Gujarat High Court
Thakore Tejaji Devaji And 4 Ors. vs State Of Gujarat on 20 March, 2006
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT C.K. Buch, J.
1. This appeal is preferred by the appellants-accused against the judgment and order of conviction and sentence dated 09.03.1999 passed by ld. Addl. Sessions Judge, Mehsana in Sessions Case No. 276/1997. Vide impugned judgment, the ld. Trial Judge has convicted the accused No. 1 Tejaji Devaji Thakor for the offences punishable under Sections 363, 366, 376 and 380 of Indian Penal Code (IPC for short) and accused No. 1 Tejaji was sentenced to undergo R/I for 10 years and to pay a fine of Rs.1000/ (Rs. One thousand only), I/d to further undergo S/I for 6 months for the offence punishable under Section 376 of IPC, accused No. 1 was further sentenced to undergo R/I for 7 years and to pay a fine of Rs.1000/ (Rs. One thousand only), I/d to further undergo S/I for 6 months each for the offences punishable under Sections 363 & 366 of IPC, accused No. 1 was further sentenced to undergo R/I for 3 years and to pay a fine of Rs. 500/ (Rs. Five hundred only), I/d to further undergo S/I for 3 months for the offence punishable under Section 380 of IPC. Accused No. 2 Jaibaben Devaji Thakor, vide impugned judgment, was convicted for the offences punishable under Section 376 r/w 114 of IPC and was sentenced to undergo R/I for 5 years and to pay a fine of Rs.1000/ (Rs. One thousand only), I/d to further undergo S/I for 3 months. Vide impugned judgment, accused No. 4 Thakor Vaghaji Vihaji, accused No. 6 Thakor Bachuji Pratapji and accused No. 5 Thakor Mangiben Vaghaji all have been convicted for the offences punishable under Sections 363, 366 read with Section 114 of IPC and each of them were sentenced to undergo R/I for 5 years and to pay a fine of Rs.500/ (Rs. Five hundred only), I/d to further undergo S/I for 3 months each. Vide impugned judgment, accused No. 4 Thakor Vaghaji Vihaji, accused No. 6 Thakor Bachuji Pratapji have been convicted for the offence punishable under Section 380 of IPC and accused No. 5 Thakor Mangiben Vaghaji has been convicted for the offences punishable under Section 380 read with Section 114 of IPC and each of them came to be sentenced to undergo R/I for 3 years and to pay a fine of Rs.500/ (Rs. Five hundred only), I/d to further undergo S/I for 3 months each. All the sentences were ordered to run concurrently. Vide impugned judgment, accused No. 3 Velaji Devaji Thakor came to be acquitted from the offences for which he was tried, by giving benefit of doubt to him. We have addressed in this judgment, the appellants as accused Nos. 1, 2, 4 to 6 respectively.
2. The impugned judgment and order of conviction and sentence passed by the ld. Trial Judge has been assailed on various grounds mentioned in the memo of appeal and ld. Counsel Mr. Utkarsh Jani appearing for ld. Counsel Mr. BG Jani for the appellants accused has taken us through all the grounds referred to in the memo and has submitted that the order under challenge is not sustainable because the conviction recorded is based on erroneous set of evidence and ld. Trial Judge has failed in applying the law in correct perspective. Like the original accused No. 3 Velaji Devaji Thakor- real brother of accused No. 1 Tejaji Devaji Thakor, all the accused persons could have been acquitted. It is alternatively submitted that at least accused Nos. 2 and 4 to 6 ought to have been acquitted from all the charges leveled against them and the ld. Trial Judge has erred in imposing very harsh punishment on accused No. 1 Tejaji Devaji Thakor. This submission is advanced before us as an alternative argument and it is submitted that the ld. Trial Judge ought to have imposed just a token punishment i.e. less than minimum prescribed by assigning reasons that are available on record.
3. On the other hand, the say of ld. APP Mr. KP Raval is that the findings recorded by ld. Trial Judge are absolutely legal and the same are based on correct appreciation of facts and the prosecution when has satisfactorily established one fact that the victim girl Kailash was minor i.e. below 16 years of age, none of the accused could have been acquitted. However, the State has not preferred acquittal appeal qua original accused No. 3 and so this Court at least should dismiss the appeal preferred by the present appellants accused persons.
4. Original accused No. 1 Tejaji Devaji Thakor at present is in prison and rest of the appellants accused are enjoying bail as substantive sentence imposed upon them is placed under suspension by the Court vide order dated 18.08.1999.
5. To appreciate rival contentions, we would like to state the facts in brief placed by the prosecution before the trial Court.
(i) Accused Nos. 1 to 6, according to the prosecution, are relatives. Accused No. 1 Tejaji Devaji Thakor is the main accused. Accused No. 2 Thakor Jaibaben is the mother of accused No. 1. Accused No. 3 Thakor Velaji Devaji who is acquitted by the ld. Trial Judge, is the real brother of accused No. 1. Accused No. 4 Thakor Vaghaji Vihaji is the brother-in-law of accused No. 1 i.e. husband of real sister Mangiben of accused No. 1 who is also accused No. 5. Accused No. 5 Thakor Mangiben is the real sister of accused No. 1. Accused No. 6 Thakor Bachuji Pratapji is the cousin of accused No. 1. Original Accused Nos. 1 to 3 are residents of village Raner, Ta: Kankrej, District: Banaskantha, accused Nos. 4 & 5 are residents of village Kamboi, Ta; Kankrej, District : Banaskantha and accused No. 6 Thakor Bachuji is the resident of village Kunvara, Ta:Sidhapur, District: Patan. The story placed by the prosecution as reflected in FIR (Exh.55) is that the complaint is filed by one Udesingh Shankarji Thakor on 02.06.1997. Complainant Udesingh has stated that he is the father of the victim girl Kailash and resides in a farm house in the revenue limits of town Sidhapur of District: Patan known as SKalolwala Farm¬. It is an agricultural land admeasuring about 20 Acres. He is residing in the farm along with his family. That he is carrying on agricultural operation himself and through labourers on yearly crop-share basis. That with effect from 10.07.1996, he employed accused No. 1 and accused No. 3, originally resident of village Raner, Ta: Kankrej, District: Banaskantha They were engaged on yearly crop share basis and they were to be paid 25% of the profit i.e. yield from agricultural produce. That complainant is having five daughters and three sons and victim Kailash was younger to the eldest daughter Harshaben. He has narrated his house as pakka house, but it emerges that it is a small bungalow constructed on the farm land and he was living happily with his wife Sajjanben and children. Accused No. 1 Tejaji and accused No. 3 Velaji were permitted to stay in the farm itself by erecting a kachcha house and they were residing with their mother Jaibaben and were working in the farm. It has also come on record that complainant had some suspicion that his daughter Kailash had developed some affairs with accused No. 1 Tejaji and so a watch was also kept on both of them. It has been further averred in the complaint that on 01.06.1997, at about 2.00 p.m., accused No. 1 Tejaji had been to the complainant and requested him to give Rs.50/- because he wanted to send his mother Jaibaben to their native village Raner and so he