Thakore Gabhaji Shankerji vs State Of ... on 11 April, 2014

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Gujarat High Court

Thakore Gabhaji Shankerji vs State Of ... on 11 April, 2014

Bench: R.D.Kothari

          R/CR.A/262/2012                                   JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       CRIMINAL APPEAL NO. 262 of 2012



FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE R.D.KOTHARI

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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, 1950 or any
     order made thereunder ?

5    Whether it is to be circulated to the civil judge ?

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                THAKORE GABHAJI SHANKERJI....Appellant(s)
                                Versus
               STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MS KRISHNA U MISHRA, ADVOCATE for the Appellant(s) No. 1
MS.REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
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          CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI

                               Date : 11/04/2014


                              ORAL JUDGMENT

1. The appellant is convicted for the offence under Page 1 of 7 R/CR.A/262/2012 JUDGMENT Sections 363, 366, 376 of IPC. Learned Additional Sessions Judge has imposed the sentence of rigorous imprisonment for the period of four years for the offence under Section 363 of IPC, 5 years rigorous imprisonment for the offence under Section 366 of IPC and has imposed sentence of rigorous imprisonment for the period of seven years for the offence under Section 376 of IPC. Learned Additional Sessions Judge has also imposed sentence of fine for each of the offences.

2. It appears that three accused persons were tried by the learned trial Court. However, two accused persons came to be acquitted and the present appellant came to be convicted.

3. The complainant is resident of village Sobhasan, Taluka and District Mahesana. Father of the victim has lodged a complaint on 05.11.2010 at Mehsana Taluka Police Station. It is say of the complainant that on 28.10.2010, while he had gone for his job, Hetalben (victim) who was at the residence had gone out of the house on the pretext going to answer nature's call and as she did not return till the late night, the complainant's family had searched for victim at nearby places. Lateron he has lodged the present complaint. It is say of the complainant that at the time of incident, victim was aged 15 years.

4. It appears from the trial court record that prosecution has examined 13 witness. Learned trial Court has considered the evidence produced before it and upon considering the evidence and submissions made by learned advocate for the prosecution and learned advocate for defence, has convicted the present appellant.

5. Heard the learned advocate Ms.K.U.Mishra for the Page 2 of 7 R/CR.A/262/2012 JUDGMENT appellant and Ms.Reeta Chandarana, learned APP for the State - respondent.

6. Learned advocate for the appellant has drawn attention to the evidence of victim. Particularly in her crossexamination, it was submitted that though consent is not relevant. However, in the circumstances of the case, victim who had been with the appellant for 78 days, has sufficient opportunity to run away or to make complaint and in that sense there was consent on the part of the victim. It was pointed out from the evidence that at difference places victim and the appellant had stayed at different time. Learned advocate has also referred evidence of Doctor (PW1). Beside that relying upon two unreported judgment of this Court in in the case of Bhagirath @ Bhato Pravinsin Balvantsinh Vaghela versus State of Gujarat in Criminal Appeal No.188 of 2009 and Mohansinh Alias Pappusinh Roopsinh Rajput versus State of Gujarat in Criminal Appeal No.1243 of 2008. Learned advocate has submitted that if this Court is not inclined to interfere with the conviction of the appellant, sentence may be reduced to the period already undergone. Reliance was also placed on Ravinder versus State of M.P. reported in (2006) 9 SCC 590.

7. On the other hand, learned APP has supported the order under challenged and has submitted that learned Sessions Judge has considered all the relevant aspect and no interference is called for in the judgment. Learned APP makes available the jail remarks.

8. Learned trial Court has referred the evidence on record and has held that from the oral evidence and documentary evidence, it is established that appellant has taken away the victim to Page 3 of 7 R/CR.A/262/2012 JUDGMENT Mehsana, Shankheri, and from there to Surel. That there was no consent of the victim's guardian in that regard and hence, appellant has committed offence under Section 363 of IPC. The conclusion is sweeping. In other words, there is no basis for this conclusion, although the judgment is fairly lengthy.

9. First about age of the victim, it is the say of the complainant that victim was aged about 15 years at the time of incident. It is say of the defence that she was aged 18 years at that time. Trial Court has believed age less than 15 years. Age of the victim may be believed around 15 years.

