Gujarat High Court
Shri Dinesh Alias Bodo Sureshbhai ... vs State Of ... on 25 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/2/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 2 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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SHRI DINESH ALIAS BODO SURESHBHAI BHALIYA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR EE SAIYED, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 25/03/2015
ORAL JUDGMENT
1. This is an appeal by the original accused No.1-appellant, challenging the judgment and order of the learned Additional Sessions Judge, Vadodara (for short, 'the Trial Court'), Dated : 18.12.2014, whereby, the trial Court, though, acquitted the original accused No.2, convicted and sentenced the original accused No.1 Page 1 of 14 R/CR.A/2/2015 JUDGMENT as under;
(1) For the offence punishable under
Section 363 of the IPC, to undergo
rigorous imprisonment for three years and to pay fine of Rs.2,500/- and in default to undergo further simple imprisonment for six months;
(2) For the offence punishable under
Section 366 of the IPC, to undergo
rigorous imprisonment for three years and to pay fine of Rs.2500/- and in default to undergo further simple imprisonment for six months; and (3) For the offence punishable under Section 376 of the IPC, to undergo rigorous imprisonment for seven years and to pay fine of Rs.2500/- and in default to undergo further simple imprisonment for three months.
2. The brief facts of the case of the prosecution, as set out before the trial Court, are that on 29.09.2010, while the complainant was at his workplace at about 07:30 p.m., he received a phone call from his wife, informing him that the prosecutrix had not returned home. Hence, Page 2 of 14 R/CR.A/2/2015 JUDGMENT inquires were made with friends and relatives, but, same was of no avail. Then, one Shaileshbhai, who owns a garage and is a resident of village Jarod, told the complainant that he had seen the daughter of the complainant riding a bike along with original accused Nos. 1 and 2. It was the case of the prosecution that the accused No.1, then, took the prosecutrix to different places, viz. Ahmedabad, Ambaji, Bhavnagar, and had sexual intercourse with her. Hence, the complainant lodged the complaint. On registration of the complaint, police carried out investigation into the alleged offence and on finding sufficient evidence filed a charge-sheet against the accused Nos. 1 and 2. at the time of trial, since, the accused Nos. 1 and 2 did not plead guilty, the trial was conducted.
3. At the time of trial, in order to establish the guilt of the accused, the prosecution examined the following witnesses;
PROSECUTION NAME OF THE WITNESS EXHIBIT
WITNESS NO.
NUMBER
1 Rajubhai Kanubhai Bhaliya 11
2 Manubhai Kanjibhai Bhaliya 13
3 Arjunbhai Shankarbhai 18
Bhaliya
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4 Kiritbhai Jaswantsinh 24
Bhaliya
5 Rameshbhai Mafatbhai Bhaliya 31
6 Daxaben Rameshbhai Bhaliya 41
7 Shaileshbhai @ Narsibhai 48
Rameshbhai Bhaliya
8 The prosecutrix 52
9 Dr. Jitendra Bhagubhai Patel 54
10 Dr. Purvi Kanubhai Patel 64
11 Vishnubhai Ishwarbhai Patel 65
12 Pushpaben Prahlad Ingle 68
13 Mahipatsinh Mahendrasinh 71
Puwar
4. Over and above the oral evidences, the prosecution also produced the following documentary evidences in support of its case;
SR. PARTICULARS OF THE DOCUMENTS EXHIBIT
NO. NO.
1 Panchnama of place of offence 12
2 Panchnama of physical condition 14
and seizure of clothes of the
prosecutrix
3 Panchnama of physical condition 16
and seizure of clothes of accused
No.1
4 Complaint 33
5 Photocopy of School L.C. Of the 34
prosecutrix
6 Birth Certificate of the 53
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Prosecutrix
7 Medical certificate of the 56
prosecutrix
8 Medical examination report of the 57
prosecutrix
9 Medical certificate of the 59
accused No.1
10 Medical examination report of the 60
prosecutrix
5. At the end of the trial, the further
statement of the accused Nos. 1 and 2 under
Section 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the impugned judgment and order, as referred to herein above. Hence, the present appeal.
6. Mr. Saiyed, learned Advocate for the original accused No.1-present appellant, submitted that the trial Court committed a grave error in passing the impugned judgment and order of conviction, inasmuch as it failed to appreciate that the prosecutrix was not a minor. It is, further, stated that from the evidence of the prosecutrix, herself, it clearly transpires that there was no force or coercion on the part of the accused No.1 and the prosecutrix voluntarily accompanied the accused No.1. He, further, stated that the trial Court ought to have appreciated the fact that the panch Page 5 of 14 R/CR.A/2/2015 JUDGMENT witnesses did not support the case of the prosecution. Therefore, it is prayed that the present appeal be allowed.
7. On the other hand, learned APP supported the order of the trial Court and submitted that the trial Court passed the order of conviction, after perusing the entire material on record, and hence, no interference is called for at the hands of this Court.