was paid an amount of Rs. 50/-. Thereafter, at about 4.00 p.m., accused No. 1 Tejaji telephoned at the residence of the complainant and that telephone call was received by his daughter Bhavna- younger sister of victim Kailash, who is aged about 14 years and accused No. 1 Tejaji informed on telephone that he is talking from Patan and inquired about Kailash. Thereafter, receiver of telephone was given to other servant namely Ranaji Motiji by Bhavna and accused No. 1 Tejaji also inquired from him about Kailash, but as Kailash was not there, accused No. 1 disconnected telephone. On that day, the complainant and his wife Sajjanben were to attend marriage ceremony at village Biliya. So, both of them had left the house with their servant Ranaji Motiji and children were left there at home with the eldest daughter Harshaben. It is the say of the complainant that thereafter, the house was locked from inside, but on their return, they found that entrance gate of the house was open and Kailash was not there in her cot. One room that was locked, was also found open. So, Harsha was awakened from sleep and she was asked about Kailash and they were informed that keys of the room were kept under the pillow when she (Bhavna) went to bed. Thereafter, they inquired about Kailash in the farm itself. They also found that one cupboard is lying open though the same was locked and one aluminium tin which was lying in that cupboard which was being used to keep gold and silver ornaments, was missing. Thereafter, they inquired at the place where accused No. 1 Tejaji was residing with his brother and mother, but nobody was there. They had also inquired in the nearby areas as well as at the place of near relatives, but they were not able to trace either Kailash or accused No. 1 Tejaji. So, on the next date i.e. on 02.06.1997 at about 11.30 p.m., complainant filed the complaint which came to be registered as I. CR No. 124/1997 with Sidhpur Police Station for the offences punishable under Sections 363, 366, 376, 380, 114 and 120-B of IPC.
(ii) According to the prosecution, the accused persons have committed above-said offence and they are responsible for the theft of silver and gold ornaments and cash amount of Rs. 10,225/- viz. the total property worth Rs. 61,200/-. Victim girl Kailash was traced and was arrested on 03.06.1997 in the evening and was sent for medical examination on 04.06.1997. Accused No. 2 Jaibaben also came to be arrested from village Raner and thereafter, the police was able to trace out other accused persons. Muddamal worth Rs. 49,922/- was also recovered during the investigation from accused persons as well as from prosecution witnesses. On completion of investigation, a chargesheet was filed for the aforesaid offences.
(iii) The charge is framed by the ld. Trial Judge at Exh.20 and to bring home the charge, the prosecution examined number of witnesses. The prosecution has mainly placed reliance on the evidence of victim girl Kailash and the depositions of complainant Udesingh- father of the victim girl- treating it to be the direct evidence against the accused. Ld. Trial Judge has also placed reliance on medical evidence, FSL report and panchanamas as to recovery of muddamal from accused persons, as corroborative piece of evidence. Victim girl Kailash, being an accused of the complaint so far as commission of the offence punishable under Section 380 of IPC is concerned, was also chargesheeted by the investigating agency, but she being minor on the date of commission of the offence, the final report was submitted to Juvenile Court constituted under Juvenile Justice Act. There is no reference as to the outcome of the case lodged against accused Kailash before the Juvenile Court. So, the evidence of prosecution shall have to be appreciated in the total background emerging from the evidence led by the prosecution because it is argued by ld. Counsel Mr. Jani that evidence has not been appreciated in correct and legal perspective.
6. Mr. Jani, ld. Counsel appearing for the appellants accused has taken us through entire evidence led by the prosecution. According to him, material witnesses examined to prove very important document like panchanama, recovery of muddamal etc. have not supported the case of the prosecution. Panchas who have supported the case of the prosecution, have not satisfactorily proved the contents of the panchanama drawn. So, entire panchanama tendered in evidence by those witnesses who have supported the case of the prosecution, can not be read as substantive piece of evidence and the contents proved by the panchanamas only ought to have been considered by the ld. Trial Judge. On the contrary, ld. Trial Judge has considered some evidence which is inadmissible in nature and that has resulted into serious prejudice to the accused persons. We would like to give a look at the evidence led by the prosecution.
(i) P.W. 1 Panch witness Bhikhaji Maganji (Exh.29), Resident of Sidhapur is examined who has proved the panchanama (exh. 30)of the house of the complainant Udesingh. Description of the house as well as wooden cupboard and aluminium tin found empty has been referred in this panchanama exh.30. It is argued by ld. Counsel Mr. Jani that the case of the prosecution is that aluminium tin wherein silver and gold ornaments were being kept by the complainant and his family, was not found and it was found stolen and on the other hand, aluminium tin was found lying empty in the house itself when panchanama exh.30 came to be drawn. This conflict in the case placed by the prosecution and evidence available in the nature of panchanama exh.30, is an important and material contradiction and which ought to have been appreciated by the ld. Trial Judge.
(ii) P.W. 2 Panch Lalji Raghubhai has been examined at Exh.31. He has been declared hostile who was examined to prove the recovery of silver and gold ornaments at the instance of Accused No. 2 Jaibaben from village Raner, Ta: Kankrej, District : Banaskantha. It is relevant to note that though as per the panchanama, ornaments were lying in a polythene bag when the same were recovered, but a suggestion was made by ld. PP conducting the trial that they were seized when they were in aluminium tin. The other witness Natvar Keshaji has also not supported the case of the prosecution. The ld. Trial Judge has placed reliance on the evidence of Investigating Officer who has recovered ornaments from Accused No. 2 Jaibaben, but it is relevant to note that when this panchanama came to be drawn, accused Kailash was also very well there with police and she was also there at village Raner. It is relevant to note that the panchanama exh. 32 tendered in evidence by panch witness Lalji Raghubhai has been drawn on 03.06.1997 between 18.30 and 19.30. It has come on record that before recovery of the ornaments under panchanama exh.32, the police had attempted to arrest accused No. 1 Tejaji when he was sitting with Kailash as well as his mother accused No. 2 Jaibaben in an agricultural field at village Raner. However, Tejaji was able to escape from the spot. Kailash had also attempted to escape from the spot but she could not succeed in leaving the spot and thereafter Jaibaben was taken by police after apprehending her and panchanama exh. 32 came to be drawn. No panchanama of formal arrest of Kailash appears to have been drawn at village Raner.
