Gujarat High Court
Hareshbhai vs State on 13 May, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/3127/2010 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3127 of 2010
=========================================================
HARESHBHAI
GATORBHAI CHAUHAN - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
AJ YAGNIK for
Applicant(s) : 1,
MR DC SEJPAL, APP for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 13/05/2010
ORAL
ORDER
1. This is an application preferred under Section 439 of the Code of Criminal Procedure by the applicant who came to be arrested in connection with CR No. I-104 of 2009 registered at Botad Police Station for the offence punishable under Section 376 of the IPC.
2. Mr AJ Yagnik, learned advocate for the applicant submitted that the applicant is behind the bars since last 9 months. The present case arises out of teenage love between a boy aged about 18 years and a girl aged about 15 years. The teenage love was going on since long time and even love letters written by the girl to the applicant boy are on the record of the case. Considering the aforesaid facts and circumstances, the prayer as set out in the application to enlarge the applicant on bail be granted. Learned advocate for the applicant placed reliance on the statement of victim, Lilaben, Hiteshbhai, Jyotsnaben, Ghanshyambhai Khodabhai, Rukhmaniben wife of Ghanshyambhai Khodabhai, Somabhai Khodabhai, Kanubhai Aapabhai and the medical certificate issued by Referral Hospital, Bhavnagar dated 5.6.2009 and the certificate issued by the Medical Officer, Sir T.G.Hospital, Bhavnagar in support of the submission that the medical certificates do not indicate that the rape was committed on the victim. Considering the aforesaid aspects, the prayer as set out in the application deserves to be granted and the applicant be released on bail as prayed for in the application.
3. Mr DC Sejpal, learned APP for the State, while opposing the bail application, submitted that considering the FIR which is given by the victim, wherein she has in clear terms stated that the applicant had committed rape on her by using force and against her will and desire. She has stated her age as 11 years when the complaint was given on 4.6.2009. Learned APP also placed reliance on the statement given by the victim dated 4.6.2009, where she reiterates as to in what manner the rape was committed by the applicant by using force and against her will. Even on perusal of the Medical Certificates on which heavy reliance is placed, the learned APP submitted that the history given by the victim clearly indicates that the rape was committed by the applicant by using force. Even the name of the applicant is given in the history given to the Doctor by the victim. The learned APP has placed reliance on the birth certificate of the victim which clearly mentions the date of birth as 17.8.1995. Thus, considering the age of the victim either as per the school leaving certificate or even as per her complaint, she was below 16 years of age when the alleged offence is committed in the present case. Learned APP placed reliance on Section 375 of the IPC and submitted that it clearly mentions that a man is said to commit rape who has sexual intercourse with a woman with or without her consent, when she is under sixteen years of age. Thus, on bare perusal of sixth exception of Section 375 of the IPC, it becomes clear that the applicant committed rape on the young girl who was below 16 years of age. Considering the aforesaid facts and circumstances of the case, the application does not call for interference and it deserves to be rejected out of hand.
4. I have heard Mr AJ Yagnik, learned advocate for the applicant and Mr DC Sejpal, learned APP for the State at length and in great detail. The averments made in the application as well as the role attributed to the applicant as reflected in the FIR dated 4.6.2009 given by the victim have been taken into consideration by me. The statement of witnesses as referred to and relied upon by the learned advocate for the applicant as well as by the learned APP is also carefully perused by me. On perusal of the statement of witnesses, more particularly the statement of victim dated 4.6.2009, it makes it abundantly clear that the applicant committed rape by using force and against her desire. Thus, the version given in the complaint is supported by the victim in her statement dated 4.6.2009. The age of the victim is mentioned in the FIR as 11 years when the incident took place, while the school leaving certificate which is produced mentions the date of birth of the victim as 17.8.1995. Even if we consider the birth date certificate produced in the present case and the birth date given therein as 17.8.1995, she was below 16 years of age when the incident in question took place on 4.6.2009.
5. The learned advocate for the applicant has placed heavy reliance on the certificate issued by Referral Hospital, Bhavnagar dated 5.6.2009 in support of the submission that on perusal of the Medical Certificate, no injury marks were found on the person of the victim. However, on perusal of the history given in the Medical Certificate, it becomes clear that while giving history to the Doctor, the victim had narrated that the applicant by using force on her committed the rape. Likewise, heavy reliance is also placed on the certificate given by the Medical officer, Sir T.G.Hospital, Bhavnagar in support of the submission that on examination of the victim, it has been mentioned by the Doctor that possibility of intercourse could not be ruled out . It is also contended by the learned advocate for the applicant that the case of the applicant and the victim is of a teenage love affair and the victim was equally responsible because she had written several letters to the applicant and therefore, considering the aforesaid aspect and the Medical Certificate issued by the Doctor, necessary corroboration is not forthcoming in the matter indicating the involvement of the applicant in the commission of offence for rape under Section 375 of the IPC. However, as discussed by me hereinabove, the complaint was given by the victim, wherein she has in clear and categorical terms indicated as to how and in what manner the rape was committed by the applicant by using force even in her statement dated 4.6.2009, she has reiterated about the rape committed by the applicant by using force. The certificate issued by Doctor on which reliance is placed makes it clear that the history which was given by the victim to the Doctor clearly mentions the name of the applicant who committed rape by using force. On perusal of the school leaving certificate, it becomes clear that she was admittedly below 16 years of age when the incident in question took place. I have also perused the provisions contained in Section 375, more particularly sixth exception of Section 375 makes it clear that if the victim is below 16 years of age, then, it is immaterial that there was any consent or the act was done without her consent and the explanation provided therein also further makes it clear that penetration is sufficient to commit sexual intercourse necessary to the offence of rape. However, in view of the FIR given by the victim and her own statement as well as the Medical Certificate, wherein the history given by her prima facie makes it clear that the rape was committed by the applicant on the victim who was below 16 years of age by using force and against her will. In view of the aforesaid facts and circumstances, the applicant in my view has not made out a case for interference in the application preferred under Section 439 of the Code of Criminal Procedure.
6. For the foregoing reasons, as the application is devoid of merit, it is hereby rejected. Rule is discharged.
[H.B.ANTANI, J.] mrpandya Top