below has committed a serious error in law as well as on facts in convicting the accused for the alleged offences.
The findings recorded by the Trial Court are not only unjust but also improper and hence, the judgment and order dated 06.02.1997 passed by the Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.39/1990 is quashed and set aside.
The original accused is acquitted of the offences for which he stood charged. As the accused is on bail, the bail and bail bond stands discharged. Sureties, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to him by the respondent - State. Record and proceedings shall be sent back to the Trial Court forthwith.
Sd/-
(K.J. THAKER, J.) CAROLINE Page 13 of 13