Gujarat High Court
Vasant @ Jagdish @ Jago Sawabhai Solanki vs State Of ... on 24 February, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1432/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1432 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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VASANT @ JAGDISH @ JAGO SAWABHAI SOLANKI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR SANJAY PRAJAPATI, ADVOCATE for the Appellant(s) No. 1
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 24/02/2015
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellant-original accused, under Section 374(2) of the Cr. P.C., against the Judgment and order dated 30.08.2011 passed by the learned Additional Sessions Judge, Court No.14, Ahmedabad, in Sessions Case No.66 of Page 1 of 12 R/CR.A/1432/2011 JUDGMENT 2011, whereby the appellant-accused was convicted for the offence punishable under Section 363 of the Indian Penal Code and sentenced to undergo 2 years rigorous imprisonment with fine of Rs.500/-, in default of payment of fine, further simple imprisonment of 10 days, for the offence punishable under Section 366 of the IPC and sentenced to undergo 5 years rigorous imprisonment with fine of Rs.700/-, in default of payment of fine, further simple imprisonment of 15 days and for the offence punishable under Section 376 of the IPC and sentenced to undergo 7 years rigorous imprisonment with fine of Rs.750/-, in default of payment of fine, further simple imprisonment of 15 days.
[2] According to the prosecution case, the complainant was residing at Abhinav Flat, Krushnagar Cross Road, Saijpur Bogha, Naroda, Ahmedabad. On 21.09.2009, when the complainant went to buy Multani Mati at Krushna Nagar Cross Road, appellant-accused who used to stand in front of her house and selling Cassette told her to marry him and he would take care of her. The complainant advised the appellant-accused to talk with grandfather. But the appellant-accused told her that he would take later on and forcefully took the complainant to Sonini Chawl in Rickshaw, where the complainant obdurate to return home, the appellant-accused told that they would be returned after having Darshan at Meenawada. As the complainant was having faith in God 'Dashama' and trust upon his words, they went to Page 2 of 12 R/CR.A/1432/2011 JUDGMENT Meenawada and stayed in guest house. Thereafter, they went to Talod at maternal uncle of the appellant-accused, where they stayed for four days and during that period, the appellant-accused made physical relation against her will. On 25.09.2009, father of the appellant-accused came to Talod and told that as the grandfather of the complainant informed Naroda Police Station, they dropped the complainant at Naroda. As a result of which, the complaint filed by the complainant before the Naroda Police Station against the appellant-accused for the offence punishable under Sections-363, 366 and 376 of the Indian Penal Code. Then investigation was carried out. Statements of the witnesses were recorded and panchnama of place of incident was drawn. Appellant- accused and victim were sent to hospital for medical check-up. Statement of the Principal of school was recorded and vali form and general register of the school was produced by the Principal of the school. Then, recovered muddamal sent to the FSL with ravangi note. On receipt of the report of the FSL, charge-sheet was filed against the appellant-accused for the alleged offences. As the said case was exclusively triable by the Court of Sessions, learned Metropolitan Magistrate Court No.18, Ahmedabad, committed the case to learned Additional Sessions Judge, Court No.14, Ahmedabad, which was thereafter, numbered as Sessions Case No.66 of 2011.
[3] On the basis of above allegations, charge was framed against the appellant-accused vide Exh.4 and Page 3 of 12 R/CR.A/1432/2011 JUDGMENT read-over and explained to the appellant-accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. Then plea at Exh.5 was recorded, wherein, appellant-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined following oral evidences :-
Sr. Exh. Name of Witness No. 1 7 Babubhai Kanjibhai Rana 2 9 Doctor Bhargav Becharbhai Zhaveri 3 11 Doctor Bhavnaben Chankyarkumar Patel 4 12 Panch Rameshbhai Chhanabhai Rathod 5 15 Panch Devisinh Ramsinh Zala 6 16 Panch Rameshbhai Maganbhai Rathod 7 17/1 Panch Kiritbhai Jayswalbhai Vaniya 8 23 Manjulaben Babubhai Rana 9 24 Dhirubhai Babubhai Rana 10 26 Victim 11 28 Kantaben Mohanbhai Vaghela 12 31 Shankarbhai Nanjibhai Ninama [5] In support of the prosecution case, the prosecution has produced several documentary evidences like medical certificate of victim at Exh. 10 medical certificate of accused at Exh.12, panchnama of house of maternal uncle Page 4 of 12 R/CR.A/1432/2011 JUDGMENT of accused at Exh.14, panchnama of clothes of accused at Exh.17, receipts of panch at Exh.18 to 21, complaint at Exh.27, copy of vali form at Exh.29, copy of entry No.3883 at Exh.30, ravangi note of FSL at Exh.32, receipt of FSL at Exh.33, forwarding letter of FSL at Exh.34, analysis of FLS at Exh.35 and serological report at Exh.36.