(iii) Evidence of P.W.4 Biharilal Krishnalal Oza, Exh. 34 proves that the victim Kailash had tendered clothes put on by her at Sidhpur Police Station and they were recovered under a panchanama (Exh. 35) prepared in the midnight of 03.06.1997 i.e. 04.06.1997 between 00.00 and 01.00 hours. Two panchas have signed this panchanama. However, this witness Biharilal Oza, aged about 77 years, has been examined by the prosecution to prove this panchanama. Ld. Counsel Mr. Jani has drawn our attention to odd hours for recovery of the clothes of victim girl Kailash mentioned in the panchanama exh. 35. There is controversy in evidence as to the presence of Kailash when her clothes were recovered and for that our attention is also drawn to the oral evidence of co-panch P.W. 5 Ramesh Prabhudas who has been examined at exh.36 by the prosecution.
(iv) Evidence led by panch witness P.W. 6 Amarsingh Shambhuji (Exh.37) links accused No. 5 Mangiben with the crime because by panchanama exh. 38, police was able to recover pair of silver anklets worth Rs.3500/- popularly known as Skadla. This recovery has been made from village Kamboi of District: Banaskantha and panchanama appears to have been drawn at Kamboi Police Out Post. This village Kamboi is undisputedly a village of Taluka: Kankrej, District: Banaskantha. There is evidence to show the distance between Sidhpur Police Station and Kamboi Out Post is about 50 kms. This panchanama has been drawn on 05.06.1997 at about 18.00 and 18.30 hours. Both the panchas of this panchanama are from Sidhpur and panch Amarsingh Shambhuji has accepted that he was taken to Kamboi Out Post by his employer Sheth Hashmukhlal Girdharlal i.e. first panch of panchanama exh. 38. According to ld. Counsel Mr. Jani for the appellants accused, though panch Amarsingh Shambhuji has supported the case of the prosecution as to the recovery of these two articles from accused No. 5 Mangiben, his evidence should not be accepted as trustworthy piece of evidence because investigating agency has missed in selecting the panchas from the area where the panchanama was drawn and the cross-examination of this witness clearly reveals that this panch might have said something under the influence of his employer Sheth Hashmukhlal. A suggestion has been made to this witness that he has no business to come down to Kamboi as he had no work and he has accepted that he is doing some labour work in town Sidhpur. It is relevant to observe that it is not the case of accused Mangiben that muddamal silver anklets i.e. Kadala are of her ownership.
(v) The evidence of panch Shambhaji Keshaji P.W. 7 (Exh. 39) is led to prove recovery of gold bangles worth Rs. 2500/- approximately from one Kankuba of village Kamboi and also to prove the fact of recovery of one pair of earings from accused No. 5 Mangiben. Panchanama drawn for recovery of gold earings is at exh.41 recorded under Section 27 of Indian Evidence Act. However, none of the panchas had supported the case of the prosecution and, therefore, they have been declared hostile. According to ld. Counsel Mr. Jani, there is no legal element of Section 27 of Evidence Act in the panchanama exh. 41 and both the panchnamas drawn at Kamboi Out Post, are of the nature of recovery of two gold ornaments. Kankuba has not been made accused, nor she has been examined by the prosecution. Panchanama exh. 41 drawn by police for recovery of gold earings at the instance of accused No. 5 Mangiben seems to have been created. These very articles could have been recovered immediately after recovery of silver ornaments recovered from the body of accused Mangiben on 06.06.1997. Panchanama exh.41 is drawn on 07.06.1997 and was completed at about 17.30. Evidence of P.W. 9 Vipulbhai Dineshchandra is recorded at Exh. 43. He is also a panch witness of the panchanama exh. 44. This panchanama is the arrest panchanama of accused No. 1 Tejaji Devaji and it is the case of the prosecution that Rs. 510/- was recovered from the hip-pocket of the pant of the accused Tejaji and one gold chain and one gold ring has also been recovered from him under this panchanama exh.44 at village Kamboi. According to ld. Counsel Mr. Jani, both the panchas of this very important document i.e. panchanama have not been selected objectively and they are residents of either Sidhpur or of District: Patan. First Panch Kanuji Jenaji Thakor has not been examined and undisputedly, panch Vipul Dineshchandra is a trader. An attempt has been made to show that complainant Udesingh is cultivating potato in his field and the panch Vipulbhai is dealing in the business of potato wafers and relations between the complainant and the panch has weighed in taking panch Vipul to village Kamboi so that panchanama as per the wish and desire of the complainant can be drawn. Panchanama exh.44 has been drawn on 08.06.1997 between 18.45 and 20.00 hours. The time of panchanama requires to be appreciated in the background of the facts stated by this witness Vipul that he had been to Kamboi to purchase goods and when he was just passing from Kamboi Out Post, he was called and was asked to become a panch in the panchanama exh. 44.
(vi) Deposition of P.W. 10 Gandalal Sendhidas is recorded at Exh.45. He is also a panch witness in whose presence allegedly gold ingot was recovered from the shop of one goldsmith Dharnendra Masukhlal of Patan town. This witness has also turned hostile and has not supported the case of the prosecution. He has denied the presence of accused No. 1 Tejaji Thakor when gold ingot was recovered from the shop of goldsmith Dharnendra. Co-panchas have also not supported the prosecution case. Total two gold ingots have been recovered under the panchanama exh.46. Goldsmith Dharnendra has also not supported the case of the prosecution.
(vii)Goldsmith Dharnendra Masukhlal is examined at Exh.56 as P.W. 14 and prosecution has tried to prove that two gold ingots weighing about 30 grams are the ingots of gold ornaments sold to him by accused No. 1 Tejaji and Accused No. 3 Velaji.
(viii) The evidence of the complainant P.W. 13 Udesingh Shankarsingh Thakor is recorded at Exh.54 and deposition of victim girl Kailash is recorded as P.W. 18 at Exh. 64. Evidence of P.W. 12 Dr. Rahim Memon is recorded at Exh.51. Evidence of these witnesses is recorded to prove the involvement of accused Nos. 3 to 6 in the crime committed. The prosecution has tried to examine Gagaji Pradhanji- P.W. 15 (Exh. 57) because it is the say of the prosecution that the vehicle in question was hired by accused persons and that they had travelled jointly in the motor vehicle, as the offence is committed either under conspiracy or abetment of each other. In the same way, P.W. 16 Chaturbhai Ambaram is also examined at Exh. 59 to prove the receipt of Rs. 330/- issued by one driver Khodaji Shivaji. This witness has supported the case of the prosecution, but he has simply said that he has signed the panchanama in the Court building at Sidhpur. However, the prosecution has not examined witness Khodaji Shivaji who has allegedly taken the accused persons in the motor vehicle and had received Rs.330/- as payment of transportation facilities provided by him to the accused persons.
