Gujarat High Court
Shaileshbhai Manubhai Makwana vs State Of ... on 20 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/1889/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1889 of 2010
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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SHAILESHBHAI MANUBHAI MAKWANA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 20/03/2015
ORAL JUDGMENT
1. The present appellant has preferred this Page 1 of 9 R/CR.A/1889/2010 JUDGMENT appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 24.2.2010 passed by the learned Sessions Judge, Amreli in Sessions Case No. 39/2009, whereby, the learned trial Judge has convicted the appellant under sec. 363 of IPC and sentenced to undergo R/I for seven years and to pay a fine of Rs. 1000/-, in default, to undergo further R/I for three months. The appellant is convicted under sec. 366 of IPC and sentenced to undergo R/I for ten years and to pay a fine of Rs. 2000/-, in default, to undergo further R/I for three months. The appellant is convicted under sec. 376 of IPC and sentenced to undergo R/I for ten years and to pay a fine of Rs. 2000/-, in default, to undergo further R/I for three months, which is impugned in this appeal.
2. The brief facts of the prosecution case is as under:
2.1 That on 25.2.2009 the accused had taken away the minor girl of complainant Arvindbhai Babubhai Makwana from the lawful custody of complainant by giving false promise to marry with her. The accused had taken away the prosecutrix from 25.2.2009 to 15.3.2009 from the lawful custody of the complainant and taken her at Surat and committed rape on her at different places, and the accused had also threatened her to kill Page 2 of 9 R/CR.A/1889/2010 JUDGMENT if she informs about it to anybody, and therefore, filed the complaint before the Babra Police Station. The Investigating Officer, on completion of the investigation, submitted charge-sheet before the learned Metropolitan Magistrate in Criminal Case No. 2450 of 1993. The case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Babra, committed the case to the Court of Sessions, which was numbered as Sessions Case No. 39/2009.
3. The accused was charged vide Ex. 2. The appellant - accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses:
1. Arvindbhai Babubhai Makwana Ex. 7
2. Prosecutrix Ex. 11
3. Virji Lakhmanbhai Metaliya Ex. 13
4. Dr. Shakirbhai Sirajbhai Vora Ex. 15
5. Dr. Shetal Samirbhai Prajapati Ex. 23
6. Chandaben Janmshankar Joshi Ex. 28
7. Hareshbhai Manharlal Shukla Ex. 31
8. Usmanbhai Nurmahmadbhai Ex. 32
9. Sarmanbhai Rambhai Varu Ex. 34 Page 3 of 9 R/CR.A/1889/2010 JUDGMENT
5. The prosecution has also produced the following documentary evidence before the trial Court.
1. Report of PSO Babra to S.R. Varu Ex. 33
2. Complaint Ex. 8
3. School Leaving Certificate of prosecutrix Ex.30
4. Arrest panchnama of accused Ex. 14
5. Panchnama of clothes of prosecutrix Ex. 37
6. Medical certificate of Prosecutrix issued by Babra C.H.C. Ex. 19
7. Medical certificate of prosecutrix Ex. 25
8. Receipt of muddamal Ex. 35
9. Report of Chemical Analyser Ex. 36
6. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Sessions Judge, Amreli, vide impugned judgment and order dated 24.2.2010 held the appellant - accused guilty to the charge levelled against him under sec. 363, 366 and 376 Page 4 of 9 R/CR.A/1889/2010 JUDGMENT of IPC 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 passed by the learned Sessions Judge, Amreli, the present appellant has preferred this appeal.
9. Heard Mr. Pratik Barot learned advocate for the appellant appointed by Legal Aid Committee and Ms. Monali Bhatt learned APP for the respondent-State.
10. Mr. Barot learned advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under section 363 of IPC is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Barot learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside. Mr. Shah submitted Page 5 of 9 R/CR.A/1889/2010 JUDGMENT that the impugned judgment and order passed by the learned trial Judge convicting the appellant, is even otherwise illegal, unjust, improper and deserves to be quashed and set aside.
11. Per contra, learned APP Ms. Bhatt has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Bhatt learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal deserves to be allowed.
12. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. It is an admitted position that this is a case where two people fatally in love with each other eloped for a period of one month which is borne out from the evidence and oral testimony of the prosecutrix.
This aspect and the decision of the Apex Court in the case of Alamelu v. State reported in (2011) 2 SCC 385 has been over-looked by the learned trial Judge. It is an admitted position of the fact as Page 6 of 9 R/CR.A/1889/2010 JUDGMENT submitted by Mr. Pratik Barot learned advocate for the appellant that the girl was above the age of 16 years which is ascertained, and therefore, there is no statutory rape as per section 376 of IPC because the prosecutrix was a consenting party as per the medical evidence, and therefore, conviction under section 376 is false. The factum of her going with the accused is admitted. It is an admitted fact that they have gone with each other willingly, and therefore, it can be said that the conviction of the accused was a moral conviction under section 363 of IPC, which reads as under:
"363. Punishment for kidnapping :-
Whoever kidnaps any person from [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."
13. While recording of acquittal for the offence punishable under section 376 of IPC, it cannot be said that the learned trial Judge was right in convicting the accused under section 363 and 366 of IPC, and therefore, the conviction under section 363 and 366 of IPC cannot be sustained in light of the decision in the case of Bhartiben Page 7 of 9 R/CR.A/1889/2010 JUDGMENT W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr., reported in (2009)3 G.L.H. 664, Alamelu v. State reported in (2011) 2 SCC 385, and Vinod Kumar v. State of Kerala reported in (2014) 5 SCC 678 which would apply to the facts of this case as in this case also, she having moved from place to place with the accused, it would not be out of place to state that she was a consenting party. It cannot be said that she was abducted or was seduced. It is an admitted position of fact that she was consistently taken to various places by the accused in public transports. However, no attempt has been made by her to seek the assistance of any person. The prosecutrix could have resisted the attempts in the presence of so many people. This is an unnatural conduct. Even if it is believed from the evidence that she was lured, however, it is very clear that she had not lured but had eloped with the accused and parents were aware of it. In that view of the matter, the conviction under section 363 and 366 of IPC requires to be quashed and set aside.
16. In view of the aforesaid discussion, this Court is of the view that the Court below has committed a serious error in law as well as on facts in convicting the accused for the alleged offences. The findings recorded by the Trial Page 8 of 9 R/CR.A/1889/2010 JUDGMENT Court are not only unjust but also improper and hence, the impugned judgment and order of conviction and sentence dated 24.2.2010 passed by the learned Sessions Judge, Amreli in Sessions Case No.39/2009 requires to be quashed and set aside.
17. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 24.2.2010 passed by the learned Sessions Judge, Amreli in Sessions Case No. 39/2009 is hereby quashed and set aside. The appellant-accused is ordered to be set at liberty, forthwith, if he is not required in any other case. R & P to be sent back to the trial court forthwith.
(K.J.THAKER, J) mandora Page 9 of 9