Gujarat High Court
Popatbhai Rudabhai Gohil vs State Of ... on 15 April, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/374/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 374 of 2010
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 ? Yes
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 or any order
made thereunder ?
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POPATBHAI RUDABHAI GOHIL....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No. 1
MS MONALI H. BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 15/04/2015
ORAL JUDGMENT
1. On 10th April, 2015, this matter was Page 1 of 18 R/CR.A/374/2010 JUDGMENT listed on the 'For Orders' Board. Today, with the consent of the learned Advocates of the parties, the matter is taken up for hearing today. Learned Advocate Mr. Hardik Raval appears for the complainant and he is permitted to file his Vakalatnama during the course of the day.
2. Heard learned Advocate for the appellant Mr. Ashish M. Dagli, learned Advocate for the complainant and Additional Public Prosecutor for the respondent - State Ms. Monali H. Bhatt.
3. By way of this Appeal, the Appellant
- the original accused has felt aggrieved by the judgment and order of conviction dated 16.12.2009 of the learned Sessions Judge, Bhavnagar in Sessions Case No.180/2008 whereby the appellant herein was convicted and handed the following punishments :-
Under Section 363 of the Indian Penal Code Page 2 of 18 R/CR.A/374/2010 JUDGMENT Rigorous imprisonment for three years and fine of Rs.500/- and in default, imprisonment of 30 days.
Under Section 366 of the Indian Penal Code Rigorous imprisonment for three years and fine of Rs.500/- and in default, imprisonment of 30 days.
Under Section 376 of the Indian Penal Code Rigorous imprisonment for 10 years and fine of Rs.1,000/= and in default, imprisonment of 30 days.
(All the sentences were to run concurrently and the accused was to be given the benefit of set off)
4. The case in brief and the incident which occurred on 26.03.2008 are as under :-
On the said day at around 14.00 to 19.00 hours, it is alleged by the complainant Page 3 of 18 R/CR.A/374/2010 JUDGMENT that minor daughter of the complainant was induced by the present appellant with a promise of marrying her and jad sexual relations with her. The prosecutrix is alleged to have been kidnapped, and without her consent, the accused is alleged to have had sexual intercourse at Bileshwar.
On basis of the above, a complaint was filed and the investigation was carried out. And at the end of the trial, the learned Sessions Judge, Bhavnagar convicted the accused as detailed above.
5. The prosecution has relied on the evidences led by :-
Particulars Exhibit Complainant Danabhai Chothabhai 23 Bhil Dr. Sanjaybhai Omkarbhai Detha 25 Dr. Rajiniben Subhashbhai Gupta 27 Dr. Jagsharan Ramdev Shrivastava 28 Prosecutrix Sakhuben Danabhai 30 Witness Badhubhaiben Danabhai 35 Panch Witness Bhikhujati Ramjati 36 Goswami Page 4 of 18 R/CR.A/374/2010 JUDGMENT Witness Gohil Girishbhai Nanjibhai 38 Panch Witness Dilipbhai Babubhai 42 Saundarva Witness Mitaben Kantilal Gundigara 45 Investigating Officer Mukundbhai 52 Manilal Adharyu Complaint taking officer Ravjibhai 64 Lagrabhai Chavda
The prosecution relied on the following documentary evidences :-
Particulars Exhibit
Yadi for registering the complaint 12
Yadi for investigation 13
Panchnama of the scene of offence 14
Panchnama of the custody of the 15
accused and the clothes
Panchnama of the custody of the 16
clothes of the prosecutrix Panchnama regarding the custody of 17 the medical sample of the prosecutrix Panchnama regarding the custody of 18 the medical sample of the accused Certificate of the prosecutrix 19 given by Dr. Rajniben Gupta Letter regarding the taking of 20 samples Letter of the Doctor regarding the 21 taking of samples Letter regarding taking the 22 Page 5 of 18 R/CR.A/374/2010 JUDGMENT medical samples of the accused Complaint 24 Case papers pertaining to the 26 statement of Dr. S.O. Detha Case papers pertaining to the 29 statement of Dr. J.R. Shrivastava Panchnama u/s. 41(1) of the Code 37 of Criminal Procedure Application letter for admission 39 in the school Photocopy of the General Register 40 Entry No.12 Photocopy of the School Leaving 41 Certificate Form for admission in School 46 Photocopy of the General Register 47 Copy of the School Leaving 48 Certificate True Copy of the extract of the 50 Station Diary Yadi regarding the sending of 53 muddamal to FSL Receipt of the FSL regarding the 54 muddamal so received Letter of the Idea Mobile Co. 55 Letter of the FSL 56 Pathology report of the muddamal 57 by the FSL Forwarding letter of the 58 Serological Report Serological Report from the FSL 59 To prove the case of the accused, the Page 6 of 18 R/CR.A/374/2010 JUDGMENT accused relied on the oral evidences led by Dineshbhai Anoprambhai Vaishvan at Exhibit 67, Lakhabhai Chothabhai Bhil at Exhibit 70 and the documentary evidences such as Photocopy of the Birth and Death Register Entry No.42 at Exhibit 68, Birth Certificate at Chakuben Danabhai at Exhibit 69 and photocopy of the registration of birth made in the Nichkotda Grampanchayat at Exhibit 71.
6. In the above background of facts, learned Advocate Mr. Ashish M. Dagli appearing for the appellant has placed before this Court the following four affidavits :-
Affidavit of the complainant - Danabhai Chotabhai Bhil.