(ix) To prove the age of the victim, the prosecution has examined school teacher Babubhai Cheldas P.W. 19 (Exh. 68). This witness has tendered two important documents namely zerox copy of the original school register of primary school where the victim girl Kailash was admitted as a student for the first time and original birth certificate of victim Kailash tendered by the guardian of Kailash to the school authorities to provide correct date of birth of victim Kailash. Of course, nobody from local-self government or birth certificate issuing authority has been examined to prove the birth certificate Exh.69 issued under the Birth & Death Registration Rules, but it is coming from a proper person and proper person has tendered the same in evidence. As per this document and as per deposition of P.W. 19 Babubhai Cheldas, date of birth of victim girl Kailash is 01.07.1981. He is conversant person and was competent to depose about the genuineness of the document tendered by him in evidence.
(x) Evidence of Investigating Officer P.W. 20 Jagatsingh Gulabsingh (Exh. 71) is the evidence which can be said to be a formal evidence. However, answers given by this witness, according to us, are found important in appreciating the case of the prosecution placed before the trial Court. Evidence of ASI Navinkumar is of very formal nature who has registered the offence on 02.06.1997. He is PSO who has handed over investigation to Mr. Parmar.
7. Evidence of P.W. 12 Rahimbhai Ibrahimbhai Memon (Exh. 51) is also a relevant piece of evidence with regard to the age of victim girl Kailash. As per the opinion expressed by Dr. Memon, radiologically, her age was found to be of about 17 years, but after going through x-rays taken of wrist joint, elbow joint and hip joint etc., he has opined that the age of the victim girl is between 15 to 17 years. According to him, otherwise the girl was found healthy and well-developed. The arguments of Ld. APP Mr. KP Raval before us in this regard are that though the doctor at one place in his deposition has said that age of the victim girl was found about 17 years, this Court should consider entire evidence led by the prosecution to prove the age of the victim. A solitary statement made by the doctor cannot brush aside the entire effect of the evidence led on this aspect, even if from the birth certificate of elder sister Harsha or younger sister Bhavana it is inferable that the age of Kailash was less than 15 years on the date of offence and this Court can record a finding accordingly and ld. Trial Judge has rightly recorded the finding that the victim Kailash at the relevant point of time, was below 16 years of age. He has fairly agreed that the evidence led by Kailash as to forcible intercourse is a weak piece of evidence and there is an element of consent if the conduct of Kailash is closely scrutinized, but this element of consent would not help the accused because the consent of a minor girl below 16 years of age is no consent in the eyes of law and intercourse with such a minor girl is a Srape¬ within the meaning of Section 375 of IPC which is made punishable under Section 376 of IPC.
8. There is some force in the arguments of ld. Counsel Mr. Jani that the evidence of Kailash should not have been accepted by ld. Trial judge as gospel truth. She is an accomplice and co-accused of the offences punishable under Section 380 of IPC. Her attempt to escape from the spot when police had reached the village Raner during investigation is indicative of one fact that she must have left the house of her parents voluntarily. To bring home the charge of the offence punishable under Section 363 of IPC, the prosecution has to prove that victim child was below 18 years of age if such a child is a female child. In the present case, the prosecution has satisfactorily proved that Kailash was a minor below 16 years of age and if such a minor aged about 15 Years & 11 Months leaves shelter of the parents, even voluntarily, then the Court is supposed to examine whether such a conduct or behaviour of the minor is either under any threat or any inducement. In the present case, it appears that Kailash had left the shelter of her parents in their absence under inducement of the accused and mainly accused No. 1 Tejaji Devaji Thakor. In response to the query raised by the Court, ld. APP Mr. Raval has fairly accepted that in absence of recovery of iron rod popularly known as SKaush¬ alleged used for breaking open the lock, makes the theory placed by the prosecution some-what weak. But it is clear that some trick was adopted to take out gold/silver ornaments lying in the cupboard because when panchanama was drawn of the house of complainant Udesingh, it was found that the screws were taken out from the wooden cupboard and wooden cupboard was found open. It appears that by using some force or technique, screws were taken out and theft was committed.
9. There is a material contradiction in the evidence led by prosecution qua the nature of entry of the accused persons inside the house of complainant Udesingh and, therefore, we found some force in the arguments of ld. Counsel Mr. Jani that the story put forward by the prosecution should not be accepted that more than 2 to 3 persons had entered the house of complainant Udesingh and minor Kailash was in sound sleep, had got up on getting signal from accused No. 1 Tejaji who had thrown some water on her when she was on her bed. When it is clear from the evidence of the complainant and especially the complaint that the house was locked from inside and children were sleeping inside the house and keys of lock were put below the pillow by the eldest sister Harshaben, then nobody could have entered the house and that too at a place from where one can throw some water on a person sleeping on a cot. It is in evidence that Harshaben as well as the victim girl Kailash were sleeping on the same bed. So, it emerges that on account of inducement given by accused No. 1 Tejaji, victim Kailash must be waiting for arrival of accused No. 1 Tejaji and some signal from outside and thereafter she must have opened the entrance door of the house. Tejaji and Kailash appear to have committed offence of theft jointly and, therefore, only, investigating agency decided to charge both of them for the offence punishable under Section 380 of IPC along with other accused persons. It is rightly argued that a blow of an iron rod on a wooden cupboard would be disturbing any one even if he is in a sound sleep. So, by adopting some skill, wooden cupboard must have been opened and Kailash ultimately left the house with stolen ornaments and some cash along with accused No. 1 Tejaji. It is the case of the prosecution that accused No. 3 Velaji Devaji was residing with accused No. 1 Tejaji and accused No. 2 Jaibaben in kachcha house erected in that very farm and when accused No. 3 Velaji Devaji has not been found guilty of the offence punishable under Section 380 of IPC, the case placed by the prosecution should not be accepted that accused Nos. 4 & 6 were parties in actual commission of theft because their presence was not noticed by the complainant Udesingh when he left the house for marriage in the night of 01.06.1997. Even in the FIR (Exh.55), the name of accused Bachuji is not referred to by the complainant. It appears that during the investigation at the instance of the prosecution witnesses, he has been made accused No. 6 and has been chargesheeted after investigation. The theft is not a continuing offence. It is completed when it is committed and when accused No. 1 Tejaji was aware that Kailash herself is going to join him in committing this offence, there was no need to take with him any one else for commission of the offence of theft. So, from the evidence led by the prosecution, it appears that theft was by accused No. 1 Tejaji and Kailash jointly and they were to leave for good and Kailash was leaving her parents for uncertain future. She might have been tempted by inducement given by accused No. 1 Tejaji for committing such a serious offence otherwise she could not have committed such a serious offence qua her own father and family members. It is true that the prosecution is able to prove one charge for the offence punishable under Section 380 of IPC and evidence led by the complainant as to identification of missing and/or stolen property recovered and the fact that police has successfully recovered substantial part of stolen property during the course of investigation and some of the ornaments have been recovered from the body of the person accused namely accused No. 1 Tejaji and accused No. 5 Mangiben, it is not possible for us to accept the arguments advanced that the prosecution has failed to prove charge for the offence punishable under Section 380 of IPC. Of course, there is an allegation against accused No. 6 Bachuji as to his participation in commission of offence of theft alleged by the prosecution.