[6] Thereafter, after filing closing pursis by the prosecution at Exh.37, further statement of appellant- accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the appellant-accused that the victim joined with him with her consent and physical relation was made by him with her consent. He further admitted that he was innocent and he has not committed any offence and was wrongly charge-sheeted. The appellant-accused has denied the case of the prosecution and submitted that a false case is filed against him.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Additional Sessions Judge, Court No.14, Ahmedabad vide impugned judgment and order dated 30.08.2011 held the appellant-accused guilty to the charges levelled against him under Sections 363, 366 and 376 of the Indian Penal Code, and convicted and sentenced the appellant- accused, as stated above.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence of learned Additional Sessions Judge, Court No.14, Page 5 of 12 R/CR.A/1432/2011 JUDGMENT Ahmedabad, the present appellant-accused has preferred this appeal.
[9] Heard Mr.Sanjay Prajapati, learned advocate for the appellant-accused, and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent-State.
[10] Mr.Sanjay Prajapati, learned advocate for the appellant-accused read the charge and contended that this is a clear case of consent and original birth date of the victim was not disclosed before the school just to show younger age of the prosecutrix and thereby, concocted the age certificate. He further read the evidence of the complainant-victim and contended that as per the understanding between the appellant and victim, victim joined with the appellant-accused and moved with him at different places. Further, the victim even did not care to inform anyone that she was kidnapped by the appellant- accused and against her will and volition, she was taken away by the appellant-accused from one place to another place. He then contended that the evidence of victim is not supported by medical evidence. He drew attention of the Court to PW-1 Babubhai Kanjibhai Rana and contended that as this witness did not support the case of the prosecution, he declared as hostile witness and even through examination made by learned prosecutor, the prosecution could not produce any iota of the evidence. He further drew attention of the Court to evidence of PW- 2-Doctor Bhargav Bahecharbhai Zhaveri and contended that before doctor also, the prosecutrix disclosed that with Page 6 of 12 R/CR.A/1432/2011 JUDGMENT consent she stayed with the appellant-accused and made physical relation with him. He further contended that present appellant-accused was examined by Doctor Bhavnaben C. Patel, who was examined at Exh.11 and even before this doctor also, it was disclosed by the appellant-accused that with consent of the prosecutrix, physical relation was made by him. He read the evidence of PW-4 panch Rameshbhai Chhanabhai Rathod at Exh.12 in whose presence the panchnama was drawn, but the same is not supported by this witness. Mr.Prajapati, further drew attention of the Court to evidence of PW-5 panch Devisinh Ramsinh Zala, PW-6 panch Rameshbhai Maganbhai Rathod and PW-7 panch Kiritbhai Jayswalbhai Vania and contended that these are the material witnesses, but they declared as hostile and nothing was produced on record through oral version of these witnesses. He further read the evidence of PW-8 Manjulaben Babubhai Rana, wherein, she deposed that the victim came after 5 days after filing of the complaint and disclosed that the appellant-accused took her to different places and made physical relation with her, but only on the basis of version of victim herself, the appellant- accused cannot be convicted. Mr. Prajapati, all the evidences which are read over by him are concocted and go against the case of the prosecution. He then contended that Vali form and entry regarding the birth of the victim which are produced at Exh.29 and 30 by Kantaben Mohanbhai Vaghela-Principal of school, but the same are Page 7 of 12 R/CR.A/1432/2011 JUDGMENT not proved as per the rules of Bombay Primary Education Rules and thereby age of the victim create doubt. He submitted that learned trial Judge has not properly considered the defence version of the appellant-accused and wrongly convicted him even though consent is proved beyond reasonable doubt. Looking to the age of the appellant-accused, some leniency is required to be shown against him. Lastly, he prayed to quash and set aside the judgment and order of conviction.