Affidavit of the complainant's daughter, i.e. the prosecutrix (Chakuben), Affidavit of the complainant's wife - Baguben Danabhai Gohil and Affidavit of the father of the appellant
- accused (Popatbhai Rudabhai Gohil).Page 7 of 18
R/CR.A/374/2010 JUDGMENT Relevant part of the Affidavit filed by the prosecutrix reads as follows :-
"1. I say and submit that, my father had lodged FIR with Bhavnagar A-Division Police Station, as I-C.R. No.110 of 2008. I further say and submit that initially FIR came to be lodged under Sections 366, 366 and 376 of I.P. Code.
2. It is submitted that, pursuant to the registration of the FIR investigation started and after conclusion of the investigation, charge sheet came to be filed and then after the case against my husband, tried as session case No.180 of 2008 and after conclusion of the trial Learned Court below pleased to pass order of conviction whereby my husband is directed to undergo R.I. for 3 years under section 363 of I.P. Code, and also ordered to undergo R.I. for 3 years under section 366 of I.P.Code and also convicted under section 376 of the I.P.Code and order to under R.I. for 10 years and the said order of conviction came to be challenged before this Honourable court by way of Appeal No.374 of 2010 and the same is pending for final hearing and during pendency of the appeal, my husband is granted bail by this Honourable court.Page 8 of 18
R/CR.A/374/2010 JUDGMENT I say and submit that, after a passage of time the dispute between us is amicably settled with the help of friends, relative and community people as myself and my husband (appellant) are residing as on today as husband and wife and also having two children out of his wedlock respectively Bhavesh - 3 and half years and Nita - aged about 1 and half years and now we all have cordial relation and therefore, I earnestly this Honourable court to take into consideration the said aspect and further be pleased to pass appropriate order in the matter and oblige."
Considering the above, it is submitted that the appellant and the prosecutrix were in love and the prosecutrix had left of her own free will. Today both of them have got married and have two children out of the wedlock. The deposition of the Doctor at Exhibit 26 also reveals that there was no external or internal injuries found on the body of the prosecutrix. It is therefore, submitted that this is a fit case which requires the interference of the Court and the judgment and order of the Page 9 of 18 R/CR.A/374/2010 JUDGMENT learned Sessions Judge, Bhavnagar requires to be upturned.
7. Per contra, learned Additional Public Prosecutor Ms. Monali H. Bhatt for the respondent - State has taken this Court through the evidence and has submitted that the judgment and order of the learned Judge is not such which calls for interference on the facts.
8. I would like to refer to the following decisions :-
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 Page 10 of 18 R/CR.A/374/2010 JUDGMENT Anr. reported in 2009 3 G.L.H. 664,
f) Mussauddin Ahmedabad v. State of Assam reported in (2009) 14 SCC 541,
e) Bhupatbhai Somabhai Sardiya v. State of Gujarat reported in (2012) 31 GHJ 140,
f) Vinod Kumar v. State of Kerala reported in (2014) 5 SCC 678,
g) K.P. Thimmappa Gowda v. State of Karnataka reported in AIR 2011 SCW 2281 and
h) Judgment dated 10.03.2015 of the Apex Court in the case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat in Criminal Appeal No.230/2013 and
i) Manoharlal v. State of M.P. reported in JT 2014 (13) SC 125.
9. It is necessary 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 Page 11 of 18 R/CR.A/374/2010 JUDGMENT 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 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].
376. Punishment for rape : -(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished Page 12 of 18 R/CR.A/374/2010 JUDGMENT 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 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 Page 13 of 18 R/CR.A/374/2010 JUDGMENT 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 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 Page 14 of 18 R/CR.A/374/2010 JUDGMENT 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."
10. I deem it relevant to reproduce hereinbelow certain observations made by the respective Courts :-
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 not 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."
11. Having heard learned Advocates appearing for the parties, I am of the opinion that the decision in the case of Bhartiben W/o. Sureshbhai Bhikhabhai Page 15 of 18 R/CR.A/374/2010 JUDGMENT Chauhan (supra), Alamelu (supra) and Vinod Kumar (supra), Satish Kumar Jayanti Lal Dabgar (supra) and Manoharlal (supra) would apply to the facts of this case.
12. In the facts of this case, by efflux of time, both - the prosecutrix and the appellant - accused have got married and the prosecutrix has also given birth to two children of the appellant. It is an admitted position as it emerges from the record that the appellant and the prosecutrix were fatally in love with each other. The age of the prosecutrix was thirteen and half years at the time of incident. The accused has been in jail for a period of two years and three months and after obtaining bail, the appellant - accused has got married with the prosecutrix.
13. The prosecutrix is present before this Court with her minor children. The appellant is also present in the Court. The prosecutrix confirms the name of Page 16 of 18 R/CR.A/374/2010 JUDGMENT accused in the Sessions Case. She confirms that she has married the accused and she states that she has two children out of the wedlock. The father of the prosecutrix, i.e. the original complainant is also present in the Court. This information and this enquiry is sufficient to believe the statement made by learned Advocate for the appellant Mr. Ashish M. Dagli and learned Advocate for the complainant Mr. Hardik Raval.
14. Considering the submissions advanced by the learned Advocates, the Affidavit filed by the prosecutrix and the complainant, the prosecutrix's presence in the Court with her father (i.e. the original complainant and also his wife) as also the facts of the case, I deem it just and proper to reduce the sentence of the appellant in the special circumstances of the case to the period already undergone by him. Fine, if any, is maintained and if the same is not paid yet, the fine shall be paid within Page 17 of 18 R/CR.A/374/2010 JUDGMENT a period of four (4) weeks from today.
Bail and bail bond, if any, stands cancelled. Record and proceedings, if any, be sent to the concerned Trial Court forthwith.
15. The judgment and order dated 16.12.2009 of the learned Sessions Judge, Bhavnagar in Sessions Case No.180/2008 is modified to the above extent.
16. Hence, the Criminal Appeal is allowed to the aforesaid extent.
Sd/-
(K.J. THAKER, J.) CAROLINE Page 18 of 18