21.03.2006 At one point of time, the prosecution has attempted to show that accused No. 6 Bachuji was a party in taking out the ornaments from the cupboard and has participated in breaking open of lock, but at one point of time, he was not even one of the suspects in the eyes of the complainant father Udesingh. During the course of investigation, he has been made accused on the strength of the statement recorded of the witness namely victim girl Kailash. So, according to us, the prosecution has successfully established the charge for the offences punishable under Section 380 of IPC against accused No. 1 Tejaji. However, we are not inclined to comment on the conduct of witness Kailash because it is likely to cause serious prejudice to the case of prosecution filed against Kailash, if the same is pending till date.
10. Like the offence punishable under Section 380 of IPC, the offence punishable under Section 363 of IPC is also not a continuing offence. When a minor is kidnapped and taken out from the custody of a lawful guardian, the offence of kidnapping is completed. The case placed by the prosecution that minor Kailash had left the house and left the shelter of her parents on 01.06.1997 at about 11.30 p.m. was the act because of inducement given to her by accused No. 1 Tejaji. If the evidence led by prosecution is considered as a whole, it emerges that she had developed some affection for accused No. 1 Tejaji and, therefore only, accused No. 1 Tejaji must have been tempted to go to the residence of the complainant in odd hours of 11.30 p.m. The parents of victim Kailash were to attend marriage ceremony of one relative in a nearby village, is the fact that accused No. 1 Tejaji might not be knowing. Only family members of complainant including victim Kailash were supposed to know this fact situation. So, victim Kailash appears to have conveyed to accused No. 1 Tejaji that her parents are not available and they are going to some other village and probably they may not return before the midnight and, therefore, accused No. 1 Tejaji had been to the residence of victim Kailash and took her with him. So, taking of Kailash from the bungalow of the complainant was an act of kidnapping of a minor and taking out such a minor from the lawful custody of the parents. In absence of cogent evidence, it would not be either legal or proper for us to say that the courage to go to the residence of victim Kailash must have been provided by some of the co-accused or mother Jaibaben -accused No. 2 because accused No. 2 Jaibaben had left the house in the afternoon. The prosecution has tried to show that the decision to go to her own village in District Banaskantha by accused No. 2 Jaibaben was because of some conspiracy hatched, is based on some conjecture. It is also possible that accused No. 1 Tejaji must be contemplating to take victim Kailash straightway to his native village and under that contemplation, he has sent his mother accused No. 2 Jaibaben in the afternoon on 01.06.1997 to his native village Raner. Leaving the house by Accused No. 3 Jaibaben in the after-noon hours on 01.06.1997, would not make her an abettor of the offence of kidnapping. If the scheme of Section 107 of IPC is scanned closely, this conduct can not be said to be either an overt act or omission resulting into abetment because at that relevant point of time when accused No. 2 Jaibaben left the house, kidnapping was under contemplation, probably, and that offence was not committed or completed in the house when offence punishable under Section 363 was committed by accused No. 1 Tejaji and at that time accused No. 2 Jaibaben was not in the house and the younger brother of accused No. 1 Tejaji namely accused No. 3 Velaji Devaji is acquitted of the said charges after trial and it is not the say of the prosecution nor evidence on record that at the time when Kailash left the shelter of her parents, accused No. 5 Mangiben was present or had actively participated in inducing minor girl. So, foreseeing the arguments of ld. APP Mr. Raval for the State that there is satisfactory evidence at least against accused No. 1 qua offence punishable under Section 363 of IPC and finding recorded by the ld. Trial Judge in holding the appellant accused No. 1 Tejaji guilty of the said offence can not be said to be erroneous. The ld. Trial Judge was supposed to appreciate simultaneously the nature of evidence led by the prosecution in proving the age of victim girl Kailash and as discussed in earlier paras, it is established that Kailash was aged less than 16 years i.e. 15 years & 11 months and obviously therefore below 18 years of age and she left the house under inducement of accused No. 1 Tejaji. So, we are not inclined to disturb the finding recorded against accused No. 1 Tejaji for the offence punishable under Section 363 of IPC. However, we are of the view that the ld. Trial Judge ought not to have convicted any of the other accused for the offences punishable under Section 363 R/w Section 114 of IPC. It is not necessary to reproduce Section 107 of IPC and scheme of Section 114 of IPC. In absence of any overt act in committing the offence punishable under Section 363 of IPC by any of the co-accused who are before us, it will not be possible for us to uphold the finding recorded by the ld. Trial Judge to link rest of the co-accused i.e. accused Nos. 2, 4 to 6 with the offence punishable under Section 363 R/w Section 114 of IPC. So, except appellant accused No. 1 Tejaji Devaji, according to us, the rest of the accused appellants have been erroneously held guilty of the offence punishable under Section 363 R/w 114 of IPC and their conviction requires to be quashed and set aside.
11. According to us, same logic would apply so far as offence punishable under section 366 of IPC is concerned. It is true that as per the say of victim Kailash, she was taken firstly to village Mudetha and thereafter to village Raner in the company of other accused persons, but the evidence led by the prosecution, according to us, is inadequate to link all the accused persons other than Accused No. 1 Tejaji with the crime punishable under Section 366 R/w Section 114 of IPC. Though it is said that minor Kailash was taken by all the accused persons in a matador to village Mudetha, there is no sufficient evidence to establish one fact that all the accused had travelled together in the same vehicle because the person who had carried the accused persons allegedly in the vehicle, has not been examined. Normally, it is an experience of the society that no formal receipts are being passed when the goods vehicle has been used to carry the passengers. However, for the reasons best known, the investigating agency i.e. I.O. was able to procure one document namely receipt for Rs.330/- for the use of a motor vehicle. At one place, the vehicle is referred to as 407. Nature of vehicle has not been described by any of the witnesses examined by the prosecution. However, it appears that the description of the vehicle tallies with a mini-truck manufactured by TATA Motors popularly known as TATA-407, but it would not be proper for us to bank upon any surmises. There is no evidence on record to show that receipt produced and exhibited in the present proceedings is issued by the original owner of the vehicle. The vehicle was never shown to victim Kailash during the course of trial. This fact, if appreciated in light of one statement made by victim Kailash in her deposition that she had participated in a marriage function at village Mudetha and marriage ceremony was in the family of the brother of accused No. 4 Vaghaji Vihaji- husband of accused No. 5 Mangiben. So, accompanying the victim to village Mudetha by accused No. 4 Vaghaji or accused No. 5 Mangiben can not be equated with abduction that has been made punishable under Section 366 of IPC. In the same way, there is no adequate evidence of involvement of accused No. 6 Bachuji for committing offence punishable under Section 366 of IPC. The ld. Trial Judge ought to have held accused No. 1 Tejaji guilty of the offence punishable under Section 366 of IPC and ought to have given benefit of doubt to other accused persons. Finding while convicting the accused should be based on sound logic and cogent evidence and in absence of adequate evidence, it would be unsafe and imprudent to draw any inference or surmise. It is true that the trial Court has jurisdiction to infer certain things provided there is evidence to draw such inference. So, according to us, the conviction of other accused persons other than accused No. 1 Tejaji for the offence punishable under Section 366 R/w Section 114 of IPC is bad and is not sustainable in the eyes of law.