8. In order to prove its case beyound reasonable doubt, the prosecution examined the prosecutrix as PW-8. PW-8, in her deposition (Exhibit-52), stated that on the date of the alleged incident she went to school, but, since, there was still some time left in beginning the school, she sat near a shop and at that time she received a phone call from accused No.1, who asked her to meet him at Jarod Bust Stop. When, the prosecutrix reached there, accused No.1 told her that he loves her and wants to marry her, and then, the prosecutrix was made to ride the motorcycle of accused No.2 and from there they went to Lilora Bus Stop and then to Vadodara and to Ahmedabad. From Ahmedabad, the accused No.1 had booked two sleeper seats for Ambaji, wherein, the accused No.1 is stated to have sexual intercourse with the prosecutrix against her will. The Page 6 of 14 R/CR.A/2/2015 JUDGMENT prosecutrix, further, stated that after visiting the temple at Ambaji, since, the accused No.1 had no money they walked towards a village on foot and en-route to same, the accused No.1 again had physical intercourse with her without her consent. Then, the prosecutrix and accused No.1 came to Data and boarded a bus bound to Ahmedabad. After reaching Ahmedabad, the accused and prosecutrix went to Mahisagar Bridge and from there, they went to a nearby village on foot, from where the accused called her brother-in-law, who came and gave Rs.400/- to the accused No.1 and told him to take the prosecutrix to Bhavnagar. On reaching Bhavnagar, the uncle of accused No.1 came to receive them and took them to his house, where, at night, the accused No.1 again had sexual intercourse with her against her will. Then, on receiving phone call from uncle of accused No.1, accused No.1 and the prosecutrix came to Vaghodia Police Station. The prosecutrix stated that at police station, police made inquires from her and accused No.1 separately and at that time she had narrated the entire episode before police, and then, she was sent for medical examination. The prosecutrix stated that before Medical Officer also she had given the history of having sexual intercourse with her by accused No.1 under the pretext of marrying her. The prosecutrix, then, identified accused No.1 before Page 7 of 14 R/CR.A/2/2015 JUDGMENT the Court as well as the clothes put on by her at the time of alleged offence and which were seized by the police. In her cross-examination, the prosecutrix-PW-8 stated that it is true that I stated in my statement before the police dated 04.10.2010 that while we were sleeping in the bus, accused No.1 had sexual intercourse with me and that on reaching Ambaji, while we were going to a village on foot, since, we had no money, we had sexual intercourse in the jungle. She, further, stated that in my statement before police I did not state that we had sexual intercourse near a pile of woods lying near Bhavnagar Bus Stop and that accused No.1 had said sexual intercourse with her consent. She, further, stated that while she was sitting at the shop and accused No.1 called her over phone and asked her to come to Bus Stop, she did not ask him as to why should I come to bus stop, when I do not know you. The prosecutrix, then, stated that when she reached bus stop, a number of persons were present there and when she asked accused No.1 as to why have you called me, accused No.1 replied her that he loves her and wanted to marry her, and hence, she rode the bike with him. The prosecutrix stated that on reaching Lilora, they waited for the bus for about two- three hours, but, during this period she did not make any attempt to get rid of accused No.1. The Page 8 of 14 R/CR.A/2/2015 JUDGMENT prosecutrix stated that on arrival of the bus, she boarded the same along with accused No.1 without any protest, though, driver, conductor and co-passengers were present there. On reaching Vadodara, the prosecutrix stated that she found a number of persons there, but, she did not raise any alarm that accused No.1 was taking her against her will and she along with accused No.1 boarded the bus bound to Ahmedabad and she did not make any attempt to get herself freed from accused No.1. On reaching Ahmedabad also, though, there were a number of persons present, the prosecutrix stated that she did not raise any alarm. The prosecutrix stated that from Ahmedabad Bus Stop, they went to office of a private bus operator and while the accused went to book the tickets for Ambaji inside the office, she was alone outside, but, she did not make any attempt to escape. On arrival of their bus, the prosecutrix and accused No.1 boarded the same and took their seats on slipper berth. The prosecutrix admitted that, at that time, there were about 12 to 15 passengers in the bus and that beneath their sleeping berth, there were seats for other passengers. The prosecutrix admitted that while the accused removed his own as well as her clothes, she did not make any protest and while accused No.1 was having sexual intercourse with her, at that time also, she did Page 9 of 14 R/CR.A/2/2015 JUDGMENT not make any protest that he was having sexual intercourse with her against her will. The prosecutrix stated that on reaching Ambaji also, she did not make any attempt to get rid of the accused, though, Home Guards were present nearby. She stated that, thereafter, since, accused had no money they went to Data on foot. She admitted that during the interregnum period they left from Data and went to Bhavnagar, Vasad and appeared before Vaghodiya Police Station she had made no complaint to anybody that the accused had kidnapped her and had sexual intercourse with her against her will. The prosecutrix, then, stated that in her statement before the police dated 24.10.2010, she stated that accused No.1 was residing in her village and he was married before about four months of the alleged incident and when the wife of accused No.1 came to know about their affair, she went to her parental home.
