Gujarat High Court
Dasarathbhai vs State on 11 January, 2011
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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CR.A/244/2009 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 244 of 2009
With
CRIMINAL
APPEAL No. 745 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE VIJAY MANOHAR SAHAI
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DASARATHBHAI
JAGABHAI @ JAGMALBHAI - Appellant
Versus
STATE
OF GUJARAT - Respondent
=========================================================
Appearance
:
MR.MRUDUL
M BAROT for
Appellant.
MS CM SHAH, ADDL.PUBLIC PROSECUTOR for the
State.
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CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE VIJAY MANOHAR SAHAI
Date
: 11/01/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.L.DAVE) These appeals arise out of the judgment and order dated 15.12.2008 rendered by the Sessions Court, District : Rajkot, Gondal camp at Dhoraji, in Sessions Case No. 107/2008, convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code [ IPC for short] and sentencing him to suffer R.I for ten years with a fine of Rs. 1000/-, in default, S.I for one month.
2. Since these two appeals arise out of the same judgment and order, they are heard and decided together by this common judgment.
3. Criminal Appeal No. 244/2009 is preferred by the original convict, Dasarathbhai Jagabhai @ Jagmalbhai against his conviction under Section 376 IPC; whereas Criminal Appeal No.745/2009 is preferred by the State against acquittal of the original accused, the respondent in the appeal, for the offences punishable under Sections 363 & 366 IPC.
4. The brief facts of the case are that one Sureshbhi Bhikhabhai Gohel lodged a complaint with Jamkandorana Police Station alleging that accused Dasarathbhai Chauhan had kidnapped/adducted his daughter, aged 16 years, on 28/29th March, 2008 from village Ishwaria. On the basis of that FIR alleging offences punishable under Sections 363 & 366 IPC, offence was registered at C.R.No.I. 14/2008. Investigation was started. Ultimately, the accused and the prosecutrix came to be apprehended. It was found that in addition to sections 363 & 366 IPC, an offence punishable under Section 376 IPC was also alleged to have been committed by the accused and charge sheet was, therefore, filed for those offences. As the offences were triable by the Court of Sessions, learned J.M.F.C., Dhoraji committed the case to the Court of Sessions, Gondal and Sessions Case No.107/2008 came to be registered.
5. Charge was framed against the accused at Exh.6 for the offences punishable under Section 363, 366 & 376 IPC. The accused pleaded not guilty to the charge and came to be tried. The trial Court found that the prosecution was not able to successfully prove against the accused the offences punishable under Sections 363 & 366 IPC and recorded his acquittal therefor, whereas it found that the offence of rape was established and, therefore, convicted him, as stated hereinabove. Hence, these appeals.
6. Heard learned advocate Mr. Barot for the appellant-accused and learned A.P.P. Ms Shah for the State.
7. Upon hearing the learned advocate Mr.Barot for the appellant-accused and learned A.P.P for the State, what emerges is that as per the prosecution case, the incident occurred on 28/29th March, 2008; whereas, as per the birth-certificate of the prosecutrix (Exh.34), the prosecutrix was born on 9.11.1991. As such, without any dispute, the age of the prosecutrix was more than 16 years at the relevant time. The deposition of the prosecutrix, therefore, would be very relevant. The prosecutrix is examined at Exh.33. In her examination-in-chief, she says that the accused used to come to her home casually. He used to ply auto-rickshaw. He stayed together with the family of the prosecutrix for one month. Then he started staying separately. He used to call the prosecutrix to his house and used to have romantic dialogue with her. She says that on the date of the event, in the afternoon, the accused went to her and told her to join him when he would come to village Ishwaria on 28.6.2008 during night. The prosecutrix says that she, therefore, went to Ishwaria Bus Station on her own and from there, she went to Dhoraji by a private luxury bus, and from there, got a bus for Rajkot and then went to Ahmedabad and then to Gandhidham. She says that during this period they stayed together by hiring a house. According to her, she denied for having physical relationship with the accused. She insisted on getting married, but the accused told her that she had still time of about six months to go for the age of marriage. The accused had consulted an advocate and was advised that the prosecutrix was underaged by six months for qualifying herself for getting married. The prosecutrix, in her examination-in-chief, has stated that the accused forced her to have physical relationship. She says that they were staying at the house of the sister of the accused for 15 days, where she learnt that the accused is a harijan. She says that the accused used to establish physical relationship forcibly and that he made her to agree. The prosecutrix says that she has stated in her statement that the police has collected her clothes.