12. Minor Kailash has stated on oath that the accused No. 1 Tejaji had established physical relations and so element of consent, in view of nature of evidence as to the age of victim girl, would not help the accused No. 1 Tejaji. The ld. Trial Judge has rightly appreciated the say of victim Kailash as to the commission of rape on her because her version is satisfactorily corroborated by the medical evidence. It is true that tear of hymen was old and in view of other aspects narrated by the doctor of the private part of the body of the person victim, it is possible even to argue that victim girl Kailash must have physical relations with accused No. 1 Tejaji even prior to the day on which accused No. 1 Tejaji had intercourse with her, even then the fact remains that act of accused No. 1 Tejaji is nothing but Srape punishable under Section 376 of IPC. The ld. Trial Judge, normally, should seek reasonable corroboration when Kailash is an accomplice and so the ld. Trial Judge was bound to ignore the element of consent because there was ample convincing evidence on record to show that minor Kailash had not completed 16 years of age at the time of incident. It is true that minor Kailash when was examined by the doctor radiologically, she was found of the age between 15 to 17 years, but considering the oral evidence of P.W. 19 Babubhai Cheldas (exh. 68) as well as complainant himself wherein he has stated about the age of his daughter, it was not possible for the Court to observe that the prosecution has failed in establishing the age of the victim girl is below 16 years or there is any element of doubt as to the exact age of victim Kailash. It is true that school leaving certificate when produced as solitary piece of evidence, has been viewed with slight doubt, but original birth certificate when is available in the present case and when has been tendered by a proper person, there is no need to lead any formal evidence to prove that document. The production of the document or exhibition of that document in evidence was not seriously assailed at all otherwise ld. PP conducting the trial could have called the Talati or any competent officer from local-self government with original register of registration of birth and death and the certificate exhibited by ld. Trial Judge is original and is neither zerox nor certified copy and witness P.W. 19 Babubhai Cheldas has convincingly stated that original birth certificate was tendered by the person who had come to the school when minor girl was admitted for the first time in primary school at village Khali. It is the practice of the school principals to have some proof as to the age of the student being admitted in the school. In absence of formal registration, the birth dates are being inserted in the school admission registers on inferences or on oral say of the parents or of a person who wishes that his child should be admitted in the school. In the present case, first admission of Kailash in the Primary School of village Khali, is not a matter of dispute. Original school admission register was brought before the Court and zerox copy has been admitted in evidence. The entry to that effect is not at Sr. No. 1 of the page nor at the bottom of the page and when school register entry is corroborated by the original birth register, there was no scope other than to infer that the date of birth of minor Kailash is 01.07.1981. So, on the date of incident i.e. on 01.06.1987, she was of the age of 15 Years & 11 Months and, therefore, minor within the meaning of Section 375 of IPC. So, any intercourse with such a minor girl is a Srape¬ made punishable under Section 376 of IPC. It is true that age of the accused, at relevant point of time, was between 19 & 21 years, but young age of the accused would not absolve him from the liability of a wrong committed by him. It is important to note that victim Kailash was nobody but was the daughter of employer of Accused No. 1 Tejaji and he was permitted to stay within the area of the farm house and, therefore, was having a scope to have interaction with family members of the complainant including girl Kailash. Therefore, accused No. 1 Tejaji ought not to have induced the minor girl Kailash to leave shelter of her parents and ought not to have established physical relations with her. The ld. Trial Judge has rightly convicted accused No. 1 Tejaji for the offence punishable under Section 376 of IPC. It is not the case of the prosecution that the accused has committed rape forcibly and/or under threats. So, the basic case of the prosecution remains consistent. The say of the prosecution as to commission of offence of rape gets corroboration through documents exh.74, 75 & 76. These documents are the reports from Forensic Science Laboratory (FSL for short). So, it is rightly argued by ld. APP Mr. Raval that this is not a case of uncorroborated testimony. In rape cases, the Court can place reliance even on uncorroborated testimony of a victim girl if a ring of truth sounds in the deposition of the victim girl and procedural lapses should be ignored in such cases especially when it is a case of a commission of rape on a minor. However in the present case, medical evidence as well as FSL reports amply corroborate the say of victim girl Kailash and, therefore, we accept the arguments advanced by ld. APP Mr. Raval that the ld. Trial Judge has not erred in linking accused No. 1 Tejaji with the crime punishable under Section 376 of IPC.