9. Now, if, the evidence of prosecutrix-PW- 8 is closely examined, than, it jumps to the eyes that there was no force or coercion exerted on the prosecutrix by accused No.1 to accompany him and rather it clearly transpires that the prosecutrix voluntarily accompanied him. The reason for arriving at the aforesaid conclusion is that to begin with the prosecutrix left Jarod with accused No.1 in borad day light and from Page 10 of 14 R/CR.A/2/2015 JUDGMENT there they went to place to place and during all this time, they used public transportation and they happened to pass through a number of public places, which were crowded with a number of people, and thus, there were a number of opportunities with the prosecutrix to protest or to raise alarm, had she been not a consenting party to the same. Same is the case with the allegations with regard to sexual intercourse by accused No.1 with the prosecutrix against her will. As per the evidence of the prosecutrix, accused No.1 had sexual intercourse with her for the first time in a bus, wherein, there were co- passengers as well as the driver and cleaner etc. were present, but, she did not raise any alarm or protested the act of the accused. Then, the second intercourse is alleged to have by accused No.1 with the prosecutrix in a jungle while going to to Data from Ambaji. In that case also, the prosecutrix neither at the time of accused No.1 having sexual intercourse with her nor subsequently appears to have made any complaint to anybody. As far as the sexual intercourse between the accused No.1 and the prosecutrix at Bhavnagar is concerned, she stated that they had said sexual intercourse with each other's consent. Further, the prosecutrix in her evidence admitted that she had an affair with accused No.1 and that, since, wife of accused No.1 came to Page 11 of 14 R/CR.A/2/2015 JUDGMENT know about the same, she went to her parental home. From the evidence of the prosecutrix, it also transpires that accused No.1 used to come and stay at her village. Here, it may be noted that accused No.1 and the prosecutrix belongs to same caste, and hence, it cannot be said that being of the same caste and village, the prosecutrix was not aware that accused No.1 was already married. The cross-examination of the prosecutrix, destroys the very case of the prosecution that she was threatened of dire consequences by accused No.1 to make her accompany him. On the contrary, all throughout the prosecutrix appears to be a consenting party. Now, as per the evidence of PW-5, the father of the prosecutrix, at the time of alleged incident, the prosecutrix was aged about 16 years and 1 month. As per the School Leaving Certificate (Exhibit-34) and Birth Certificate (Exhibit-53) of the prosecutrix, her date of birth is 01.09.1994. From the record, it appears that the prosecutrix appeared for her SSC Exam in the month of March, 2010. Hence, it clearly transpires that on the date of the alleged incident, the prosecutrix was more than sixteen years of age. Thus, being a girl of more than sixteen years and having studied upto Standard-
10, the prosecutrix was expected to have
reasonable understanding of understanding the
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consequences of her actions. At the same time
accused No.1 was also a young boy aged about 21 years.
10. In view of the above, if, the evidence of the Medical Officer, i.e. PW-9 (Exhibit-54), who had carried out physical examination of the prosecutrix as well as accused No.1 is seen, then, before this witness gave the history of elopement with accused No.1 and having sexual intercourse with him. As per the evidence of PW- 9, on internal as well as external examination of the prosecutrix, he did not find any injury or any signs of force or coercion on her body including her private part. On examining accused No.1 also, PW-9 find no injury marks. The evidence of PW-10, i.e. the female doctor, who examined the prosecutrix are also to the above effect and this witness also stated that she did not find any signs of force or coercion on the body as well as private part of the prosecutrix. Thus, the evidence of PW-9 and PW-10, destroys the case of the prosecutrix that accused had sexual intercourse with her against her will by force and coercion.
11. So far as the evidence of PW Nos. 1, 2, 3, 4 are concerned they did not support the case of the prosecution, whereas, PW Nos. 11, 12 and Page 13 of 14 R/CR.A/2/2015 JUDGMENT 13 were the police witnesses.
12. In above view of the matter, when it has come on record that the prosecutrix, who was 16 years of age, joined accused No.1 out of her free will during the broad day light from a public place, and thereafter, moved with him from place to place and when there is no injury marks found either on the body of the prosecutrix or accused No.1, in the opinion of this Court, the conviction of accused No.1 cannot be sustained and the trial Court committed a grave error in passing the impugned judgment and order and same requires to be quashed and set aside.
13. In the result, this appeal is ALLOWED. The judgment and order of the trial Court, Dated : 18.12.2014, convicting the original accused No.1-appellant, herein, for the offence under Sections 363, 366 and 376 of the IPC, is QUASHED and set aside and the accused is ACQUITTED. The amount of fine, if any paid by him, be refunded to him. The accused is reported to be in jail, and hence, if, he is not required in connection with any other case, he be released, FORTHWITH. R&P be sent back to the concerned Court, forthwith.
(K.J.THAKER, J) UMESH Page 14 of 14