Gujarat High Court
Nepalsing @ Nepalray @ Prem S/O ... vs State Of ... on 26 March, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/138/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 138 of 2015
With
CRIMINAL MISC.APPLICATION NO. 5752 of 2015
In
CRIMINAL APPEAL NO. 138 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?
================================================================
NEPALSING @ NEPALRAY @ PREM S/O SHIVPRASAD MADHURAY
RAJBHAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR HARDIK A DAVE, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 26/03/2015
ORAL JUDGMENT
Page 1 of 18
R/CR.A/138/2015 JUDGMENT
1. Yesterday (i.e. 25th MARCH, 2015), the main Appeal, i.e. Criminal Appeal No.138/2015 was not on the Board and by mistake, this Court directed the order in Criminal Miscellaneous Application No.5752/2015 and therefore, the Office was directed to place the Appeal on Board today.
2. This Appeal is of the year 2015. By consent of the learned Advocates for the parties, this Appeal is taken up for final hearing today.
3. By way of this Appeal, the appellant
- original accused has felt aggrieved by the judgment and order of conviction dated 19.09.2014 of the learned 4th Additional Sessions Judge, Surat in Sessions Case No.230/2012 whereby the appellant accused was handed the following punishment :-
Under Section 363 of the Indian Penal Code Rigorous imprisonment for 5 years and Page 2 of 18 R/CR.A/138/2015 JUDGMENT fine of Rs.2,000/- and in default, rigorous imprisonment for one month.
Under Section 366 of the Indian Penal Code Rigorous imprisonment for 10 years and a fine of Rs.5,000/= and in default further rigorous imprisonment for two months.
Both the sentences were ordered to run concurrently.
4. The brief facts of the case and the incident which occurred on 07.10.2011 are as under :-
The complainant in this case is the prosecutrix. On the said day, the daughter of the complainant went missing from her home. The prosecutrix was searched at all the nearby places. It is further stated that enquiries were made at the place of work where the accused used to work and it revealed that the accused had not turned up for Page 3 of 18 R/CR.A/138/2015 JUDGMENT work from 07.10.2011. The accused is alleged to have called up the complainant after 2-3 days that the prosecutrix was with him, he desired to take her to his village and also desired to marry her. When it was enquired as to from where the accused was talking, nothing was said about the same. Inspite of frantic search efforts, both the accused and the prosecutrix could not be found out. Later it was revealed that both had reached the accused's home state - Assam.
On basis of the complaint lodged, investigation was carried out. The School Leaving Certificate of the prosecutrix, Panchnama was carried out of the clothes of the prosecutrix and the accused and also of the scene of offence. The MLC papers of the accused and prosecutrix were taken, the muddamal seized were sent for analysis to the F.S.L. at Surat and the serology report was obtained. The statement of witnesses under Section 161 of the Code Page 4 of 18 R/CR.A/138/2015 JUDGMENT of Criminal Procedure, 1973 was taken. After investigation, the chargesheet was led before the learned 7th Additional Chief Judicial Magistrate, Surat under Sections 363, 366 and 376 of the Indian Penal Code on 11.01.2012, which was registered as Criminal Case No.1523/2012.
The learned Chief Judicial Magistrate committed the case to the Sessions Court on 27.04.2012 which was numbered as Sessions Case No.230/2012. After the same was received, summons was issued qua the accused. The accused pleaded not guilty and claimed to be tried. After collecting the documentary and oral evidences, the Closing Pursis under Section 313 of the Code of Criminal Procedure was led, wherein the accused claimed that he was not guilty and he has been falsely implicated in the offences. It was stated by the accused that he did not give any false promises to the prosecutrix, he had not abducted her and this was a false case registered Page 5 of 18 R/CR.A/138/2015 JUDGMENT against him and at the end of the trial, the learned Additional Sessions Judge, Surat convicted the accused for the above offences.