13. The conduct of accused No. 2 Jaibaben when rape was committed on victim girl Kailash, is also described by victim girl Kailash. It appears that accused No. 2 Jaibaben has provided shelter to accused No. 1 as well as girl Kailash. However, this part of evidence of girl Kailash is not found convincing nor trustworthy. It is now settled legal position that a witness of a criminal case may be believed qua one part of story narrated by such witness, but his evidence on other part of story may not be found acceptable. The Courts are supposed to separate the grains from chaff and we are of the view that girl Kailash had voluntarily accompanied accused No. 1 Tejaji, she had enjoyed marriage function as discussed earlier and thereafter she had gone with accused No. 1 Tejaji to village Raner. When police made an attempt to arrest accused No. 1 Tejaji, Kailash herself who was very well there, attempted to escape from the spot with accused No. 1 Tejaji, but she could not. In such a fact situation, if any member of the family of accused No. 1 Tejaji provides some facility accepting girl Kailash as wife of accused No. 1 Tejaji for all time to come, the members of the family can not be equated with abettors of the offence punishable under Section 376 of IPC. Narration of the conduct of accused No. 2 Jaibaben by girl Kailash appears to be a tutored version, otherwise she was very well available with police on 3rd June,1997 when she was intercepted for the first time at village Raner. So, the Court has reason to believe that the initial version of victim girl Kailash must have been recorded by the officer who had drawn the panchanama of the arrest of accused No. 2 Jaibaben and recovery of ornaments on 03.06.1997 at village Raner in presence of panchas. However, the formal statement of Kailash, for the reasons best known to the investigating agency, has been recorded thereafter and that too on her return to Sidhpur. It emerges from the evidence of I.O. that on 3rd June,1997, on return from village Raner to Sidhpur, the statement of girl Kailash was recorded and, therefore only, she was tempted to improve her version when she was examined in the Court on oath. We are not in a position to ignore one important contradiction proved by the prosecution whereby it has come on record that accused No. 2 Jaibaben had asked Kailash to share bed in the same room with accused No. 1 Tejaji. She had left the house on 01.06.1997 at 11.30 p.m. and she was intercepted on 03.06.1997 in the evening. On 02.06.1997, both of them had participated in marriage ceremony at village Mudetha. So, intervening nights were of 01.06.1997 and 02.06.1997. On 01.06.1997, as per the say of even prosecution, all of them had been to village Mudetha. So, in view of the role assigned to accused No. 2 Jaibaben by girl Kailash in the background of very material contradiction, it would be difficult for us to say that accused No. 2 Jaibaben had abetted the offence of rape in any manner. It appears to us that this is nothing but a simple case of eloping of a minor girl below 16 years of age on inducement given by accused No. 1 Tejaji. This inducement might have been given under anxiety, but when Kailash was found in the company of accused No. 1 Tejaji, the family members of accused No. 1 Tejaji committed a foolish mistake in sheltering them. Undisputedly, girl Kailash hails from comparatively a rich family and, therefore, the family of accused No. 1 Tejaji, hoping against hope, accepted Kailash as one of the family members conferring her status of the wife of accused No. 1 Tejaji. It would be risky to link all family members with the crime or any friend or relatives merely because they are party in giving some support to elope young couple. In number of cases, family members may not be aware about the age of eloped girl especially when girl is physically well-developed. In the present case, it is on record that Kailash when examined medically, was found to be well-developed healthy girl. So, according to us, conviction of the accused persons other than accused No. 1 Tejaji recorded by ld. Trial Judge for the offence punishable under Section 376 R/w Section 114 of IPC, is erroneous and ld. Trial Judge should have acquitted them by giving benefit of doubt. Reasons assigned for convicting them for the offences punishable under Section 376 R/w Section 114 of IPC are neither logical nor acceptable in the eyes of law and in the background of facts emerging on record.
14. When we are asked to appreciate conviction of accused No. 5 Mangiben in relation to the offences punishable under Section 380 R/w Section 114 of IPC closely, our finding is that she should not have been linked with the crime punishable under Section 380 R/w Section 114 of IPC as discussed earlier. In the same way, nature of evidence collected to link accused No. 2 Jaibaben for the offence punishable under Section 380 R/w Section 114 of IPC is also inadequate because panchas have not supported the case of prosecution as observed earlier. Investigating Officer Mr. Parmar has not proved the contents of panchanama drawn at relevant point of time at village Raner. So, accused No. 2 Jaibaben also could not have been linked with the crime for the offence punishable under Section 380 of IPC. However, there is some evidence which can be said to be convincing as to the recovery of ornaments from accused No. 5 Mangiben which is available on record and so whether she can be convicted for the offence punishable under Section 411 of IPC or not is the question before us. She has not been charged specifically for that offence, but as per settled legal position, in absence of formal charge also, the offence punishable under Section 411 being lesser and minor offence than the offence punishable under Section 380 of IPC, accused No. 5 Mangiben can be held guilty of the offence punishable under Section 411 of IPC because in presence of panchas, two pairs of silver anklets popularly known as SKadala were recovered by the investigating agency and she has not claimed that ornaments as of her ownership even in her statement recorded under Section 313 of CrPC. This recovery has been made at village Kamboi under a panchanama, but the panchas to the said panchanama are not the residents of village Kamboi or of nearby village. So, the selection of panchas is not found objective. However, the fact remains that the same have been recovered by the I.O. from the body of the person of accused No. 5 Mangiben. So far as recovery of gold earings is concerned, evidence led by the prosecution can be rejected as inadequate evidence. It appears the silver ornaments must have been given to accused No. 5 Mangiben by Kailash herself so that she can put on and enjoy the same in a marriage function that was arranged at her brother-in-law's place. But when stolen article/ ornament is found from a person, that person is supposed to give his explanation to the satisfaction of the Court and should establish that stolen article found was beyond the knowledge of such person that the same is a stolen article and that possession of such article is of innocent nature and there is no element of any mens-rea. Such explanation could have been given by accused No. 5 Mangiben. We have carefully gone through her statement recorded under Section 313 of CrPC and when it is not her defence that the said silver anklets (Kadala) were put on by her at the instance of Kailash, one of the family members of the owner of the property, she could not have been given benefit of doubt. But when Kailash herself is an accused of the offence punishable under Section 380 of IPC, wearing of such ornaments by accused No. 5 Mangiben by itself is a guilty conduct and, therefore, we are inclined to observe that the prosecution has satisfactorily established the crime against accused No. 5 Mangiben for the offence punishable under Section 411 of IPC. It is not possible for us to say that any other accused persons have committed the offence of the nature that has been committed by accused No. 5 Mangiben i.e. offence punishable under Section 411 of IPC. Non-examination of Kankuba also affects adversely the case placed by the prosecution that accused persons who were allegedly found in possession of the stolen property, are guilty of the offence punishable under Section 411 of IPC.
15. So, we accept some part of alternative arguments advanced by ld. Counsel Mr. Jani that the prosecution has not established the charges for the offences punishable under Section 363, 366 and 376 R/w Section 114 of IPC against any of the accused except accused No. 1 Tejaji Devaji. In the same way, the prosecution has also failed in establishing the charge for the offence punishable under Section 380 R/w Section 114 of IPC against other accused persons. However, we are not inclined to disturb the finding recorded by ld. Trial Judge against accused No. 1 Tejaji Devaji holding him guilty for the offences punishable under Sections 363, 366, 376 and 380 of IPC. Accused No. 5 Mangiben is held guilty for the offence punishable under Section 411 of IPC.