10. In order to consider whether appellant has committed offence of kidnapping or abduction or not, evidence of complainant

- father of victim would be important and material. It is the evidence of guardian or father of victim that would be determinative of offence of kidnapping or abduction. If we refer the evidence of the complainant, say of the complainant in his evidence is thus ; that he does not know about the love affair between victim and accused. That he does not know that they both were going and coming together or that they were staying together or not. That he was not aware that victim and appellant wanted to tied by marital cord. Lateron in his evidence, he says that whether victim was going to the residence of appellant, often or not he does not know. Say of the complainant in his examination inchief is more or less of formal nature. It may be noted that no even a word stated by the complainant in his examination inchief on the basis of which, it can be said that victim was in lawful guardianship of father and appellant has taken her away from lawful guardianship. It may also be noted that complainant says that appellant is his "brother" in distant relation. Appellant was residing nearby the Page 4 of 7 R/CR.A/262/2012 JUDGMENT complainant's house.

11. Together with the above nature of the complainant's evidence, if we refer the evidence of victim, it is case of prosecution that on the day of incident, she had left the residence on the false pretext that she is going to answer nature's call. She had said to have gone at about 2 pm. It is her say that appellant met her and from there they both were at Mahesana and different places. Search for victim was started in late evening and complaint was lodged after 67 days after they were found.

12. In view of above evidence, it cannot even prima facie be said that there is any case of kidnapping or abduction of the victim by the appellant. Therefore, no case for offence under Section 363 of IPC.

13. Similarly case under Section 366 of IPC falls. One of the essential ingredients for offence under Section 366 of IPC is kidnapping and abduction. Case of kidnapping is as stated above, is not possible to be believed. Therefore, the case under Section 366 is also falls.

14. As to the offence under Section 376, Dr. Zala PW2 in his evidence says that after recording the history, the victim was referred to gynaecologist. The gynaecologist has given the report, says Dr.Zala that - victim has given the history that for last three months, she has indulged in sexual intercourse, it was with her consent. Dr. Zala found that there was no injury mark either on the victim or on the private part of accused. That victim was used to sexual intercourse. However, it appears that victim had no such relations with any other person. The medical certificate of Page 5 of 7 R/CR.A/262/2012 JUDGMENT victim is at Exh.26. FSL report is at Exh.61 and 62. It says that no blood or semen found on sample A, B, C nor it was found on sample K3 and L7. K3 is a sample of pubic hair of the victim and L7 is sample of pubic hair of accused. Considering the material on record i.e. medical evidence, FSL report and evidence of victim, alternate submission of learned advocate for appellant may be accepted. It is also pertinent to note that the victim in her evidence says that after the incident, she has married. Father of the victim also agrees in his evidence that after the incident, marriage of victim has taken place.

15. Head note of Ravindra's case (supra) reads thus : "Penal Code, 1860 - S. 376 - Reduction of sentence below statutory minimum prescribed under -

Permissibility - Supreme Court while upholding conviction under S. 376 reducing minimum statutory sentence of seven years' RI imposed by the trial court and affirmed by High Court, to period of imprisonment already undergone, of about four years - Held, in the facts and circumstances of the case, this is a fit case where sentence of imprisonment awarded should be reduced to period already undergone."

16. In two above referred judgments of this Court, relied on by the advocate for the appellant in Criminal Appeal No.1243 of 2008, victim was aged about 14 years 4 months 12 days on the date of incident. In that case, this Court had reduced the sentence for offence under Section 376 of IPC to 4 ½ years and in Criminal Appeal No.188 of 2009, victim was aged 13 years and this Court had reduced sentence for offence under Section 376 of IPC from 7 years to 5 years rigorous imprisonment.

Page 6 of 7

R/CR.A/262/2012 JUDGMENT

17. In view of above discussion, sentence for imprisonment under Section 376 requires interference. Upon considering the submission by learned advocate for the parties and considering the material on record, sentence for offence under Section 376 requires to be reduced to four years rigorous imprisonment and Rs.1,000/ fine. Trial court has also imposed six months imprisonment in case of default in payment of fine, this default sentence in case of non payment of fine is not interfered with.

18. In view of above, the appeal is partly allowed. Conviction of appellant for the offence under Section 363 and 366 of IPC is hereby quashed and set aside. Conviction for the offence under Section 376 of IPC is upheld. Sentence for the offence under Section 376 is modified and substituted as sentence of imprisonment for four years rigorous imprisonment and Rs.1,000/ fine plus six months further imprisonment in case of default of payment of fine.

19. Direct service is permitted.

(R.D.KOTHARI, J.) Amar Page 7 of 7

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