5. The prosecution relied on the following oral evidences led by :-
Particulars Exhibit
PW1 Milindbhai Sureshbhai 10
PW2 Chitraben Dilipbhai Lokhande 16
(mother of the prosecutrix) PW3 Devaram Digambar Lokhande 19 PW4 Dr. Vishalbhai Harsukhlal 22 Rojivadiya PW5 Sunil Chandrakantbhai Jariwala 26 PW6 Narayanbhai Ramratanrai 27 PW7 Dipakbhai Ananda Mahire 28 PW8 Sanjaybhai Yuvrajbhai Sandani 29 PW9 Rakeshbhai Devrambhai Lokhande 30 PW10 Vimal Chandra Medi 33 PW11 Vijaya Devat 39 PW12 Gajendrasingh Bhagwatsinh 45 Solanki PW13 Anita Sudhakar Patil 47 PW14 Vadilal Karsanbhai Vadher 48 (Investigating Officer) The prosecution also relied on the following documentary evidences :-
Page 6 of 18R/CR.A/138/2015 JUDGMENT Particulars Exhibit Panchnama of arrest of the accused 11 Advertisement / Notice of Missing 17 person Complaint 18 Affidavit (regarding the summons 21 which could not served on the prosecutrix) Yadi (regarding medical 23 investigation of the accused and to issue a Certificate in this respect) Medical Certificate of the accused 24 MLC Case Papers of the accused 25 Medical Certificate of the accused 34 Copy of the medical certificate of 35 the prosecutrix Photocopy of the General Register 40 of the School (of the prosecutrix) Leaving Certificate of the 41 prosecutrix FSL Report 42 Photocopy of the Certificate 43 regarding the leaving of School by the prosecutrix True Copy of the Station Diary 46 No.44 of the Limbayat Police Station List 49 Ordersheet copy 50 Copy of the Advertisement given in 51 Gulzaribag Railway Police Station Page 7 of 18 R/CR.A/138/2015 JUDGMENT
6. Learned Advocate Mr. Hardik A. Dave for the appellant has placed on record an Affidavit filed by the prosecutrix which reads as under :-
"I, Pooja D/o Dilipbhai Lokhande w/o Nepalray Rajbhar, aged 18 years, Occupation - House wife, resident of Kolrazar, Shantinagar Ward No.2, Patthar Ghat, Near Ambaji Temple, Kokrazar, Assam, do hereby state on oath that :-
1. I, being an original victim girl / prosecutrix of the Sessions Case No.230 of 2012 decided by the Learned Additional Sessions Court Surat, in connection with I CR no. 180 of 2011 registered before the Limabayat Police Station Surat on dated 12/10/2011 for the alleged offences punishable under section 363 and 366 of IPC, I am competent to file this present affidavit.
2. I, the deponent herein, am having love and affection with Nepalray S/o Shivprashad rajbhar, the applicant of the present application / appeal, from the beginning in deep love with each other.
3. I further states on oath that on the date of alleged incident Page 8 of 18 R/CR.A/138/2015 JUDGMENT as per first information report, dated 07/10/2011, I on my own will and wish went along with Nepali @ Nepalray and went to the Assam and had performed marriage with the present applicant on dated 12/10/2011 and living happily with my in-laws and husband i.e. present applicant herein.
4. I further say and submitted that from the said wedlock we, I and the present applicant, having one baby girl who is born on dated 03/10/2004 at Assam and the newly born girl is residing with me along with my parents-in-laws.
5. I further say and submitted that the complaint lodge by my mother namely Chitraben Dilipbhai Lokhande is not correct and true in stating in the complaint that Nepalsing @ Nepali @ Nepalray abducted/kidnapped me from their legal guardianship but I on my own will and wish went with the Nepali @ Nepalray who is now my legally wedded husband and also a legal father of my girl child.
6. I further say and submitted that presently I am residing at Assam with the father and mother of the present applicant, i.e. Nepalsing and with our (Mine and applicant) daughter happily.Page 9 of 18
R/CR.A/138/2015 JUDGMENT
7. I further say and submit that if present application is allowed in favour of the applicant, i.e. my husband I do not have any objection and I being a original prosecutrix myself on my own will and wish and in my full consciousness stating that applicant may be pleased to release on bail / suspend the sentence in the interest of justice by taking a sympathetic view."
The said affidavit is ordered to be taken on record.
7. Further, learned Advocate Mr. Hardik A. Dave has submitted that the prosecutrix had left the house of her parents on her own will. It is further submitted that none of the ingredients of Sections 363 and 366 of the Indian Penal Code are fulfilled. Learned Advocate has placed reliance on the judgment dated 10.03.2015 of the Apex Court in the case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat in Criminal Appeal No.230/2013 and also the judgment in the case of Alamelu v. State reported in (2011) 2 SCC 385.
Page 10 of 18R/CR.A/138/2015 JUDGMENT Learned Advocate Mr. Hardik A. Dave has relied on the subsequent facts and the facts which have emerged during the trial and even during the post trial. It is further stated that the prosecutrix was never examined and had the prosecution even tried to search her, the sentimental approach of the learned Judge would not have crept in to see that the accused who was in love with a girl was subjected to 10 years of incarceration for the offences punishable under Sections 363 and 366 of the Indian Penal Code. Considering the above, it is submitted that this is a fit case where powers are to be exercised by this Court and the judgment and order of the learned Additional Sessions Judge, Surat requires to be upturned by this Court.