8. During her cross-examination, the prosecutrix admits that she had developed relationship of love with the accused when the accused came to village Ishwaria and started staying with her family. The accused used to give all his income to the father of the prosecutrix. She admits that there was a quarrel between her mother and the accused and thereafter she had developed love affair with the accused. Apart from other suggestions and denials, the prosecutrix has admitted that the accused used to tell her that she was younger by 4-5 months for getting married and that he had consulted an advocate. She says that she had insisted upon the accused for getting married to her on 4-5 occasions and every time he used to tell her that she was underaged. She says that thereafter she had no dispute, but had dispute only whenever he insisted for physical relationship. She says that whenever she had a dispute, he would persuade her and she would then agree (to the proposal for establishing physical relationship).
9. On the basis of the above deposition, what was argued by Mr. Barot, learned advocate for the appellant-accused, is that the prosecutrix used to consent to establish physical relationship on persuasion by the accused. Though initially she may have objected to, looking to the age of the prosecutrix (more than 16 years), the trial Court was not justified in convicting the accused.
10. The learned advocate for the accused submitted that the appeal by the State is not justified in light of the fact that even as per the evidence of the prosecutrix being examination-in-chief, offences under Sections 363 & 366 IPC cannot be said to have been committed by the accused and, therefore, that appeal may be dismissed and this appeal by the accused may be allowed.
11. Learned A.P.P has opposed this appeal. She submitted that there was no consent at all. The victim was forced by the accused to establish physical relationship with him, but not out of her free will.
12. Having regard to the rival submissions, firstly looking to the evidence of the prosecutrix herself, it is clear that there was no act of kidnapping or abduction, as claimed to have been established by the prosecution. The girl left the house at her volition as can be seen from her deposition. As there was no involvement of the accused in the act, no interference with the order of acquittal is warranted. The appeal by the State, therefore, must fail.
13. So far as conviction under Section 376 IPC is concerned, it is again based on a relevant interpretation of evidence of the prosecutrix. The prosecutrix has stated that she used to deny the accused to establish physical relationship. She admits to have been stated by the accused to be underage. It was the accused himself to have consulted a lawyer for getting married. As such, we find absence of mens rea on the part of the accused.
14. We have closely read the cross-examination of the prosecutrix. We find that the prosecutrix objected for having coitus with the accused before marriage, which the accused could have established only upon her consent upon his persuasion. Therefore, at the time of having coitus, she used to consent on being persuaded by the accused. Differently put, if she was a consenting party to the coitus, from the provisions contained in Section 375 IPC it is clear that if for having coitus, the prosecutrix had consented and if her age is more than 16 years, it was consent. Therefore, it can be said that the relationship was established by the accused with the prosecutrix with her consent, which would not amount to the offence of rape.
15. In light of the above material evidence on record, conviction appeal of the accused is accepted. The conviction and sentence awarded by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.3, Gondal camp at Dhoraji, in Sessions Case No.107/2008 by judgment and order dated 15.12.2008, for the offence punishable under Section 376 IPC, is hereby set aside. The appellant-Dasarathbhai Jagabhai @ Jagmalbhai be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant.
15.1 The appeal filed by the State against acquittal of the accused for the offences punishable under Sections 363 & 366 IPC is hereby dismissed.
[A.L.Dave,J.] [V.M.Sahai,J.] (patel) Top