16. So far as adequacy of punishment is concerned, according to us, punishment imposed by ld. Trial Judge for the offences proved against accused No. 1 Tejaji is harsh. When a technical rape has been established by the prosecution, there was no reason for the Court to impose the punishment which is more than minimum punishment prescribed. Age of accused No. 1 Tejaji, according to us, at the relevant point of time i.e. on the date of commission of offence, is relevant when adequacy of punishment is required to be considered. A boy of about 19 to 20 years of age, if is attracted towards a young girl residing in the vicinity of his residence and if commits a criminal wrong, then the Court should look to such an accused with reformative eyes and should not become so harsh. The minimum punishment prescribed for the offence punishable under Section 376 of IPC is R/I for 7 years. Seven years are very important years in the life of a young boy and, therefore, imposition of punishment of R/I for 7 years by itself shall have deterrent effect. So, we are inclined to reduce the substantive sentence of R/I for 10 years imposed by ld. Trial Court for the offence punishable under Section 376 of IPC to the extent to R/I for 7 years. Similarly, amount of fine is also reduced to Rs.200/-, I/d to undergo S/I for 15 days for the offence punishable under Section 376 of IPC instead of imposition of amount of fine of Rs.1000/- as ordered, so far as accused No. 1 Tejaji is concerned. Substantive sentence imposed on accused No. 1 Tejaji for other two offences i.e. offences punishable under Section 363 and 366 of IPC is also altered and modified to the extent that accused No. 1 shall under go R/I for 5 Years and to pay a fine of Rs. 200/- I/d to undergo further S/I for 15 days for the offences punishable under Sections 363 & 366 of IPC each. Similarly, the order of sentence sentencing the appellant accused No. 1 Tejaji Devaji Thakor to undergo R/I for 3 years and to pay a fine of Rs.500/ (Rs. Five hundred only), I/d to further undergo S/I for 3 months for the offence punishable under Section 380 of IPC is also hereby modified and altered to the extent that the appellant accused No. 1 Tejaji Devaji Thakor shall undergo R/I for 3 years and to pay a fine of Rs.200/- ( Rs. Two hundred only), I/d to further undergo S/I for 15 days for the offence punishable under Section 380 of IPC. Substantive sentences are also ordered to run concurrently. The appellant accused No. 1 Tejaji shall be required to pay reduced amount of fine as imposed and in default of payment of fine, obviously, he shall be required to undergo S/I for 15 days for each offence.
17. For the reasons recorded in the oral judgment, the appeal is partly allowed. The impugned judgment convicting the accused No. 1 Tejaji Devaji Thakor for the offences punishable under Sections 363, 366, 376 and 380 of Indian Penal Code (IPC for short) is hereby confirmed. However, the order of sentence sentencing the appellant accused No. 1 Tejaji to undergo R/I for 10 years and to pay a fine of Rs.1000/- (Rs. One thousand only), I/d to further undergo S/I for 6 months for the offence punishable under Section 376 of IPC is hereby altered and modified to the extent that appellant Accused No. 1 Tejaji Devaji Thakor is ordered to undergo R/I for 7 Years and to pay a fine of Rs.200/- (Rs. Two Hundred only), I/d to further undergo S/I for 15 days so far as the offence punishable under Section 376 of IPC is concerned. Similarly, order of sentence passed against accused No. 1 Tejaji Thakor to undergo R/I for 7 years and to pay a fine of Rs.1000/- (Rs. One thousand only), I/d to further undergo S/I for 6 months each for the offences punishable under Sections 363 & 366 of IPC each, is hereby modified and altered to the extent that the appellant Accused No. 1 Tejaji Devaji Thakor shall under go R/I for 5 Years and to pay a fine of Rs.200/- (Rs. Two hundred only), I/d to further undergo S/I for 15 days each for the offences punishable under Sections 363 & 366 of IPC each. Similarly, the order of sentence sentencing the appellant accused No. 1 Tejaji Devaji Thakor to undergo R/I for 3 years and to pay a fine of Rs.500/- (Rs. Five hundred only), I/d to further undergo S/I for 3 months for the offence punishable under Section 380 of IPC is also hereby modified and altered to the extent that the appellant accused No. 1 Tejaji Devaji Thakor shall undergo R/I for 3 years and to pay a fine of Rs.200/- ( Rs. Two hundred only), I/d to further undergo S/I for 15 days for the offence punishable under Section 380 of IPC. Substantive sentences are ordered to run concurrently. Excess fine, if paid, shall be refunded to the appellant Accused No. 1 Tejaji Thakor and if appellant Accused No. 1 has undergone R/I for 7 Years as reduced by this Court, he shall be set at liberty forthwith if not required to be detained in any other case.
So far as Accused No. 2 Jaibaben Devaji Thakor is concerned, the impugned judgment convicting the appellant Accused No. 2 Jaibaben for the offences punishable under Section 376, 114 of IPC and sentencing her to undergo R/I for 5 years and to pay a fine of Rs.1000/- (Rs. One thousand only), I/d to further undergo S/I for 3 months is hereby quashed and set aside and she is acquitted from the aforesaid charges by giving benefit of doubt to her.
Similarly, the impugned judgment convicting accused No. 4 Thakor Vaghaji Vihaji, accused No. 6 Thakor Bachuji Pratapji and accused No. 5 Thakor Mangiben Vaghaji for the offences punishable under Section 363, 366 read with Section 114 of IPC and sentencing each of them to undergo R/I for 5 years and to pay a fine of Rs. 500/- (Rs. Five hundred only), I/d to further undergo S/I for 3 months each, is hereby quashed and set aside and they are acquitted of the aforesaid offences by giving benefit of doubt to them. Fine if paid, be refunded. These appellants accused are on bail, hence, their respective bail bonds stand discharged.
Similarly, the impugned judgment convicting accused No. 4 Thakor Vaghaji Vihaji, accused No. 6 Thakor Bachuji Pratapji for the offence punishable under Section 380 of IPC and convicting accused No. 5 Thakor Mangiben Vaghaji for the offences punishable under Section 380 read with Section 114 of IPC and sentencing each of them to undergo R/I for 3 years and to pay a fine of Rs.500/- (Rs. Five hundred only), I/d to further undergo S/I for 3 months each, is hereby quashed and set aside and these accused persons are hereby acquitted of the aforesaid offences by giving benefit of doubt to them. Fine if paid, be refunded. These accused are on bail, their respective bail bonds stand discharged.
However, appellant accused No. 5 Mangiben is hereby convicted for the offence punishable under Section 411 of IPC. But considering the totality emerging from record, we feel that the period for which appellant accused No. 5 Mangiben has remained in prison initially as an under-trial prisoner and thereafter after passing of the order of conviction, is considered as adequate punishment and, therefore, she is ordered to undergo imprisonment already undergone by her as aforesaid. However, she is ordered to pay a fine of Rs. 200/- (Rs. Two hundred only) for the offence punishable under Section 411 of the IPC, I/d to undergo S/I for 15 days. Appellant accused No. 5 Mangiben is directed to pay the amount of fine within 15 days from the date of receipt of the writ by the trial Court failing which, she shall be sent to prison to serve the sentence of S/I for 15 days on account of default in paying the fine for the offence punishable under Section 411 of IPC.
Appeal stands allowed accordingly.