Gujarat High Court
State Of Gujarat vs Alpeshbhai Veljibhai Paragi on 30 November, 2015
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/19424/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19424 of
2015
In CRIMINAL APPEAL NO. 1233 of 2015
With
CRIMINAL APPEAL NO. 1233 of 2015
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STATE OF GUJARAT....Applicant(s)
Versus
ALPESHBHAI VELJIBHAI PARAGI....Respondent(s)
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Appearance:
MR KL PANDYA, ADDL.PUBLIC PROSECUTOR for the Applicant(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 30/11/2015
ORAL ORDER
1. Leave to appeal to assail the judgment and order dated 14.07.2015 recording acquittal of the respondent for the offences under Sections 363, 366 of the Indian Penal Code ( for short "IPC" ) passed by the learned Second Additional Sessions Judge, Amreli at Rajula in Sessions Case No.29 of 2012 is sought under Section 378 of the Code of Criminal Procedure ( for short "Cr.P.C.").
2. Having considered the contentions raised by the learned APP, it cannot be disputed that for the purpose of making out a case for the offences under Sections 363, 366 of IPC the prosecution was under an obligation to establish the taking away of the minor out of keeping of the guardian of such minor against the consent and wish of such guardian.
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R/CR.MA/19424/2015 ORDER
Therefore it is required to be seen as to whether the prosecutrix victim was below the age of 18 years and was forcibly taken away by respondent.
3. The learned APP has taken this Court through the impugned judgment wherefrom it transpires that the claim of the prosecutrix that she was abducted by three persons was held not to be established in view of the material omission to that effect in the statement made by prosecutrix under Section 161 of the Cr.P.C. Furthermore, the evidence as to the age of the prosecutrix was also found deficient on various counts. In absence of ossification test the reliance was placed only on the school leaving certificate produced at Exh.26 by the school, who, in turn, had obtained the said certificate on transfer of prosecutrix from another school. The basis for recording of the date of birth in the said school leaving certificate was not established and in view of the settled legal position that such basis must be established, the findings of the trial court that the prosecutrix was a minor at the relevant point of time cannot be faulted with. Thus neither abduction nor the prosecutrix being minor came to be established before the trial court beyond reasonable doubt and therefore there is no question of granting leave to appeal as contended by the learned APP. Accordingly the application fails and is dismissed. Rule is discharged.
4. Consequently the appeal fails and is dismissed.
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