[11] Per contra, Mr.Hardik Soni, learned APP, Mr. Soni, drew attention to evidence of Principal of school PW-11 Kantaben Mohanbhai Vaghela and contended that it is admitted by her that the victim was given admission as per vali from in 1st standard and original copy of the vali from and register were produced on record at Exh.29 and
30. He further contended that at the time of offence the prosecutrix was below 16 years and as per the evidence of victim herself and other witnesses, it is prima-facie established that the victim was forcefully taken away by the appellant-accused at different places and made physical relation. He further contended that it is admitted by the appellant-accused and victim before the doctor in case history that the victim was taken away by the appellant-accused at different places and made physical relation with the victim. He argued that from the case history of accused and victim, it is established beyond reasonable doubt that at the time of offence, the prosecutrix was below 16 years. He argued that looking to Page 8 of 12 R/CR.A/1432/2011 JUDGMENT the age of the victim which was below 16 years, consent of the victim is no defence available to the accused. Lastly, he prayed to dismiss the appeal.
[12] I have perused the documentary as well as oral evidence produced on record. No doubt, Mr.Prajapati, learned counsel for the applicant-accused argued that this is a case of consent and therefore, the present appellant- accused cannot be convicted. I have minutely perused the evidence produced on record through PW-11 at Exh.29 and 30. As per the provision of Bombay Primary Education Rules, 1949, at the time of admission of pupil in school, vali form duly fill up by the guardian and the document which is produced in support of the age, the entry should be entered in general register of the school. Rules-128 and 130 of the Bombay Primary Education Rules, which reads as under:-
"128. Admissions of pupils:
(1) No approved school shall admit-
(a) a child who has not completed the 5 th year of age on the date of admission.
(b) children suffering from any infectious or contagious disease:
(c) any child after the lapse of two months from the beginning of the school year except with the special permission of the Administrative Officer.
(2) A pupil shall pay the fees, if any, for the month in which he is admitted irrespective of the date of admission."
"130. Age certificate:- Every child seeking admission for the first time into an approved school shall produce a certificate of age signed by its parent.Page 9 of 12
R/CR.A/1432/2011 JUDGMENT In the case of illiterate parents, the certificates shall bear their thumb impression attested by a literate person other than a teacher of the school to which the child seeks permission. The date of birth given in this certificate shall be entered in the school (General) Register. No subsequent change or alteration therein shall be made except with the sanction of the School Board Chairman. In the case of transfer of pupils from one place to another, the age given in the leaving certificate shall be entered tin the register of the new school. "
[12.1] It is held by the Apex Court in the case of Harpalsingh v/s. State of H.P. that when any entry is made by public servant during his official duty, the same can be considered as purely admissible, as per provision of Section-35 of the Indian Evidence Act. In present case, PW-11-Principal is examined by the prosecution is public servant and she disclosed the age of the victim through oral as well as documentary evidence. I have gone through provision of Section-363, 366 and 376 of the IPC. As per the provision of law, when the age of the prosecutrix is established as below 16 years, question regarding consent cannot arise. I have perused provision of Section-361 of the Indian Penal Code, which provides that if minor girl is under 18 years, and if any person without consent of such minor, kidnap her from lawful guardianship, then main ingredients of Section-361 of IPC is satisfied and proved under Section-363 of IPC. No doubt, Mr.Prajapati, learned counsel for the appellant-accused argued that there was a consent of the victim and on her own will, she joined with the appellant-accused and moved Page 10 of 12 R/CR.A/1432/2011 JUDGMENT with him at different places, but looking to the age of the victim, though there was consent, the same cannot be considered in favour of the appellant -accused. In the present case, through document produced on record at Exh.29 and 30, age of the victim is proved and established without any shadow of doubt that she was below 16 years. Evidence of the victim speaks that appellant-accused made physical relation and in light of provision of law, it should be considered that appellant-accused committed rape on minor girl below 16 years. From the above observation and circumstantial documents produced on record, learned trial Judge rightly considered that victim was taken away by the appellant-accused and committed an offence under Section-376 of IPC. In view of the above observation, learned trial Judge has rightly considered the ingredients of the alleged offence. I have not found that learned trial Judge has committed any grave error to convict the present appellant-accused. In the result, I am in full agreement with the judgment and order of conviction of the learned Trial Court.
[13] In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 30.08.2011 passed by the learned Additional Sessions Judge, Court No.14, Ahmedabad, in Sessions Case No.66 of 2011, is hereby confirmed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.)
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R/CR.A/1432/2011 JUDGMENT
siddharth
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