8. Per contra, learned Additional Public Prosecutor Mr. K.L. Pandya for the respondent - State has taken this Court through the evidence and has submitted that the judgment and order of Page 11 of 18 R/CR.A/138/2015 JUDGMENT the learned Judge is not such which calls for interference on the facts.
9. I would like to refer to the following decisions :-
a) Alamelu v. State reported in (2011) 2 SCC 385,
b) Mohd. Imran Khan v. State (Govt. of NCT of Delhi) reported in (2011) 10 SCC 192,
c) S. Varadarajan v. State of Madras reported in AIR 1965 Supreme Court 942,
d) Shyam and Another v. State of Maharashtra reported in AIR 1995 Supreme Court 2169,
e) Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr. reported in 2009 3 G.L.H. 664,
f) Mussauddin Ahmedabad v. State of Assam reported in (2009) 14 SCC 541,
e) Bhupatbhai Somabhai Sardiya v. State of Gujarat reported in (2012) 31 GHJ 140,
f) Vinod Kumar v. State of Kerala reported in (2014) 5 SCC 678, Page 12 of 18 R/CR.A/138/2015 JUDGMENT
g) K.P. Thimmappa Gowda v. State of Karnataka reported in AIR 2011 SCW 2281 and
h) Judgment dated 10.03.2015 of the Apex Court in the case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat in Criminal Appeal No.230/2013 and
i) Manoharlal v. State of M.P. reported in JT 2014 (13) SC 125.
10. It is necessary to refer to the Provisions of Section 363 and 366 of the Indian Penal Code, which reads as under :-
"363. Punishment for kidnapping :- Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
XXX XXX XXX
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she Page 13 of 18 R/CR.A/138/2015 JUDGMENT will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid].
11. I deem it relevant to reproduce hereinbelow certain observations made by the respective Courts :-
In S. Varadarajan v. State of Madras (supra) "She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on Page 14 of 18 R/CR.A/138/2015 JUDGMENT the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was not uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own that perhaps an unlettered girl hailing from a rural area."
12. Having heard learned Advocates appearing for the parties, I am of the opinion that the decision in the case of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan (supra), Alamelu (supra) and Vinod Kumar (supra), Satish Kumar Jayanti Lal Dabgar (supra) and Manoharlal (supra) would apply to the facts of this case.
13. In the facts of this case, by efflux of time, both - the prosecutrix and the appellant have got married and the prosecutrix has also given birth to the child of the appellant. It is an admitted position as it emerges from the record that the appellant and the prosecutrix were fatally in love with Page 15 of 18 R/CR.A/138/2015 JUDGMENT each other. The learned Judge has gone more on morality and in an Sessions Case which is of the year 2012, without even waiting for the prosecutrix and even without recording her testimony has inflicted imprisonment for 10 years and 5 years under Sections 363 and 366 of the Indian Penal Code and the peculiar lacunae found is that the prosecutrix has not been examined by the learned Judge.
14. The prosecutrix is present before this Court with her minor child. She confirms the name of the prosecutrix in the Sessions Case. She confirms that she has married the accused who is in jail during the trial and she states that she has a child out of the wedlock. She states that she resides with the parents of the accused herein. This information and this enquiry is sufficient to believe the statement made by learned Advocate for the appellant Mr. Hardik A. Dave.
Page 16 of 18R/CR.A/138/2015 JUDGMENT
15. Considering the submissions advanced by the learned Advocates, the Affidavit filed by the prosecutrix, her presence in the Court with her in-laws as also the facts of the case, I deem it just and proper to reduce the sentence of the appellant in the special circumstances of the case to the period already undergone by him. The accused shall be released forthwith, if he is not required in any other offence. Fine paid, if any, is maintained.
16. Hence, the judgment and order dated 19.09.2014 of the learned 4th Additional Sessions Judge, Surat in Sessions Case No.230/2012 is modified to the above extent.
17. As the above Criminal Appeal has been allowed, the Criminal Miscellaneous Application No.5752/2015 (for grant of bail) stands disposed of. Record and proceedings, if any, be sent to the concerned Trial Court forthwith.
Page 17 of 18R/CR.A/138/2015 JUDGMENT Sd/-
(K.J. THAKER, J.) CAROLINE Page 18 of 18